South Carolina Criminal Defense Blog

This morning at 9:40 am I received an email from a prosecutor stating that one of my client's case was to be tried this morning and to get up to the courthouse. At 9:45, as I was meeting with a different client at my office, the prosecutor called to make sure I knew that my case was going to trial today and that the judge wanted me at the courthouse. At 9:50, as I was still trying to explain to the client in my office that these things happen and when the judge calls I must go, another prosecutor called from the judge's chambers to tell me that the judge wanted me at the courthouse.

There is a trial roster that is put out by the solicitor's office for each term of court. This client's name was not on that trial roster, which was sent to me by email on March 30th, and so I should be able to safely assume that this client's case was not going to trial. In addition, this client has not one, but six separate cases pending, and the prosecutor has yet to identify which case he intends to call to trial and to provide complete discovery in some of the cases.

So, my staff calls my client and tells him to get to the courthouse while I grab the file and some books and jump in the car. At the courthouse, I tell the judge that my client is not on the trial roster and he informs me that I am wrong, my client is on the trial roster that he has. We compare notes and discover that the judge has been given a completely different trial roster. The prosecutor then assures the judge that I was provided both trial rosters, the one that I have produced for the judge (without my client's name) and the one that the judge holds in his hands (with my client's name), and that perhaps I do not check my email. I assure the judge that I check my email religiously (I do) and that I have not received a copy of the trial roster that the judge is holding in his hand. Fortunately, the judge accepts that I would not lie to the court and agrees that the case will not be called for trial this week.

But, this does not solve the problem. Why is the judge holding a trial roster in his hand that is different from the trial roster that was provided to me by the solicitor's office? As I spoke with other attorneys at the courthouse I did not find a single one that had received this super secret trial roster that my client's case was on. A different prosecutor called the assistant who had emailed the trial rosters and had her come up to the courtroom, to assure the judge that I was either wrong or lying to the judge, and when the assistant got there she freely admitted that she had emailed the roster that I held in my hand, that she had not emailed the super secret trial roster to anyone, and that she had been instructed that the super secret trial roster was not for distribution.

So our solicitor's office did not provide this trial roster to any defense attorneys, but told a judge that it had been provided to attorneys (me), and then called me the morning of trial to tell me to get to the courthouse and try a case that they knew I had not prepared for trial today. If I did not religiously check my email, or bring the paperwork with me this morning, or have some measure of credibility with our judges as an attorney that will not lie to the court, I could easily have been painted as incompetent or unethical myself.

What this screams to me is the problem with the prosecutor's offices having control of the docket in our criminal courts in South Carolina. The prosecutor can call a case for trial whenever they are ready, which means they pick the judge, they take as much time as they need to prepare for trial, they are able to play games and try to blindside defense attorneys when they are not prepared for trial, and they can leave defendants sitting in our hellhole of a county jail for years at a time in an attempt to force guilty pleas out of them. If a defense attorney wants a motion heard, they must file the motion with the clerk, and then call the prosecutor and ask them to schedule a hearing. On more than one occasion, I have had a prosecutor refuse to schedule a hearing (at which point we must go to a judge and request that they do it for the prosecutor). When the prosecutor does schedule the hearing, by virtue of the fact that they are the one scheduling it, they get to choose what judge will hear the motion.

Imagine, if you will, a system of common pleas court where the plaintiff's attorneys have exclusive control of the docket. They set the day, time, and courtroom where pre-trial motions will be heard; and they determine when a case will be tried and what judge it will be tried in front of. Do you think that such a system would be rife with abuses by the plaintiff's attorneys in how the docket is controlled?

The clerk of court should set the docket in criminal courts just as it is done in civil courts - an interested party such as the plaintiff's attorneys (prosecutors) should not have this power. The system as it is is a violation of due process, it is inherently unfair and gives an undue advantage to one side, and it leads to other abuses such as manipulation of the docket and deprivation of defendants' right to a speedy trial.

I would like to hear more discussion about this issue from attorneys in our state - it is time for a change. Any suggestions or comments are welcome.