Ex-Lawmaker Justices Grill A.G.’s Side in Harrell Hearing

June 25, 2014

Investigative Reports

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SC Supreme CourtIt wasn’t an easy day Tuesday in the state’s top court for S.C. Attorney General Alan Wilson and one of his top prosecutors.

Creighton Waters, an assistant deputy attorney general, was grilled by the S.C. Supreme Court in the state grand jury case of House Speaker Bobby Harrell, who was among a crowd of at least 150 who packed the small courtroom and overflowed into the lobby of the courthouse, located across the street from the State House.

Most of the questioning of Waters during the hour-long hearing came from Chief Justice Jean Toal and Associate Justice Donald Beatty, both of whom are former House members. Their questioning centered on whether the judge overseeing the state grand jury in Harrell’s case had the authority to order that the investigation be stopped and was justified in doing so.

Wilson, who sat with Waters, did not speak during the hearing.

The Nerve in February reported that Harrell actively campaigned for Toal for her re-election then in the General Assembly to her chief justice seat. Toal declined several requests by The Nerve to say whether she would recuse herself from Harrell’s case.

South Carolina and Virginia are the only two states in which their legislatures play primary roles in electing judges.

On May 12, Richland County Circuit Judge Casey Manning, the administrative judge overseeing the grand jury investigation of Harrell, canceled the investigation – despite impaneling the jury, according to the Attorney General’s Office – ruling that Wilson “failed to offer or present to the Court any evidence or allegations which are criminal in nature.”

Manning ruled that because the allegations were civil, not criminal, the House Ethics Committee, which can’t investigate criminal allegations against House members, had jurisdiction in the case. Wilson appealed to the Supreme Court, which ruled that the grand jury investigation could continue pending a final ruling by the five-member court.

When the high court will rule is unknown, though longtime court observers say a decision likely will be issued within weeks.

In February 2013, the South Carolina Policy Council – The Nerve’s parent organization – filed a complaint against Harrell, asking Wilson’s office to investigate allegations that Ashley Landess, the Policy Council president, noted in a letter accompanying the complaint “could be plausibly seen as a pattern of public corruption that would be out of the jurisdiction of the House Ethics Committee to investigate.”

Landess has contended the House Ethics Committee shouldn’t handle Harrell’s case because of multiple inherent conflicts of interest. The state grand jury has the authority under state law to investigate public corruption.

The Policy Council’s allegations involve Harrell’s reimbursement of campaign funds for the use of his private plane, the use of his office in connection with a pharmaceutical repackaging company he once headed, and his appointment of his brother to the state Judicial Merit Selection Commission, which nominates judicial candidates to the General Assembly.

Wilson turned over the Policy Council’s complaint to the State Law Enforcement Division, which, after a 10-month investigation, presented its report to Wilson, who in January announced that it had been referred to the state grand jury for further investigation.

Harrell, who has been the House speaker since 2005 and was first elected in 1992, has denied doing anything wrong, and he has not been charged with any crimes.

Landess attended Tuesday’s hearing, sitting in the same row, but on the opposite end, as Harrell. More than 50 Policy Council supporters walked as a group from the Policy Council’s office several blocks away to the Supreme Court to attend the hearing.

‘Repeated Allegations of Criminality’

During the hearing, Beatty, who served five years as a House member before moving to the circuit court, Court of Appeals and the Supreme Court in 2007, questioned Waters whether there is criminal evidence in the Harrell case to warrant a state grand jury investigation.

“I’m at that point where Judge Manning says … ‘You have not presented any evidence of a crime; therefore, you are not pursuing the purpose of the impanelment of this grand jury.’ Now that’s what I want to see.”

“This investigation has gone on for quite awhile,” Beatty continued. “You had more than allegations by Miss Landess. You had a SLED investigation. You had turned it over then. Didn’t you have something that you could have given the impaneling judge to keep your investigation before this grand jury going?”

“If you look at the Landess complaint – and we’ve detailed through there the repeated allegations of criminality,” Waters responded. “We established that Ethics Act violations can be criminal, and it is necessary for the grand jury to look at that information to determine whether or not it rises to a level of criminality.”

Bobby Stepp, one of Harrell’s lawyers, said during the hearing that no record of the SLED investigation was presented to Manning, who held public hearings on the Harrell case on March 21 and May 2, though Waters pointed out that Manning had signed the order impaneling the state grand jury.

At that start of the hearing, Waters said the issue in the case is whether the attorney general and state grand jury “need permission from the House Ethics Committee before they have jurisdiction to do their job.”

“We think that the (S.C.) Constitution, the case law and the statutes make it very clear that they do not need that permission,” he said.

Toal cited a 1994 state Supreme Court ruling, known as the Thrift case, that said the “absence of a complaint to the Ethics Commission will never operate as a limitation upon the state’s independent right to initiate a criminal prosecution.”

Waters said to his knowledge, there is no pending House Ethics Committee complaint against Harrell connected with his state grand jury case.

He also said there are misconceptions about the role of the state grand jury.

“I think everyone been treating the impanelment of a grand jury as if it were like an indictment or even a warrant,” Waters said. “But a grand jury is not that. A grand jury is there to determine whether or not there is probable cause in the first place.”

Toal, the court’s senior justice who served 13 years as a House member before going straight to the high court in 1988, asked Waters whether a judge who impanels a state grand jury has the authority to question whether the jurors are complying with the grand jury law after they are impaneled.

“I take it you would agree … that the impaneling judge has some responsibility for ensuring that the statewide grand jury is not pursuing something that it is not empowered to pursue” Toal said.

Waters said there would have to be “extraordinary circumstances where serious abuses are being shown” to justify a “pre-indictment” review of a state grand jury investigation by the judge who impaneled the jury. Otherwise, he contended, the grand jury would be “unduly burdened and the search for truth would be thwarted with the delay of motions after motions after motions and mini-trial after mini-trial before the grand jury could get to its work.”

Toal also questioned whether the judge overseeing the state grand jury could determine whether prosecutors assigned to grand jury cases had conflicts of interest or other issues under the “normal rules of the road.”

“That hadn’t been decided yet,” Toal noted about an alleged conflict-of-interest issue in the Harrell case. “We still haven’t had a hearing on that matter.”

At the March 21 hearing – before Manning on his own brought up the issue of whether Wilson’s office should have jurisdiction over the Harrell case – Brad Wright, Harrell’s chief of staff, alleged that Wilson had threatened him in a closed-door meeting last year at the Attorney General’s Office over pending ethics legislation. Wilson denied the accusation, while Harrell’s attorneys argued that he should be removed from the case.

Manning didn’t rule on that matter, though he conceivably could do so in the future, depending on what the Supreme Court decides.

During Stepp’s presentation, Toal took a dig at Wilson’s public statements that the SLED report had been referred to the state grand jury, noting, “I find it curious that we know all that because frankly, I never heard of having press conferences to announce that you’re going to submit something to a grand jury – ever.” Stepp claimed Harrell has been “severely prejudiced” by Wilson’s public statements on the case.

Rainey Ruling

In his opening statement, Stepp said the main issue in the case is “whether the attorney general, under the guise of a criminal investigation, can usurp the exclusive statutory jurisdiction of the House Ethics Committee over an ethics complaint made by a private citizen,” contending that the complaint filed by Landess alleged “what I considered to be civil violations of the Ethics Act.”

Stepp said a ruling by the Supreme Court in favor of Wilson would violate the court’s ruling last year that “investigations of violations of the Ethics Act are within the exclusive purview of the legislative branch to the exclusion of the courts.”  The Supreme Court in that case upheld an earlier ruling by Manning.

In that case, John Rainey unsuccessfully sought, through a lawsuit, a court declaration that Gov. Nikki Haley had violated the Ethics Act while she was a House member, though the House Ethics Committee in 2012 twice had cleared her of all charges.

Under questioning by Associate Justice Costa Pleicones, Stepp said he didn’t “see any difference” between the Rainey and Harrell cases, though Pleicones pointed out that the Rainey case was brought initially in the Court of Common Pleas, which handles only civil cases at the circuit level.

In the Rainey ruling, Beatty wrote that the Attorney General’s Office on its own could have investigated any allegations of criminal ethics violations against Haley. Waters said the Ethics Act has both civil and criminal provisions, adding, “I think that’s what the trial judge failed to perceive” in Harrell’s case.

The Nerve in April reported that under a loophole in state law, the House Ethics Committee can’t consider allegations older than four years, which would bar it from considering many of the allegations in the Policy Council’s complaint if the matter were referred to the panel.

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