Lawmakers to Push for New Tool to Fight Public Corruption, Other Crimes

October 15, 2012

Investigative Reports

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Grand JuryTwo state lawmakers say they plan to re-introduce bills next year that would create regional citizen grand juries in South Carolina with the power to investigate public-corruption cases and other crimes.

Amid the backdrop of the criminal campaign-finance case earlier this year involving former Lt. Gov Ken Ard and the more recent controversy surrounding House Speaker Bobby Harrell’s use of his campaign funds, there might be more interest in the General Assembly to pass such legislation in 2013.

In interviews last week with The Nerve, Beaufort County Republican Reps. Andy Patrick and Bill Herbkersman said neither the Ard nor Harrell case was a factor in their decision to resubmit their respective bills for the legislative session that begins in January. Both said they likely would prefile their new legislation in December.

“I would think they (prosecutors) should have as many tools in their tool box as possible,” said Patrick, a former U.S. Secret Service agent who introduced his initial bill (H. 4972) in March, which dealt primarily with regulating money-service businesses.

Herbkersman said he introduced his initial bill (H. 3767) in March 2011 at the request of 14th Circuit Solicitor Duffie Stone, whose territory includes  Allendale, Beaufort, Colleton, Hampton and Jasper counties, the state’s largest geographical circuit.

“It truly is a great tool to hold the guilty accountable or exonerate the innocent,” Stone said about investigative grand juries when contacted by The Nerve.

Stone said he proposed the idea of a circuit grand jury, which would have the power to subpoena witnesses and records, after “seeing witnesses who wouldn’t come forward” against gang leaders operating in his circuit.

Under Patrick’s and Herbkersman’s earlier bills – both of which never made it out of the House Judiciary Committee – each of the state’s 16 judicial circuits would have a “special investigative grand jury” made up of 18 residents drawn from  the counties comprising a circuit. In South Carolina, every judicial circuit has at least two counties.

“A grand jury is a jury of your peers, and that should be local,” Herbkersman said.

Under the investigative grand jury model, each circuit’s solicitor would have the authority to subpoena witnesses and records to be brought before the jury. Testimony would be done under oath, which would allow authorities to charge witnesses with perjury if they lie.

In contrast, county grand juries don’t have subpoena power, said Stone, who described those juries primarily as “screening” panels that determine whether there is enough evidence to issue an indictment, an official document charging a person with a crime.

“That screening function is extremely limited to cases that have already been made,” said Stone, adding, “It’s after-the-fact; it’s after an arrest.”

A circuit grand jury would be similar to the state grand jury or federal grand juries, which have subpoena power and also can issue indictments, Stone said. State and federal grand juries meet in secret, as would circuit grand juries under Patrick’s and Herbkersman’s proposals.

The state grand jury, a powerful investigative tool of the S.C. Attorney General’s Office, in March indicted then-Lt. Gov. Ard, who pleaded guilty the same day to all seven counts of campaign-finance violations and was sentenced to five years’ probation. He was accused of using campaign funds to purchase personal items, including a flat-screen TV, iPads, clothes for him and his wife, and a family vacation to Washington, D.C.

A coalition of groups, including the South Carolina Policy Council, the parent organization of The Nerve, last week called on state Attorney General Alan Wilson to launch an investigation into Harrell’s use of campaign funds. Under state law, the attorney general, State Law Enforcement Division chief and a specially assigned circuit judge must agree to a state grand jury investigation; the jury is made up of 18 citizens drawn from a statewide list.

The Nerve last week reported, based on interviews with veteran criminal attorneys, that contrary to initial statements from Wilson’s office, a criminal investigation of Harrell could be done before a separate, non-criminal House Ethics Committee inquiry was completed.

The Post and Courier reported on Sept. 24 reported that Harrell had offered no details to the Charleston newspaper regarding more than $325,000 that he had reimbursed himself from his campaign account since 2008, mainly for travel involving his private plane. Harrell, a Charleston Republican, has repeatedly denied the allegations; and he has not been charged either criminally or administratively in connection with the case.

Contacted last week by The Nerve, longtime civil rights attorney Rauch Wise of Greenwood questioned whether circuit grand juries as proposed by Patrick and Herbkersman are necessary. He cited a state law that gives county grand juries the authority to subpoena witnesses – contrary to Stone’s position –  though the law doesn’t specifically address obtaining records.

Wise also said under state law, solicitors can ask county grand juries to indict suspects before they’re arrested.

“ If you can indict somebody out of the blue, then you have the authority to subpoena somebody before a county grand jury to get an indictment,” he said.

But Stone said that “our subpoena power is extremely limited in South Carolina when it comes to criminal law,” noting that it is typically used to subpoena witnesses to testify in a trial, long after an indictment was issued in the case.

Stone said a circuit grand jury could be used in gang and drug cases, as well as in white-collar crimes, including public-corruption cases, which usually involve a public official or employee embezzling public funds.

Stone said though he didn’t know whether having circuit grand juries would result in more public-corruption cases, he believes authorities likely would be more successful if they were used.

“The more sworn testimony you take and the more documents you subpoena to back it up, the more likely you will get convictions of people who deserve it,” he said, adding, “And you’re not going to arrest people who don’t need to be arrested.”

Reach Brundrett at (803) 254-4411 or rick@thenerve.org.