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More than two years have passed since the South Carolina Supreme Court declared that a unique state law that gives prosecutors exclusive control over scheduling criminal cases for trial was unconstitutional and easily abused.

But the same docket management system remains in place today, to the chagrin of defense lawyers who trumpeted the court’s now-dusty Nov. 21, 2012 opinion in State v. Langford.

“In some judicial circuits, the chief administrative judges are attempting to establish procedures to comply with Langford. Over two years after the Langford decision, it is disappointing that there is no statewide guidance,” said Greenwood lawyer Charles Grose. He represented the South Carolina Public Defender Association in Langford.

The group had argued that solicitors used their docket power to delay weak cases and force defendants to sit in jail and serve sentences before they had their day in court.

Public defenders also complained that solicitors rushed cases to trial before the defense had a chance to prepare; overloaded some defenders with back-to-back trials; repeatedly and unnecessarily called defendants to court after they posted bond; and shopped for judges.

Chief Justice Jean Toal had been a sponsor of the docket-control legislation in 1980, when she was serving as a state representative and before she joined the high court, but she agreed with the majority’s finding in Langford that the law was unconstitutional.

She made a passing reference to Langford in her final state of the judiciary address on Feb. 25, saying that the “criminal case docket for circuit court has received new attention in light of Langford.” Then she moved on to a discussion of case backlogs and disposition rates.

Toal will retire at the end of the year, prompting speculation about whether she will attempt to push through a change to the docket control system before she leaves the bench or leave the chore for her successor. Toal did not respond to an interview request.

The Supreme Court had issued an administrative order in conjunction with Langford that laid the groundwork for a new, judge-controlled docket. But then, in an unusual move, the court held its own order in abeyance. It has remained suspended ever since.

“Langford is meaningless,” said Sen. Greg Hembree, a former solicitor. “It was just kind of making a point. … I think it had more to do with power than real progress. There were public defenders making a lot of noise.”

Hembree, a Horry County Republican, acknowledged that a few prosecutors have abused the docket control system over the years, but dismissed those incidents as being rare and isolated. He contends that solicitors have never had exclusive control over the docket because defense lawyers could always ask for continuances or speedy trials.

He added that he served on three separate blue-ribbon committees that scrutinized the docket control system before the Langford opinion was issued and described the experience as disheartening. He was so frustrated that he resigned from the last committee.

“It became a very political experience instead of a problem-solving experience,” he said. “We’ve been working on this problem since 2000. … But I don’t know what’s going to happen, how that debate or discussion will evolve.”

Langford languishing

Bobby Frederick, the immediate past president of the South Carolina Association of Criminal Defense Lawyers, mentioned Langford in a blog post titled, “Another administrative order that won’t be followed.”

“State v. Langford unequivocally states that South Carolina’s current docket system, which is controlled by the prosecuting attorneys, is unconstitutional,” he wrote. “So all defendants are currently being prosecuted in an unconstitutional court system, with no remedy that I can see, and no change anywhere as of yet.”

Frederick published that post in May 2013. Nothing has changed. The state’s solicitors still aren’t eager to relinquish their power over the docket, and circuit judges aren’t keen on taking on the added responsibility of scheduling criminal cases for trial.

“The judges already manage the civil docket, and that’s a big job,” said 16th Circuit solicitor Kevin Brackett, whose jurisdiction includes York and Union counties. “But the civil docket is dwarfed by the criminal docket. To impose that on the judges … they wouldn’t be able to keep track of all the pending cases.”

Joseph McCulloch, a criminal defense lawyer in Columbia, echoed Brackett.

“It’s accurate to say that there is a little bit of anxiety in the judiciary about their ability to just take over the docket,” he said.

Debate continues

Instead of changing the docket system, Toal put together a committee composed of solicitors, public and private defense lawyers, judges, and court staff – but no legislators – to study the divisive docket control issue and report back to the Supreme Court with recommendations.

The docket control committee was formed in early January 2014 and it last met in June, according to Brackett, a member of the group. Supreme Court Justice Donald Beatty chairs the committee, but it is likely that his attention has been diverted as he is being considered for a federal judgeship. He did not return a message seeking comment.

McCulloch, also a committee member, said the group has been reviewing the various orders that administrative law judges throughout the state have cobbled together in attempts to satisfy the Langford ruling absent any direction from the Supreme Court.

“We have had spirited discussion of the perfect order, recognizing that what may work in a larger county like Richland or Charleston may not function so well in Pickens or Dorchester,” he said. “We hope, ultimately, that we can forge an order that is sufficiently flexible to deal with the fundamental problem that Langford dealt with.”

Greenville County is being looked at as a potential model for the rest of the state, according to McCulloch. Prosecutors in Greenville build the daily trial docket and try to publish the list of cases online at least 30 days before they are scheduled for trial. Under Langford, the county’s judges would theoretically still have final say over scheduling.

“Technically, our solicitor still kind of controls the docket. But we have a big notice provision, and if there’s any kind of abuse our judges are receptive for us to bring it to their attention,” said local criminal defense lawyer Chip Price.

In Greenville, if a case isn’t called on the day that it is slated for trial it is rolled over to the next term of court, which saves attorneys and their clients from having to wait all week for their cases to get called to trial.

“Greenville is excellent,” Price added. “We love it up here. It’s a great system.”

But McCulloch sees room for improvement. He wants mandatory status conferences and mediation sessions in criminal cases and argues that bringing the two sides and a judge to the table early in the process could result in more plea deals.

“The point is to get the parties together to force them to be prepared to have a cogent discussion about disposition,” McCulloch said of the status conferences. “And there’s a reason why we require mediation in civil cases. It moves cases forward. It forces everyone to the table. It forces discussion.”

He added, “I think we’re hopefully near the point that the Supreme Court can use the studied efforts of the committee to come up with a template.”

But Brackett, the solicitor, did not seem so confident about a solution being within reach. He contended that requiring status conferences and mediation sessions in all criminal cases could bog down the courts and overload judges and prosecutors.

“You can’t impose some of these plans on a poorly resourced system,” he said. “Some of these solutions being talked about are sort of cart-before-the-horse.”

Follow Phillip Bantz on Twitter @SCLWBantz