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A failure to communicate? Criminal defense lawyers excluded from docket control talks

News that S.C. Supreme Court Chief Justice Jean H. Toal had been meeting with solicitors to discuss a new system for managing the state’s criminal trial docket – and that they were close to going public with a plan – hit some prominent members of the defense bar like a punch in the gut.Free speech bandages

They had been waiting for an invitation to join Toal’s committee on docket control since she first talked about creating the group late last year. That announcement came in the wake of the high court’s determination in State v. K.C. Langford III that the practice of giving solicitors exclusive control over scheduling cases for trial was unconstitutional and ripe for abuse.

Langford had spent 673 days in jail before his case was finally called to trial, prompting his civil rights suit against the state. The S.C. Public Defender Association argued in an amicus brief filed on his behalf that solicitors leverage and misuse their scheduling power – one that is vested in no other group of prosecutors in the nation – in several different ways, from forcing some defendants to languish in jail to scheduling cases to be heard by pro-prosecution judges, essentially judge shopping.

In an order signed by Toal and her four fellow justices last December, the court stated that the docket committee would be composed of a “wide range of stakeholders including representatives from the South Carolina Solicitors’ Association, the South Carolina Public Defender Association, the South Carolina Clerks of Court Association, Court Administration, the practicing bar and the judiciary.”

But so far, Toal has only met with current and former solicitors, rankling several defense bar groups, including the S.C. Association of Criminal Defense Lawyers, whose executive director, Kate “Kitty” Sutton, called out Toal in a news release.

“To approach this process in such a way is not only illogical, it directly contradicts promises that were previously made,” she stated. “We expect the Court to acknowledge the importance the defense plays and not treat our public and private defenders as second-class citizens.”

Sutton said she decided to go public with the concerns after her organization’s president, John E. Duncan, wrote privately to Toal asking to be included in her committee and received no response. The statement, she said, served as a second request for inclusion.

And it certainly got Toal’s attention. She described the press release as a “very odd way to make a request,” adding that “I don’t think it’s all that helpful to have this process conducted in that way.”

Toal said she planned to meet later, possibly as soon as this week, with both the clerks of court and criminal defense lawyers, vowing that “everybody will be included in this complex discussion of what is a major change in the way we do business.”

She expected to release a “drain-the-swamp-order” by summer’s end to begin clearing away the backlog of defendants who have been waiting for two years or longer for a trial. A subsequent order will finalize the state’s new docket-control plan.

“The judges will be much more involved in management than they are now in any other system we have,” Toal said.

Toal and a pair of former solicitors she has appointed to her committee, Sen. Greg Hembree and Rep. Tommy Pope, all indicated that prosecutors will probably be allowed to continue to run the docket until a case reaches a certain age. Then the circuit’s chief administrative judge could step in and take over.

That proposal would mesh with solicitor-backed legislation which the House passed earlier this year, Pope said. The bill, which garnered staunch opposition from the defense bar, would make a slight tweak to the current docket control law by removing the word “exclusively” as it pertains to solicitor power. The bill is co-sponsored by Pope and is being considered by a Senate subcommittee on which Hembree serves.

“We’ve set [the bill] aside to see if we can solve the problem instead of getting all, ‘Whose got the biggest power, is it the court or the General Assembly?’ ” said Hembree, who added that the solicitors were not trying to “sneak up on” the defense bar.

However, Hembree, like many other solicitors, openly disagrees with the S.C. Supreme Court’s landmark decision in Langford. Public defenders had widely hailed that decision as a major victory in their long battle with solicitors.

“I think if we get this all squared away, then nobody’s going to pay any attention to Langford,” he said of the docket committee’s efforts. “Even if you’ve got silly laws on the books you work around them and get things done.”

Follow Phillip Bantz on Twitter @SCLWBantz

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