Post-Conviction Relief Hearings, How to Raise and Preserve Your Winning Issues Under the Current System

December 4th, 2016
Elizabeth Franklin-Best

In my opinion, the post-conviction relief (PCR) system in South Carolina is completely and utterly broken for the vast majority of inmates. Under the Commission of Indigent Defense’s relatively new system, attorneys contract with that agency to take these cases. For their efforts, they receive a flat sum of $800. That’s it. And they’re not allowed to bill for mileage or other ordinary expenses. They can request funding for an investigator, and other experts, but few do. This flat fee system has been roundly criticized by the American Bar Association (ABA), but that fact has been ignored. Many of the lawyers who sign up for this contract system are young and inexperienced. That, unfortunately, is simply a fact as there are no “qualifications” for inclusion on the list.

In one case that I handled in PCR, I secured a copy of the voucher submitted by my client’s PCR counsel. Even though my client is serving a 25-year sentence for drug distribution, imposed after a three-day trial, his PCR counsel did not even read his transcript! PCR counsel failed to raise patently obvious claims of ineffective assistance of counsel, including claims for which there is clear, well-established case law that would compel a new trial for my client. So, what to do about that? Well, unfortunately, almost nothing. South Carolina does not recognize a claim for ineffective assistance of PCR counsel. Short of committing legal malpractice, there is really nothing that can be done if you receive ineffective assistance of PCR counsel. In some cases, you may be able to raise claims by way of a federal habeas petition, but having any claims heard in federal court that have not previously been raised in state court is a daunting task.

So, what do you do if you’re an inmate, with limited resources, and you’ve been appointed a lawyer who has not even read your case? In my opinion, inmates need to do more to self-advocate. If you know the issues in your case, write your own brief and insist that your lawyer make it a part of the record at your evidentiary hearing. Doing so will at least preserve those issues for appellate review (or at least show the court that you tried to raise these issues but were unable to do so because your lawyer was ineffective). Also, it is absolutely necessary that if you claim your trial counsel was ineffective for failing to call witnesses at your trial, you must have those witnesses present at your PCR hearing to testify. If your lawyer has not subpoenaed those witnesses, write a letter to the judge, and send a copy to the Clerk of Court to keep in your file so your appellate lawyer can raise the issue (anything contained in a Clerk of Court’s file can be made a part of the appellate record). Ask the judge to help you subpoena witnesses. Make sure there is a record of your attempting to have the court help you secure these witnesses.

This, of course, is not to claim that all contract PCR attorneys are incompetent. I’m sure there are some very conscientious ones out there. But my experience has led me to believe that there is a serious problem with the quality of PCR representation in our state court system, and that it is not likely to improve in the near future. Inmates who are going to pursue their PCR remedies need to take affirmative steps to raise and preserve their winning issues.

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