Court Records in Harrell Ethics Case Still Secret

March 24, 2014

Investigative Reports

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Bobby Harrell Ethics Case

Despite explosive testimony in Friday’s unprecedented court hearing pitting South Carolina’s top prosecutor against arguably the state’s most powerful lawmaker, questions remain about what happened in a private meeting last year in the Attorney General’s Office.

Although Circuit Court Judge Casey Manning quickly ruled that the hearing in the Richland County Courthouse would be open – thwarting efforts by House Speaker Bobby Harrell’s lawyers to keep it secret – both sides afterward declined The Nerve’s request to release normally public court documents that were cited during the hearing.

The Nerve learned after the hearing that Harrell’s written request to remove Republican Attorney General Alan Wilson from the case has been kept under lock and key for about a month.

Allen Myrick, a senior assistant deputy attorney general who cross-examined Harrell’s lone witness on Friday, said after the hearing it was his understanding that Manning would allow the release of Harrell’s motion and other related court records after he rules on whether Wilson should be removed from the case, though no specific release date was provided.

Bart Daniel of Charleston, one of Harrell’s attorneys, gave a similar answer when contacted afterward byThe Nerve.

James Parks, the clerk of the state grand jury, which maintains all official records of state grand jury proceedings, did not respond Friday to a written request from The Nerve seeking an immediate release of the court records.

Those records include:

  • Harrell’s motion to remove Wilson from his ethics case, which currently is before the state grand jury, a division of the Attorney General’s Office. Daniel after Friday’s hearing couldn’t immediately provide The Nerve with an exact filing day but estimated it was filed about 10 days before Wilson’s formal response on March 7, which put the filing date around Feb. 25.
  • Wilson’s response on March 7 to Harrell’s motion.
  • Harrell’s follow-up reply to Wilson’s response, which Daniel estimated was around March 17.
  • Affidavits from the only two witnesses who testified Friday – Wilson and Brad Wright, a House attorney who is Harrell’s chief of staff and legal counsel.

“I’m glad we’re having this public hearing,” Wilson testified. “I want the public to know what’s in that affidavit. I want the public to know what’s in his (Wright’s) affidavit.”

But although cited during testimony, those affidavits and other related records were not released publicly Friday, despite the fact that Manning announced at the start of the proceeding that “nothing said in this public hearing should be anything that may go before the statewide grand jury.”

“This is an ancillary hearing,” Manning said.

Typically, motions and other related documents in a criminal case in which charges are issued are part of a court file that is available for public review. Incident reports generated by police agencies also generally are considered public records, whether or not charges are filed.

The state grand jury has the authority under state law to investigate certain crimes, including multiple-county drug offenses and public corruption cases. Unlike county grand juries, the state grand jury has the power to subpoena witnesses and documents, and witnesses can be charged with perjury if they lie, which makes it a powerful investigative tool of the state attorney general. A state grand jury investigation can’t proceed unless both the attorney general and the State Law Enforcement Division chief agree to it, and convince the administrative judge assigned to those cases to impanel the jury.

Under state law (Section 14-7-1770 of the S.C. Code of Laws), records, orders and subpoenas “relating to state grand jury proceedings must be kept under seal to the extent and for that time as is necessary to prevent disclosure of matters occurring before a state grand jury.”

But The Nerve reported last week that there is nothing in the state grand jury law or a 2000 administrative order by the S.C. Supreme Court dealing with the state grand jury that specifically allows a person under investigation by the grand jury to request a closed hearing on purely procedural matters, such as Harrell’s motion to remove Wilson from his case.

That request was made to Circuit Court Judge Robert Hood of Columbia, who is the administrative judge of the state grand jury. In the first surprise of Friday’s hearing, courtroom observers and the parties in the case were greeted by Manning, not Hood; Manning said Hood was “unavailable” but gave no reason for his absence.

Under a 2011 order by state Supreme Court Chief Justice Jean Toal, the chief administrative judge of the 5th Circuit Court of General Sessions, which handles criminal cases, serves as the state grand jury administrative judge. Hood, who has been on the bench for two years, is the 5th Circuit General Sessions chief administrative judge, while Manning, a 20-year judge, holds the chief administrative title for the 5thCircuit Court of Common Pleas, which handles civil cases.

Under Toal’s 2011 order, when the General Sessions chief judge is absent, the Common Pleas chief judge fills in as the state grand jury administrative judge.

The Nerve reported in February that Toal would have the authority to appoint the trial judge in Harrell’s case if he is indicted by the state grand jury. Harrell openly campaigned for Toal in last month’s election in the General Assembly for her chief justice seat, though Toal, through her court clerk, declined to tellThe Nerve whether she would recuse herself if Harrell is indicted.

Threat by Wilson?

Harrell, a Charleston Republican who has been the House speaker since 2005 and who was elected to the House in 1992, was present at Friday’s hearing but did not testify. Wilson’s office in January announced that an ethics investigation of Harrell had been referred to the state grand jury after a 10-month investigation by the SLED.

The South Carolina Policy Council – the parent organization of The Nerve – in February 2013 filed an ethics complaint against Harrell with Wilson, who turned it over to SLED. Harrell has maintained he broke no laws.

Wright, who has been Harrell’s chief of staff since 2011, dropped a bombshell Friday when he testified that he felt threatened by Wilson during a closed-door meeting last April with the attorney general, who is the son of U.S. Rep. Joe Wilson, R-S.C.

Wright said he was summoned to Wilson’s office following a House Judiciary subcommittee meeting on an ethics bill (H. 3945) that didn’t at the time include a proposal by Wilson to create a multi-agency “Public Integrity Unit” within the Attorney General’s Office. He said Wilson was angry that the legislation didn’t include the proposal, and noted that Wilson also had talked about the referral of the complaint against Harrell to SLED.

“At one point in the meeting, he (Wilson) told me that he had friends with deep pockets who can make this an issue if he asked them to,” Wright testified under questioning by Daniel. “I thought that was a threat.”

But when Manning asked if there were a “quid pro quo as a result of this meeting you had with the attorney general,” Wright replied, “No sir, absolutely not.” Wright also acknowledged under cross-examination by Myrick that he didn’t include the “deep pockets” allegation in his written affidavit.

The Nerve reported in August 2012 that Wright was among 32 House staffers earning at least $50,000 annually who received pay raises the previous fiscal year ranging from 5 percent to 55 percent. At that time, Wright’s annual salary jumped by 24 percent to $114,000, The Nerve’s review found. His salary as of last August was $117,420, records show.

Under questioning by Assistant Deputy Attorney General Creighton Waters, Wilson testified he didn’t threaten Wright but instead arranged a meeting with him to help “lessen the tensions” that Harrell had over the referral of the ethics complaint to SLED, and to push for the proposed Public Integrity Unit.  He said while he believed it wasn’t illegal at the time to meet directly with Harrell, he didn’t do so to avoid any “appearance of impropriety” with the public.

Recalling his conversation with Wright, Wilson testified: “I just want you all to know I’m not after you. I don’t have an agenda to take down the speaker or anyone else like that. I just have a job to do in the ordinary course of business.”

He said he had “absolutely no recollection” of the “deep pockets” accusation by Wright, adding, “I don’t even know what that means.”

‘Only God Knows’

Manning made no immediately ruling on Harrell’s motion to remove Wilson from the case and instead asked the attorneys on both sides to submit proposed orders to him by Wednesday.

“At this point in time, only God knows what the decision will be because I don’t,” Manning said.

Given that Wilson and Wright were the only witnesses who testified Friday, Manning will have to decide between  “he said-he said” versions of what happened at the April 2013 meeting. If he sides with Wright and orders that Wilson be removed from the case, an outside solicitor likely would be appointed to handle it going forward.

Although Wright testified that he filed no ethics complaint against Wilson over the alleged threat, Wilson might not be off the hook, particularly if Manning orders him removed from the case.

Wilson accused Harrell’s lawyers during the hearing of “trying to prosecute the prosecutors.”

When asked by The Nerve after the hearing if any state attorney general or elected solicitor has been the subject of a State Ethics Commission investigation into allegations that the prosecutor improperly used his authority under ethics laws to obtain some desired result, Cathy Hazelwood, the commission’s chief lawyer, replied in writing, “I can recall no cases involving such an allegation.”

Under questioning by Gedney Howe of Charleston, one of Harrell’s lawyers, Wilson denied he violated an ethical rule for lawyers (Rule 8.4 (f) of the Rules of Professional Conduct) that bans attorneys to “state or imply an ability to influence improperly a government agency or official.”

The Nerve on Friday asked Lee Coggiola, who heads the state Office of Disciplinary Counsel, a Supreme Court branch that investigates ethical complaints against lawyers and judges, about the number of complaints that her office has received in recent years under the ethics rule cited by Howe.

“I wouldn’t say we get an abundance of them,” Coggiola replied.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.