Two different paths to docket control

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Based on what’s been happening lately in the General Assembly, solicitors seem to have the upper hand in the struggle for control of the criminal trial docket. But public defenders are betting that the legislative effort will be fruitless.

Prosecutors are pushing for a bill that has already passed the House and, if made law, would let them maintain the power to schedule criminal cases for trial, despite a recent S.C. Supreme Court decision that the system is unconstitutional and ripe for abuse. No other state in the country gives its prosecutors exclusive control over court dockets.

Public defenders have criticized the solicitor-backed bill as an attempt to sidestep the court and preserve the status quo, though they have been relatively uninvolved in the legislation. The S.C. Public Defender Association didn’t even testify against the proposal during a House committee hearing.

Unlike the state’s defenders, solicitors have a fulltime lobbyist, are popularly elected and have larger constituencies than most lawmakers, which has traditionally made them a loud and formidable voice in the General Assembly.

“The legislature certainly tends to listen to what they have to say,” said T. Patton Adams IV, executive director of the S.C. Commission on Indigent Defense. But he added that solicitors’ lobbying power isn’t scaring off defenders. After all, they’ve had a hand in some of the most impactful criminal justice legislation in recent years, including sentencing reform.

Adams and S.C. Public Defender Association president Christopher D. Scalzo believe that even if the bill passes the Senate in its current form it won’t pass constitutional muster with the Supreme Court. Both added that Chief Justice Jean H. Toal has already told lawmakers that the legislation appears to be unconstitutional in light of the court’s Nov. 21, 2012 ruling in State v. K.C. Langford III, which spurred the bill.

The bipartisan bill, which was sponsored by House Speaker Bobby Harrell of Charleston, would simply tweak the current docket control statute by striking the word “exclusively” and adding two provisions that say chief administrative judges should hold a hearing when scheduling deadlines are not met.

“I think what we really need on the front end is the solicitors managing the docket,” said state Rep. Tommy Pope, a York County Republican and former solicitor who co-sponsored the legislation. “But if a case gets to dragging out, this will require judicial intervention.”

The president of the Solicitors’ Association of South Carolina, First Circuit Solicitor David M. Pascoe Jr. of Orangeburg, has asserted that the bill addresses the concerns outlined in the Langford decision while codifying the existing law.

Rather than fighting the legislation, public defenders plan to focus their attention on a committee of judges, solicitors, public defenders and private attorneys that Toal is forming to address the docket control issue.

She formed the committee in lieu of implementing an administrative order the court issued with the Langford decision that laid the groundwork for a judge-controlled docket system, including a process for dismissing cases when solicitors took too long to set trial dates. The order, which was slated to take effect Feb. 4, is being held in abeyance.

“This bill is not a comprehensive answer to the problem and does not address the constitutional problems identified in Langford,” Scalzo said. “I think the committee that the chief justice is putting together is a way to comprehensively address the issue.”

During Toal’s state of the judiciary address on Feb. 20, which was delivered after the sources in this article were interviewed, she announced that she wanted Pope and another former solicitor, Sen. Greg Hembree, a Horry County Republican, to serve on the committee. She planned to announce other appointments this week.

Toal didn’t discuss the bill, but she told lawmakers that “one side can no longer control the calling of cases on the criminal roster in South Carolina” and that this should not “be a me against you and us against them situation.”

“No judge can run these dockets,” she said. “It’s a joint cooperative partnership between clerks of court, solicitors, public defenders, defense attorneys and all others involved in the system.”

The fight over docket control had been building for years before it finally came to a head with Langford. Public defenders say solicitors let defendants languish in jail. But prosecutors say judges ultimately have the power to take control of a case if a defendant raises due process issues.

Still, the courts continue to struggle with “enormous backlogs” of tens of thousands of cases, some of which are unacceptably old, said Toal, who expressed disappointment in having to recently send a judge to hear a 15-year-old incest case.

“This isn’t South Carolina,” she said. “The public of South Carolina will not tolerate this.”

Follow Phillip Bantz on Twitter @SCLWBantz