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

AuthorBy Trey Gowdy

South Carolina Lawyer


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...

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