The Fiscal Irresponsibility of the SC Attorney General’s Office—How Its Casual Obstructionism in PCR cases Wastes Taxpayer Money and Clogs Up the Criminal Justice System.

There’s much to be said about how the current PCR system—which is run by the SC Attorney General’s Office (it is responsible for all scheduling, for example)– is not properly functioning. But sometimes the best arguments can be better made by illustration. Here’s one.

In the near future, I will be at a hearing in a Court of Common Pleas roughly 2.5 hours from my home in Columbia. I represent an inmate who is, as is his right under our South Carolina statutes, challenging his conviction. I requested the local Solicitor’s Office produce, if it even has in its possession, three items of evidence that were disclosed to trial counsel but through the passage of several years appears to be missing. The Solicitor refused to provide the items directly to me, and the AG insisted I file a motion for discovery with the chief administrative judge. I did! The AG’s office then argued in response to my motion that I was not entitled to those three items of discovery because I had not shown “good cause” for them. Under our statute, S.C. Code §17-27-150, discovery may be granted in non-capital cases by the PCR court upon a showing of “good cause,” a phrase that has not been defined in our case law. But here’s what the AG’s office doesn’t believe is good cause (which I argued, and a judge agreed, met the standard)– (1) that use of discovery procedures will expedite my preparation for the evidentiary hearing, saving time and state resources, (2) that information obtained through discovery will likely eliminate the need for a number of witnesses to be called to testify at a court hearing, (3) that permitting discovery will substantially reduce the likelihood that counsel may need a last- minute continuance, and (4) that discovery will permit applicant to obtain information through means other than in-court proceedings, and valuable court time can be used to present only relevant material obtained through these sources. In response to my motion, the AG’s position was simply, “that’s not good cause.” They won’t tell me what they think good cause is. It appears the AG’s understanding of “good cause” is much like Justice Potter Stewart’s view of pornography; they know it when they see it. Promoting judicial efficiency in PCR proceedings, however, apparently isn’t it. So, all of this is standard obstruction. I’m used to it.

Now we get to the waste. I’m scheduled for a hearing on this issue. The AG will also be asking to dismiss claims in my client’s application (that he filed himself before I was retained) that perhaps I would dismiss myself once I’ve conducted the investigation they’re obstructing. It also appears they will arguing a different judge overrule the first judge who granted me discovery (I guess—all I know is I have an order granting discovery but I’m still on the docket for the AG to argue against it). But additionally, my client is going to be physically transported roughly 250 miles, round trip, for this hearing.

So, the AG’s office, through its wasteful and obstructionist actions, is forcing a judge to use valuable court time to keep me from obtaining 3 pieces of evidence which may or may not even exist, and to dismiss claims in my client’s application that have not been updated due to the AG’s unwillingness to allow me access to this evidence. But additionally, this “partial motion to dismiss” is legally improper—there’s no claim I haven’t met any pleading standard, for instance. Instead it reads as a motion for summary judgment only . . . there are still outstanding genuine issues of material fact! No judge with any knowledge of civil procedure is going to grant this motion. And bonus, the AG’s office is requiring SCDC staff transport an inmate 250 miles for this (*gestures wildly around the courtroom*).

And for what? Honestly, what is the purpose of all this? I’m not asking for anything the State has argued is privileged. The office has not offered any affirmative argument why I should not be able to see this evidence. It seems it is only taking this position because it does not want me to be able to adequately prepare my client’s case. It is hard to conclude that this is anything other than the State’s attempting to impede a criminal defendant’s right to access the legal remedies our state legislature has provided. And the AG’s office is abusing the rest of the South Carolina judicial system in doing so—by requiring judges use valuable court time in service to their desire to uphold convictions at any cost. The PCR judge who is scheduled to hear these motions has had no say in the matter. In SC, the AG’s office creates the PCR docket; it calls the cases. It runs the show. No judge has been asked to pass on the appropriateness of the AG’s actions in these cases.

Once again, this is a problem in the leadership of the Attorney General’s Office. The young lawyer who has argued I’m not entitled to discovery is only doing what her bosses are making her do. By all accounts, she seems like a very nice young lawyer. But her bosses are not going to be in Charleston County when we’re arguing these issues. They’ll be far away, back in Columbia, where they will not face any consequences for this complete waste of time and money. The AG’s office does not have any legitimate interest in keeping attorneys from investigating their clients’ cases and otherwise impeding their clients’ access to the PCR system. And the AG office’s pursuit of its illegitimate goals wastes valuable judicial resources and taxpayer money.

Normally I would complain about my wasted time and money, too. I will, after all, need to travel to this far away locale the night before, and stay at a hotel, so I’m not late to the morning hearing I have been scheduled for (and most people know how awful morning traffic can be in this area of the state so driving down that morning isn’t an option). Given the location, though, I will be turning this little wasteful junket into a mini-vacation, complete with nice hotel and dinner reservations, and time with an old friend. But if this were say, someplace less desirable, I’d most likely be raising hell about my own inconvenience too.

The point is, there needs to be accountability in the AG office’s running of the court docket in PCR cases. To be clear—because I apparently I ruffled some feathers with my last blog about the AG’s office—I’m not faulting any of the young lawyers working for the AG’s office who are acting as they are. They’re working for others, and they have no discretion in how to handle these cases. But, by pursuing policies that impede criminal defendants’ access to the court system, the leadership at the Attorney General’s Office is wasting scarce judicial resources and taxpayer money for no legitimate purpose.