Judge-controlled docket proposed for Charleston

Charleston is poised to become the second county in South Carolina where judges, rather than prosecutors, control the criminal court docket.

The county’s chief administrative judge, Markley Dennis, has asked state Supreme Court Chief Justice Donald Beatty to sign a proposal that would voluntarily transfer power over the general sessions docket away from 9th Circuit Solicitor Scarlett Wilson’s office and create a docket-control pilot program in Charleston County.

Wilson said Dennis’ administrative order stems from her work with the county’s Criminal Justice Coordinating Council and a $2.25 million grant they secured from The John D. and Catherine T. MacArthur Foundation’s Safety & Justice Challenge, an effort to improve the criminal justice system and reduce jail and prison populations throughout the country.

The order, which is modeled after Spartanburg County’s judge-controlled docket, was circulated among members of the defense bar earlier in the year before landing on Beatty’s desk, said  Drew Carroll, president of the Charleston County Association of Criminal Defense Lawyers.

He said Dennis, who declined to discuss the order before it received Beatty’s approval, was “very eager to get it in place.”

“Everybody anticipates that this process is going to be implemented in the very near future,” he added. “But it’s Chief Justice Beatty’s timeline that matters.”

Beatty did not respond to interview requests.

New deadlines for criminal cases

Lawyers Weekly obtained a copy of Dennis’ draft order, which would establish a 180-day track for all criminal cases except those involving murder and criminal sexual conduct — they have a yearlong track. The chief administrative judge has the power to grant time extension requests from the defense or prosecution in all cases.

Under the order, the solicitor’s office would have to provide discovery to the defense within 60 days of a defendant’s arrest. If a law enforcement agency fails to share investigative files with the solicitor within 60 days of a warrant being issued the chief administrative judge can dismiss the case with prejudice.

The order also calls for status conferences to be held within 90 days of a defendant’s arrest and for scheduling conferences to take place about 150 days from the date of arrest. If the solicitor wants to offer a plea deal, she must make the offer in writing at least 30 days before the scheduling conference.

The general sessions docket would be published at least 30 days before each term of court, and a maximum of 20 cases could be scheduled for trial for each term, unless multiple judges are assigned to a term. Then the judge can adjust the docket accordingly.

Carroll said the order “makes it imminently clear that there will be a judge available to handle evidentiary matters or issues that come up over the life of the case.”

“You can be proactive and get before a judge and get a resolution that may ultimately determine the direction a case travels: to plea, trial or whatever other disposition,” he added.

Landmark decision, then delay

Dennis’ order follows the state Supreme Court’s controversial 2012 decision in Langford, which held that the unique South Carolina statute that vested solicitors with exclusive control over the criminal docket was a separation-of-powers violation and ripe for abuse.

The South Carolina Public Defender Association had argued in Langford that solicitors used their power over the trial calendar to delay weak cases and force defendants to languish in jail for years, essentially serving out sentences before having their day in court.

Public defenders also complained that solicitors could rush cases to trial before the defense had a chance to prepare, overload public defenders with back-to-back cases, repeatedly and unnecessarily call defendants to court after they posted bond, and steer cases toward certain judges — a practice known as judge shopping.

For all the feathers it ruffled, Langford, which upset prosecutors and some judges who weren’t keen on taking on new responsibilities, has not resulted in any sweeping change. The Supreme Court issued an administrative order alongside Langford that would have created a statewide judge-controlled docket system. But the order was held in abeyance amid uproar over the decision.

Beatty later created a committee to study the docket control issue. He received a draft report from the group in 2014. So far, it appears that nothing has come of that report.

Wilson wrote in an email that in competing for the MacArthur grant she “saw an opportunity” to get the money that was necessary to implement Langford in her county.

“In my view,” she added, “the requirements of Langford cannot be met by most counties without increased resources for the judiciary, to include the clerk’s office.”

Four years ahead of the curve

Spartanburg changed its docket system long before anyone was talking about Langford. In 2008, then-Solicitor Trey Gowdy, now a congressman, and the circuit’s administrative judge at the time, Roger Couch, agreed to experiment with a new way of calendaring cases.

Now-retired Chief Justice Jean Toal, who agreed with the majority’s finding in Langford that the solicitor-controlled docket was unconstitutional, had encouraged Gowdy and Couch to make a change, said Spartanburg’s top public defender, Clay Allen.

He and county Solicitor Barry Barnette spoke glowingly about their judge-controlled docket, which required the hiring of two new staffers for the clerk’s office.

“It used to be very frustrating to me when solicitors, if they didn’t want to try a case or their case wasn’t ready for whatever reason, would just skip it,” Allen said. “Now everybody has to get permission from the court to delay a case that’s on the docket and we’re getting a lot more cooperation from both sides. We can basically agree about whether a case needs to be delayed.”

Barnette echoed Allen in asserting that the judge-controlled docket had spurred collaboration among prosecutors and defense attorneys.

“We communicate more now and the more communication you have the more likely you are to resolve a case,” he said. “And that’s what this system encourages. It makes us have more contact with the defense bar as well as the judges.”

Follow Phillip Bantz on Twitter @SCLWBantz