SC Lawyer, January 2010, #5. Criminal Dockets Administered by Prosecutors: Past, Present and Future.

• Author: By Trey Gowdy

South Carolina Lawyer

2010.

SC Lawyer, January 2010, #5.

Criminal Dockets Administered by Prosecutors: Past, Present and Future

South Carolina LawyerJanuary 2010Criminal Dockets Administered by Prosecutors: Past, Present and FutureBy Trey Gowdy Historically prosecutors have administered the criminal dockets in South Carolina, and attempts to divest them have been unsuccessful. See State v. Ridge, 269 S.C. 61, 236 S.E.2d 401 (1977) (reversing a trial judge who dismissed indictments over the objection of the solicitor for a failure to call the case in a timely fashion). The history of prosecutor-administered dockets, particularly in the South, has been well chronicled. Former University of South Carolina School of Law Professor Andrew M. Siegel argued prosecutor controlled dockets are an archaic relic fraught with prosecutorial abuse, calculated to deny fundamental rights to defendants and designed to deny equal access to justice. Andrew M. Siegel, When Prosecutors Control Criminal Dockets: Dispatches on History and Policy from a Land Time Forgot, 32 Am. J. Crim. L. 325 (2005). It is just as plausible to argue prosecutors are called upon to administer the criminal dockets in South Carolina so they can also be called upon to explain the current state of the system with its burgeoning caseloads and intrinsic inefficiencies. In reality, neither circuit court judges nor clerks of court have the personnel necessary to effectively administer and manage the dockets, and prosecutors are uniquely well suited to know the vagaries of the pending criminal cases. Moreover, prosecutors are charged by the electorate to reflect the appropriate balance of public safety and efficiency. Nevertheless, it is healthy to experiment, and the Seventh Judicial Circuit is currently experimenting with a judge-administered docket representing collaboration between the public defender's office, the private criminal defense bar, the clerk of court, law enforcement and the solicitor's office.

S.C. Code Ann. § 1-7-330 (1976) reads in pertinent part "[p]reparation of the dockets for general sessions courts shall be exclusively vested in the circuit court solicitor and the solicitor shall determine the order in which cases on the docket are called for trial." In State v. Flood, 257 S.C. 141, 145, 184 S.E.2d 549, 552 (1971), defense counsel argued it was error for the prosecutor "to bring the case to trial so soon after the offense is alleged to have taken place." The defendant was arrested on November 14, 1970, and brought to trial December 15, 1970, for possession and distribution of marijuana. Defense counsel sought a continuance. The trial court denied the motion for continuance and on appeal the Supreme Court wrote, "The contention that other cases on the docket were much older does not show legal prejudice. The solicitor has a broad discretion deciding the order in which cases are called; he clearly had the right to call this case for trial. There is no showing that defendant did not have adequate time to prepare to defend." Id. at 145-46, 184 S.E.2d at 552.

In State v. Mikell, 257 S.C. 315, 185 S.E.2d 814 (1971), the issue is similar but the analysis more complete. In Mikell, the defendants were arrested March 4, 1970, and called to trial June 5, 1970, on charges of conspiracy to obstruct justice and attempted bribery. Defense counsel sought a continuance, arguing that there were at least "70 cases which were older" on the solicitor's docket. In Mikell the court wrote:

We hold that the solicitor has authority to call cases in such order and in such manner as will facilitate the efficient administration of his official duties, subject to the overall broad supervision of the trial judge. If a defendant feels that his rights are prejudiced by reason of the calling of his case at any particular time, he may apply to the judge for a continuance beyond the term or for postponement to a later date within the term. In the calling of cases for trial the solicitor has a broad discretion in the first instance, and the trial judge has a broad discretion in the final analysis. A prosecuting attorney normally has many cases for disposition. He must plan ahead to expedite the work of the court, and should the day come when he is required to call cases in the order entered on the docket, the administration of justice will bog down. No legal cause has been shown for the granting of the motion, and certainly there is no abuse of discretion. There was no error.Id. at 322, 185 S.E.2d at 816-17.

Prosecutors in South Carolina traditionally set and administer the docket rather than "control" the docket. Whether by way of request for continuance, the fear of post conviction relief, an untimely request for a mental health evaluation, a newly discovered conflict of interest, or any other myriad of reasons, judges can and routinely do amend the dockets proposed by solicitors. As the court in Mikell opined, trial judges have the final discretion in whether a case on the trial docket is tried or not.

The principal reasons prosecutors have been called upon to administer the dockets are fourfold: (1) neither circuit court judges nor clerks of court have the personnel, time or infrastructure to organize, publish and administer a criminal docket; (2) solicitors are elected to represent a hybrid of public safety and justice balanced with efficiency within their circuits; (3) prosecutors are uniquely well suited to know the nuances of individual cases and the availability of lay witnesses, law enforcement witnesses, as well as expert witnesses they routinely share with other circuits; and (4) since prosecutors are the ones called upon to provide an explanation for the current state of the criminal justice system, the muses thought it only fair to provide them with a few tools to actually impact the administration of the justice.

Court Administration publishes a report showing how many circuits dispose of 80 percent of their warrants within 180 days. See S.C. Court Admin., CRM 75, Jan. 31, 2009, available at http://www.sccourts.org/monthlyReports/Jan2009/cr75_mon_graph.pdf. Aside from the fact that expediency is hardly a reliable indicator of effectiveness, none of the 16 circuits meets this arbitrary and unrealistic statistical barometer of "success." It is interesting that both of the cases cited above, State v. Flood and State v. Mikell, involve allegations that the state called the case for trial too soon. Rarely do you hear that complaint now. In Spartanburg County alone, 150 criminal warrants come into the solicitor's office each week. Combine this with the fact that general session court is held every second week for double terms of court, and it is clear there is little time within which to analyze cases, follow up with the arresting agency, prepare an indictment, provide discovery, satisfactorily analyze the relative strengths and weaknesses of a particular case, confer with the complaining witnesses and victims, make a meaningful offer to resolve, and prepare for trial within 180 days. And even if all of that were possible within 180 days, there are hundreds if not thousands of older cases waiting to be tried.

In addition, South Carolina's criminal justice system tracks warrants as opposed to indictments, and the statistical measures of success or failure that are published by court administration use warrants. South Carolina prosecutors are not involved in the warrant seeking process, the warrant approval process or the warrant signing process. Even trials are tracked by warrant in South Carolina, creating data that is impossible to reliably interpret or administer. A 20-count indictment for breaking into motor vehicles resolved in a one-day trial will show as 20 convictions or not guilty verdicts, whereas 15 separate murder cases each lasting a week will appear as merely 15 warrants.

The county grand jury, so powerful and effective on the statewide and federal levels, is powerless to effectively investigate crime in South Carolina. Prosecutors are discouraged from entering the grand jury room by law and cannot send grand jury subpoenas to gather evidence or compel testimony without the signature of the clerk of court. Having a real presence in the grand jury would enable prosecutors to build cases from probable cause to the stricter burdens necessary for effective trial presentation and also result in more no bills on cases that lack sufficient prosecutorial merit.

The best explanation for why prosecutors set and administer the docket is practicality. Recently in Spartanburg, a defendant was charged with murder in the beating death of a man with a hammer. After he administered a fatal beating to one man, he attacked another elderly man with a hammer and said "I just got through doing this to someone else." The latter man survived but was injured severely and had serious health issues unrelated to the attack. Fearful that the victim would not survive, and with no grand jury mechanism in South Carolina law to preserve his testimony prior to trial, the state petitioned the judge to videotape his testimony. Assume the judge ruled the state could not videotape the testimony. What recourse does the state have other than to set the matter for trial as quickly as possible? The state virtually always calls more witnesses than the defense does, and many of the state's expert witnesses are also witnesses in other circuits across the state. Is there any way a circuit judge, who travels about the state holding court in other counties, can reasonably be expected to keep up with witness schedules, drug chemist schedules, SLED experts' schedules, defense bar conflicts, or frankly the rulings of other circuit judges who recently have held court in his or her circuit?

It is not uncommon for circuit judges to issue orders granting or reducing bond if the solicitor has not called a case within a certain period of time. Since solicitors are popularly elected, they clearly do not want defendants released on bond due to their office's failure to call a case for trial. Prosecutors face similar pressures from statutes like the Interstate Detainer Act wherein solicitors are statutorily compelled to try cases within a specific time period or the matter will be dismissed with prejudice.

Furthermore, South Carolina judges already have higher caseloads than virtually all other state court judiciaries. And, their staff consists of only an administrative assistant and a law clerk who typically serves one year. Simply put, circuit court judges cannot reasonably be called upon to meet the responsibilities and duties of their offices as currently constituted and accept the additional responsibilities of managing, publishing, overseeing and scheduling criminal dockets without significant personnel expansion.

And, lest we forget or minimize the significance of this, solicitors are elected presumably to reflect the public safety and justice values of the community. Defense attorneys are neither elected nor necessarily responsible for balancing public safety with the fair administration of justice. Defense attorneys are charged with doing their best to represent the interests of their clients. Sometimes this means delaying a case as long as possible and sometimes it means requesting a case be set quickly. Their obligations are to their client. If a prosecutor wants to call a homicide case for trial before an older possession of a Schedule IV controlled substance, is anyone seriously arguing he or she should not be able to do so?

The practical reality acknowledged in Mikell is that judges ultimately do control the criminal dockets in South Carolina. Defense attorneys have in their arsenal motions for speedy trials, motions for continuance, motions for bond and motions to reconsider bonds. The largest arrow in their quiver, however, is the reality that well over 100,000 criminal warrants come into the state criminal justice system each year. And the system was not and is not equipped to handle that volume. Despite a statewide warrant dismissal rate in excess of 50 percent, there are still 33,000 warrants more than 541 days old. The issue raised in Flood and Mikell of solicitors calling cases too quickly has now been replaced with the burden of trying to reach cases before memories fade, witnesses move away or victims give up hope of having a day in court.

So, historically, solicitors have published and administered the criminal dockets in South Carolina, and in turn, solicitors have been called to explain burgeoning caseloads, decide whether to concentrate on jail cases in hopes of obviating the need for jail expansion construction, or call the cases of defendants out on bond before they re-offend. Solicitors are expected to schedule guilty pleas as well as explain to crime victims when their case will be reached and why it has taken so long.

It was against this backdrop that an agreement was reached for implementation of the case management system in the Seventh Circuit, Spartanburg County, that is essentially administered by the chief administrative judge with significant support from the clerk of court's office. The Seventh Circuit, like many of the other circuits across the state, has had a case management system since 2004. Within that system are first appearances wherein scheduling issues, conflict issues and mental health issues are addressed. A discovery process follows with specific court supervision governing the production of discovery from law enforcement to the solicitor's office and ultimately production of that discovery to the defense bar. Later, second appearances are scheduled wherein the defense bar and prosecutors are called upon to announce to the court whether a case is for trial or plea. There is no substitute for judicial supervision of both appearances since judges have a unique way of getting timely and accurate information from litigants.

Where the Seventh Circuit differs somewhat in terms of its case management approach is that the chief administrative judge schedules the pleas and determines which judge will hear pleas and which will preside over trials. The clerk of court issues a docket 28 days in advance and publishes the docket via the Internet. The docket consists of trials resulting from second appearances and jail cases, and both the solicitor's office and the defense bar are entitled to request a certain percentage of cases for each docket depending on specific case circumstances, witness availability and other factors requiring an expedited resolution.

On the Monday morning beginning a term of court, a judge or the clerk of court will call the docket and identify further which matters are for plea or trial. Depending on judicial resources and time constraints, the trial judge will either start the first trial or begin taking pleas from the trial docket while the judge assigned to hear pleas begins doing so. Typically in Spartanburg, there are double terms of court and one judge is designated to hear guilty pleas, while the other judge is designated to preside over trials. A special effort is made to follow the docket in descending chronological order, although admittedly this can be difficult. Solicitors and the defense bar have historically been so predisposed to "keep court going" that there is a temptation to jump about the docket in search of a trial for the trial judge. Ideally, the trial judge will be able to follow the docket from top to bottom, and some resolution will come to pass for every case on the docket by way of plea, trial, dismissal or bench warrant for absenteeism.

The system used in the Seventh Circuit is not perfect, and the component agencies meet with some regularity to suggest ways to improve consistency and efficiency. Most assuredly the system would not be the correct system for every other circuit. It works for the Seventh Circuit because there is good communication between the solicitor's office and defense bar and because our circuit judges have been willing to go above and beyond the traditional call of duty in terms of workload and responsibility. There is willingness by all the component agencies to change established practices to increase predictability and efficiency. And Spartanburg County Council and the clerk of court's office have been willing to assume duties not previously assigned to them. A judge run docket will not work unless the judiciary is willing to invest a significant amount of courtroom time to the project. Our current chief administrative judge presides over first and second appearances, sounds the docket when he is assigned to general sessions, is available for continuance requests, conducts status conferences on older cases and generally manages the day to day issues that are certain to arise in a county with 9,000 incoming warrants yearly.

The most efficient practice is to have a reliable list of pleas from second appearances and for the trial docket to actually be a trial docket. This remains a challenge, as does being prepared for multiple trials in a term of court for the assistant solicitors, assistant public defenders and defense bar.

While there are historical and practical justifications for prosecutor-administered criminal dockets, it is also healthy for South Carolina to experiment with other models in an effort to enhance the effectiveness and efficiency of and the shared responsibility to the criminal justice system. The experiment the Seventh Circuit is embarking on will not work for every circuit and perhaps would not work for any other circuit. It requires additional personnel for the clerk of court's office, which is a challenge in the current economic environment. It also requires a willingness for our office to relinquish certain controls and the judiciary and defense bar to assume certain responsibilities related to the administration of justice previously reserved for the solicitor.

Trey Gowdy is solicitor for the Seventh Judicial Circuit.