S.C. Supreme Court Supporting Secrecy in Harrell Case?

July 14, 2014

Investigative Reports

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Finger on LipsAll courts shall be public, and every person shall have speedy remedy therein for wrongs sustained. – Article 1, Section 9, S.C. Constitution.

South Carolina’s top court, however, apparently ignored the first part of the above sentence last week in its ruling involving House Speaker Bobby Harrell.

The S.C. Supreme Court in Wednesday’s ruling about the state grand jury investigation of Harrell recommended that any future “ancillary” legal arguments concerning the speaker’s case be held behind closed doors – giving what Harrell wanted, but didn’t get, in the beginning.

Several attorneys, each with years of state grand jury experience but who asked not to be identified, toldThe Nerve that they believe the justices – despite ruling that the state grand jury investigation could continue – slipped in the secrecy recommendation in a footnote to help Harrell.

“It seems to reaffirm the secrecy that Harrell wanted in the first place,” said one attorney.

Ironically, however, Harrell never publicly asked the five-member Supreme Court to close such hearings in his case, either during the June 24 public hearing before the high court, or in his official written response to the appeal filed by S.C. Attorney General Alan Wilson.

And although state law requires that the state grand jury meet in secret, there is nothing in the law that specifically says related, procedural matters outside those sessions have to be private as well, a review byThe Nerve found.

Harrell, R-Charleston, wanted a secret, initial hearing before Richland County Circuit Judge Casey Manning, the administrative judge overseeing the state grand jury investigation of Harrell, to disqualify Wilson from the case – an issue that would have to be decided under state law outside the state grand jury’s presence.

Manning, however, kept the initial March 21 hearing open to the public, as well as a subsequent hearing on May 2.

“This is an ancillary hearing,” Manning declared at the start of the March 21 hearing, in effect denying Harrell’s motion to keep it secret.

But despite no formal request by Harrell to the Supreme Court for future secret hearings, the justices in a footnote on Page 11 of last week’s 12-page ruling said, “Due to the secrecy afforded state grand jury proceedings, future arguments regarding jurisdiction, or any other ancillary matter, should be held in camera.”

“In camera” is a term meaning “in private” or “in (judges’) chambers,” according to legal definitions.

No Action, No Comment

The South Carolina Press Association, along with several newspapers and television stations, filed a formal request the day before the March 21 hearing asking that the hearing be open to the public. The Nerve, through its parent organization, the South Carolina Policy Council, is an associate member of the association, though The Nerve had no direct involvement in the March 20 motion.

“Movants seek to intervene in the proceeding for the purpose of contesting any motion to close any hearing conducted by this court considering disqualification of the Attorney General and any other matter, excluding the deliberations of the State Grand Jury of South Carolina itself, on grounds that open courts are guaranteed by the constitutions of South Carolina and the United States,” according to the motion.

For now, though, the Press Association has no plans to formally ask Manning again to keep any future hearings involving Harrell open to the public.

“The S.C. Press Association believes hearings about procedures in the case – if any – should be open and has submitted that argument to Judge Manning in the previous hearing,” Bill Rogers, the association’s executive director, told The Nerve in an email response Friday afternoon. “The group doesn’t plan to offer further arguments at this time.”

Contacted Friday by The Nerve, Wilson spokesman Mark Powell declined comment on whether Wilson believes future court hearings involving Manning should be public. During the June 24 hearing before the Supreme Court, Chief Justice Jean Toal took issue with Wilson’s public statements earlier this year about the case, saying she “never heard of having press conferences to announce that you’re going to submit something to a grand jury –ever.”

Charleston attorneys Bart Daniel and Gedney Howe, who are representing Harrell, did not respond to written or phone messages Friday from The Nerve seeking comment about whether they plan to push for any secret court hearings in the near future.

Harrell, the House speaker since 2005 and who was first elected to the House in 1992, has publicly denied doing anything wrong, and he has not been charged with any crimes. He has not spoken to The Nerveabout his case, despite numerous written and phone messages over the past two years seeking comment.

‘Trying to Stop an Investigation’

In its ruling Wednesday, the Supreme Court reversed Manning’s May 12 order stopping the state grand jury investigation of Harrell. The state grand jury under state law has the authority to investigate public corruption, which the South Carolina Policy Council – The Nerve’s parent organization – alleged against Harrell in a complaint filed in February 2013 with Wilson.

Manning ruled that the House Ethics Committee, which investigates only civil ethics violations, has jurisdiction in the case – an issue that Manning brought up on his own. In reversing Manning, the Supreme Court ruled that Wilson could continue the grand jury investigation, and that he didn’t first need permission from the House Ethics Committee to do so.

But the justices sent the case back to Manning’s court to determine whether Wilson should be disqualified from the case, as sought in a motion by Harrell. Brad Wright, a House attorney who is Harrell’s chief of staff, testified at the March 21 hearing that Wilson had threatened him in a private meeting last year at the Attorney General’s Office over a then-pending ethics bill. Wilson denied the accusations in his testimony.

Manning didn’t rule on that issue – which is why Harrell likely didn’t ask the Supreme Court to address it – noting in his May 12 ruling that Wilson’s office didn’t have jurisdiction in the first place.

Given the Supreme Court’s ruling last week, Manning likely will have a strong incentive to keep the public out of any future hearings on the disqualification issue or other related matters – something which a former head of the state grand jury can’t understand.

“We never had any closed motion hearings,” said Jon Ozmint, when contacted Friday by The Nerve.“This is all about somebody trying to stop an investigation. I never had a defendant even try this.”

Ozmint, who served as the state grand jury chief for five years during then-Attorney General Charlie Condon’s tenure (1995 through 2002) and who was the state Department of Corrections director from 2003 through 2010 under then-Gov. Mark Sanford, pointed out that any motion to disqualify Wilson in Harrell’s case would have to be done outside the state grand jury’s presence.

“I literally did hundreds of grand jury cases, and I never had a judge in the grand jury room,” the Columbia attorney said.

Under state law (Section 14-7-1720 (A) of the S.C. Code of Laws), the only people allowed to be present during state grand jury sessions, except during the jury’s deliberations and voting, are the grand jurors, the attorney general or his designee, a court reporter, an interpreter if necessary, and the testifying witness.

Ozmint said he has seen motions to disqualify prosecutors “dozens of times” over his legal career and that “it’s all been done in public,” though he acknowledged that unlike in Harrell’s case, all of those instances occurred after an indictment was issued.

Asked about Harrell’s claim that Wilson sought a state grand jury investigation for political reasons, Ozmint, a Republican, replied: “All over the country and all over South Carolina, we have elected prosecutors, which makes them political creatures. But the criminal justice system has checks and balances to prevent abuse of that power. And specifically, those checks are statutory and constitutional provisions, our rules of court, our rules of evidence, a judge, 12 jurors and the appellate process.”

‘Harrell’s Prominence’

Contacted Friday, veteran criminal defense attorney Jack Swerling of Columbia, who has practiced law for 40 years, told The Nerve he believes that the Supreme Court’s recommendation on holding future closed court hearings in Harrell’s case is “under the umbrella of the secrecy of the state grand jury, which is historical and traditional.”

“To me, the secrecy of the grand jury is inviolate; it’s absolute,” Swerling said. “I understand the press wants to know. I understand the public’s frustration. But all things being said, if you get to open that up, it wouldn’t be right.”

State law says that state grand jury proceedings are secret, though it’s in the same section (Section 14-7-1720) that excludes the administrative judge overseeing the state grand jury from the list of those allowed to be present in the state grand jury room. And there’s nothing in the law that specifically requires related procedural matters outside the grand jury’s presence, such as a motion to disqualify the prosecutor before an indictment is issued, to be done in secret.

In the motion by the South Carolina Press Association and media outlets requesting that the March 21 hearing before Manning be open to the public, veteran media lawyer Jay Bender wrote, “Historically the secrecy attached to grand jury proceedings has application only to those ‘things which transpire in the Grand Jury room,’” citing a 1961 state Supreme Court case.

“Harrell’s prominence in the affairs of the State of South Carolina demands that any judicial proceeding concerning him be open for scrutiny by public and press so that the public may have confidence that ‘justice was in fact done,’” Bender wrote.

“Public scrutiny would be appropriate were Harrell simply a member of the General Assembly,” Bender continued, “but given Harrell’s position as Speaker of the House of Representatives, and the allegations that he has violated state law with respect to the use of campaign funds, any outcome reached by a secret judicial hearing would be met with understandable skepticism regardless of whether the decision were favorable or unfavorable to Harrell.”

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