South Carolina Criminal Defense Blog

Our Supreme Court, by administrative order, has given to the Attorney General's office the authority to decide when counsel is or is not appointed in post conviction relief petitions:

Consistent with Rule 71.1, SCRCP, counsel will not be appointed until the Post-Conviction Relief Section of the Attorney General’s Office files its return to the application. In its return, the Attorney General’s Office shall clearly state in the caption heading whether it requests that counsel be appointed for the applicant.

If the Attorney General requests the appointment of counsel, counsel shall be appointed for the applicant unless a circuit court judge determines that it is inappropriate to do so. The authority to make the appointments in these cases may be delegated to the Clerk of Court or some other official.

If the Attorney General opposes the appointment of counsel for an indigent applicant, counsel will only be appointed as follows:

(1) If the Attorney General asserts that the application is barred as being successive or as being untimely under the statute of limitations,[1] counsel will not be appointed except upon written order of the Chief Judge for Administrative Purposes for the Court of Common Pleas in the circuit. In these cases, the Chief Judge will insure that counsel is only appointed for an indigent applicant when the facts raise a material issue regarding the applicability of the rule forbidding successive applications or the statute of limitations. Cf. Gary v. State, 347 S.C. 627, 557 S.E.2d 662 (2001) (statute of limitations).

(2) In all other cases in which the State opposes the appointment of counsel, counsel will only be appointed upon written order of a circuit court judge under the standard contained in Rule 71.1, SCRCP.

Until now what has happened is, in cases where the petitioner cannot afford to retain private counsel, the petitioner will file his or her own PCR application and then the clerk of court would appoint an attorney from the civil appointment list to represent the petitioner. Because a great number of these petitions are successive, time-barred, or otherwise without merit, it uses a great deal of Office of Indigent Defense's resources appointing attorneys to handle these petitions, and many of the attorneys do not want the appointments in the first place.

I'm not sure that giving the Attorney General the power to decide which petition has merit and which does not is the way to go, however. This is like telling the prosecutor to decide which defendant's cases should be worthy of going to trial and which should not. I think that the Supreme Court's reasoning must be that inmates are not guaranteed the right to counsel on successive or time-barred PCR petitions, but still, delegating the decision to the State in the PCR does not make sense. It is, after all, supposed to be an adversarial process isn't it?

If the idea is to conserve resources and to more efficiently deal with frivolous petitions, why not create a PCR division of Office of Indigent Defense, in the same way that the Attorney General has created a PCR division that handles only PCR's, at the trial court and on appeal? The PCR division would need to be insulated somehow from the public defender's offices and the office of appellate defense, to avoid conflicts. If this office handles the appeals as well as the PCR hearings, it will shift some of the workload from appellate defense, who do a stellar job but are without a doubt overworked. (this was not my idea - it has been suggested by other far more knowledgeable persons than I, but I agree with it)

Surely a PCR division that makes the decisions as to which petitions have merit and which handles the PCR petitions and appeals will be significantly less costly than the current system of appointing PCR's to private attorneys (not saying that private attorneys are rewarded handsomely, the current limits are 40/60 and a cap of $1000).

When I take on a PCR that has been filed by a pro-se inmate, the first thing that I do is review the transcript to see what he or she missed. The issues that the pro-se inmate raises may or may not have merit, and there may be issues that do have merit that were not included in the original petition. The other issues can then be raised in an amended or supplemental petition. Is the Attorney General going to review the transcripts and decide if an amended petition with other valid grounds for PCR should be filed?

Is anyone else bothered by the idea of placing this kind of power in the hands of the Attorney General, whose job is to defend against PCR petitions?