South Carolina Lawyers Weekly
While prosecutors continue to control the criminal docket in most parts of the state, Charleston County has been testing a new system that gives the chief administrative judge more power over calendaring cases for trial.
The experiment has been going on for about a year and interviews with local attorneys and the project’s primary architect, Chief Administrative Judge Markley Dennis, indicate that it’s working — though issues have bubbled up that need to be addressed.
“Like anything else, there are positives and negatives. Change in general can be difficult,” said Charleston criminal defense lawyer David Aylor. He reported that the new system has brought more certainty and fairness to the process of scheduling cases for trial and setting discovery deadlines.
“Before, when the solicitor’s office could call it, it was more one-sided,” Aylor added, though he said he’s never had an issue with prosecutors using docket control power to their advantage.
The county’s top prosecutor, 9th Circuit Solicitor Scarlett Wilson, who helped pave the way for the new system by securing a $2.25 million grant, wrote in an email that the pilot program was a “work-in-progress that is continually discussed amongst members of the bar and the Court.”
“It continues to evolve,” she added. “Hopefully, we will see good results sooner rather than later.”
Charleston’s chief public defender, Ashley Pennington, declined to comment.
‘Not how it works in the real world’
The current docket program, which Dennis created in an administrative order, established a 180-day track for all criminal cases except those involving murder and criminal sexual conduct — they have a yearlong track. But Dennis said he’s realized that the 180-day track is an “unrealistic goal.”
“In a perfect world, discovery comes in 45 days and police officers have finished the investigation and everything’s in place,” he said. “But that’s not how it works in the real world.”
Now, Dennis is crafting another proposed order that would establish a three-tier bracket system for felony cases, with a 210-day track for top-level felonies, a 270-day track for mid-level felonies and a 300-day track for lower-level felonies. He said he hoped that Chief Justice Donald Beatty would sign the order by May.
“One of the problems we had under the existing order is that it just kept pounding certain solicitors and public defenders” who were overloaded with trials, Dennis said. “If you spread it out by bracketing you get a better cross-section of cases.”
He added that a status conference will still be held 180-days into a case in which a defendant either accepts or rejects a plea. From that point forward, the case will be managed under his docket control order and be funneled into one of the three tracks.
Langford still lingering in background
Dennis’ order creating Charleston’s avant-garde case management system is based in part on a pilot system in Spartanburg County and followed the state Supreme Court’s controversial 2012 decision in State v. Langford. That decision 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.
The state 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 from prosecutors who didn’t want to lose control over the docket and judges who weren’t keen on taking on new responsibilities. But, so far, Langford hasn’t resulted in any sweeping changes.
Dennis’ administrative assistant initially said he was probably too busy for an interview “because he never stops … doesn’t even get lunch some days,” and she attributed his schedule to the new case management system. But Dennis shrugged off the suggestion that he was being overloaded.
“There’s some extra work,” he said, “but there was extra work when we moved to a centralized system for docketing cases.”
Beyond the docket: new tech and mediation
Dennis had “felt for years that there was no rhyme or reason why we couldn’t have a system that works for the criminal side as well as it does for the civil side.” But he said that it was Beatty who approached him and spurred him to build a new criminal procedure system for Charleston County.
As part of the effort, the county now has a website, courtplus.org, which allows attorneys to manage the calendaring of their criminal cases online.
“I understand that e-filing is great and all that,” Dennis said, “but this is 10-times better than e-filing.”
Dennis also has begun pushing for mediation in certain criminal cases — a move that’s impressed Charleston criminal defense attorney Andy Savage.
“There are a lot of us who think this is a really good idea as an alternative to all the emotional impact that affects victims going through a trial. It’s also good for defendants,” he said. He added that mediation isn’t right for every case and “there has to be a cooperative effort for mediation” to work.
“There are no rules so we rely a little bit on the process of the civil court,” Savage said.
After Dennis suggested mediation during a status conference in one of Savage’s cases, Savage said he and his client agreed to pay for the mediator, Jill HaLevi of Charleston. But he said the option should eventually be available for cash-strapped defendants and those who have public defenders.
“I’m impressed with it,” he said of his first criminal mediation experience. “I’m a convert. It’s quite the opposite of what we usually do. In this case, we’re working in a collaborative way from different perspectives but with the same goal.”
Follow Phillip Bantz on Twitter @SCLWBantz
