Of Course It’s Ineffective Not to Call Alibi Witnesses at Trial—South Carolina Attorney General’s Office Attempts to Pull a Fast One to Uphold Conviction. Weldon v. South Carolina, Op. No. 5867 (filed October 6, 2021).
South Carolina’s post-conviction relief system is in serious disrepair. I would argue it’s broken, but frankly the infrastructure is there to make it a highly functioning remedy for catching malfunctions at the trial level. If only everyone acted in good faith. And here, the Attorney General’s Office did not. To preface—I personally like a number of lawyers at that office, but I have serious issues with how the office is run.
Here’s a little secret that not everyone knows (but everyone should). In South Carolina, the Attorney General’s Office almost always drafts final orders in PCR cases and in capital cases. They probably draft them in other contexts as well, but I’m intimately familiar with their orders in these specific cases. And you would imagine that drafting these orders would carry with it a recognition of the importance of accuracy and candor. After all, if you’re asking a judge to sign your proposed order, you should be very conscientious about making sure it’s an honest document.
So when you see a case like this—where the AG clearly misrepresented the record in a proposed order which was then signed by the presiding judge—I just can’t understand why this is allowed to continue. I don’t understand why our appellate courts fail to take the Attorney General’s office to task when this level of disingenuity is so blatant, and the consequences of it, so significant. We are, after all, talking about the Constitutional rights of South Carolina citizens.
The facts of the case are pretty simple—a victim is robbed and there is very little physical evidence connecting either Petitioner or his co-defendant to the crime. There are no witnesses. Petitioner goes to trial. He does not testify. He is convicted and sentenced to 60 + years (which frankly is an extraordinary sentence under the facts of this case, but that’s another story). At PCR, it is revealed that Petitioner told his lawyer he was home that night with his mother, sister, and girlfriend. Mom and sister were present at Petitioner’s trial but were not called by trial counsel to testify. At the PCR hearing, they testified they were with Petitioner on the night this happened. Trial counsel testifies at the PCR hearing that he is a real estate lawyer who doesn’t handle criminal trials. He couldn’t say why he failed to call Petitioner’s alibi witnesses. He indicated his notes show that he prepared at least the mother to testify as to the alibi. He conceded that he should have called the alibi witnesses and, had he done so, it probably would have changed the outcome of the trial.
So, here’s what the order of dismissal stated (which, remember, was drafted by the AG’s office):
“Trial counsel testified that having conflicting alibi witnesses would have hurt his case rather than help, and it is reasonable to think that he considered this as part of his strategy in not calling these witnesses.
The decision not to use contradictory alibi witnesses at trial was very likely a part of Trial Counsel’s strategy…
…Even though Trial Counsel did not recall his specific reasoning for choosing not to call alibi witnesses, his overall strategy can be inferred from the basis of his overall strategy, which he testified was to attack the State’s DNA evidence against [Petitioner].
And it continues:
“Trial counsel’s decisions at the trial were clearly made with a tactical strategy in mind and his actions were carefully chosen, even if he disagreed with them looking back in hindsight. Trial Counsel was at least reasonably competent in his decisions at the time of trial, and thus his representation was not ineffective.
Because Trial Counsel articulated, both at the PCR hearing and at the time of trial, a strategic reasoning for choosing not to call alibi witnesses, his performance cannot be found ineffective, and this allegation is denied and dismissed with prejudice.”
You don’t have to be a constitutional law scholar to realize that trial counsel’s testimony at the PCR hearing is not accurately reflected in the order of dismissal. But also, this is clearly a case where the Attorney General’s Office should have recognized the merit of the PCR case and consented to relief for the Petitioner. Instead, it appears to be the policy of that office to make very young and inexperienced lawyers (because most PCR lawyers on the AG’s side are fresh out of law school) draft inaccurate proposed orders and present them to judges to sign. Frankly, I think it’s because the lawyers responsible for these orders are so new, and because they are without any discretion to handle these cases otherwise, that our courts have largely left them alone. It doesn’t seem fair to chastise young lawyers for merely following their bosses’ orders. I also think it’s probably why most young lawyers leave that office after a year or two. The courts really should take the Attorney General’s Office’s leadership to task for these issues. Facts matter. Being honest matters. But instead of acknowledging that the Petitioner here was entitled to relief, the AG’s office chose to misrepresent the lower court record to a sitting judge (who then signed it, which of course is also another issue to discuss on another day). It undermines the integrity of our system and its perception of being fair and equitable when the top prosecutor of the state of South Carolina acts in this manner. I’m very happy for Mr. Weldon, but he was entitled to this relief at a much earlier point in this litigation. Our courts must demand exacting accuracy in proposed orders drafted by the Attorney General’s Office to preserve the integrity of our criminal justice system.