Top Court Rejects – Again – Request to Review Grand Jury Records in Harrell Case

June 9, 2014

Investigative Reports

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SC Supreme CourtIt’s not very often that South Carolina’s chief prosecutor can officially vent a little against the state’s top court, but it happened just days ago in the state grand jury case of House Speaker Bobby Harrell.

The Nerve first reported on May 25 that Attorney General Alan Wilson had asked the five-member high court for permission to submit certain grand jury documents – which by law typically are kept secret – to the justices to review behind closed doors.

Wilson in court papers filed on May 23 wanted to the show the justices that the allegations against Harrell were criminal in nature – not civil allegations as Circuit Judge Casey Manning ruled May 12. Manning ordered that the state grand jury investigation be canceled and that Wilson’s office couldn’t get involved unless it got a referral from the House Ethics Committee, which by law can’t investigate criminal matters against House members.

The documents that Wilson wanted the Supreme Court to review in private included an order signed by Manning impaneling the state grand jury in the Harrell case.

Wilson appealed Manning’s May 12 ruling to the Supreme Court, which has allowed the grand jury investigation to continue pending the appeal. A hearing before the top court is set for June 24.

On May 29, the Supreme Court unanimously rejected Wilson’s request to submit grand jury documents as part of the appeal, ruling that those records were “not presented to the circuit court in this action.”

Wilson wasn’t happy with that decision – and particularly about not being allowed to respond to Harrell’s official position on the request, filed just hours before the justices ruled. The following paragraph contains standard legal jargon, but it also shows Wilson’s frustration with being cut out of normal appellate procedures.

“Appellant (Wilson) first received a copy of the Motion to Strike and Return to Motion to Seal (filed by Harrell’s attorneys) by email at 10:32 a.m.,” Assistant Deputy Attorney General Creighton Waters wrote on behalf of Wilson in a follow-up response to the justices on May 29. “This Court granted the Motion to Strike and denied the Motion to Seal by an Order received by email less than four hours later, at 2:19 p.m., while Appellant was in the process of working on a Return to express for the first time its position to the newly received Motion to Strike.”

Wilson in his follow-up response again asked the Supreme Court to review certain grand jury documents in secret. In a one-paragraph order issued the next day (May 30), the court for the second time rejected his request.

“We have reviewed appellant’s return and decline to alter our prior order,” according to the court’s ruling, signed by all five justices, including Chief Justice Jean Toal.

Toal, a former longtime state House member who went directly to the top court from the Legislature in 1988, has not recused herself from the Harrell case and has declined several requests by The Nerve to comment on possible conflicts of interest in the matter. The Nerve previously reported that Harrell was a key player in the February re-election of Toal to her chief justice seat; South Carolina is one of only two states where their legislatures play primary roles in electing judges.

‘Pyrrhic Victory’

In his follow-up request to the Supreme Court, Wilson cited his reasons why the court should privately review three documents that “initiated the State Grand Jury in this case” – Manning’s order impaneling the grand jury, a court petition by Wilson and State Law Enforcement Division Chief Mark Keel to launch the grand jury investigation, and a supporting legal document discussing the reasons for the criminal investigation. None of those documents has been made public.

Wilson in his court filing gave the following reasons why he believes the grand jury documents are “fair game”  for the high court’s review:

  • The three documents are part of the state grand jury clerk’s official file and were discussed during a public May 2 hearing before Manning in Columbia. At one point during the hearing, Wilson pointed out to Manning that “you have seen the information that we brought to you,” to which Manning quickly replied, “We don’t need to go too far; I know what you’re saying.”
  • The justices should review the documents in secret – without allowing Harrell to view them – because the case is “still at the investigatory stage and no indictment has been issued.” Writing on behalf of Wilson, Waters said: “Of course, if an indictment is ultimately issued, then any defendant named will have complete access to the proceedings before the grand jury. It would be a Pyrrhic victory indeed if Appellant (Wilson) ended up successful in overturning the lower court’s order, only to have the underlying grand jury’s investigation materially undermined by the premature release of specific information before it.”

In arguing against Wilson’s request, Harrell’s attorneys – Bart Daniel and Gedney Howe, both of Charleston; and Bobby Stepp of Columbia – said in court papers that the grand jury documents in question were not presented to Manning in the earlier hearings, held on March 21 and May 2; and that concealing those records from Harrell would violate his due process rights.

Harrell, R-Charleston and the House speaker since 2005, has denied doing anything wrong, and he has not been charged with any crimes.

Latest Legal Arguments

Wilson on Friday submitted his main legal brief – 50 pages – to the Supreme Court for the June 24 hearing.

“This case boils down to whether the Attorney General – who is the statewide elected officer with the constitutional authority to prosecute crimes – and the State Grand Jury – composed of the group of citizens selected statewide with the constitutional and statutory authority to investigate broadly defined matters of public corruption – need permission by way of referral from the House Ethics Committee before they have jurisdiction to investigate and then prosecute if necessary a member of that very body,” Bob Cook, solicitor general,  and Waters, the deputy assistant attorney general, wrote on behalf of Wilson.

Among Wilson’s arguments:

  • Two S.C. Supreme Court rulings in 1994 and 2003 established the principle that the state attorney general can launch a criminal investigation without a referral from a government entity that doesn’t have that authority.
  • A Supreme Court ruling last year, which upheld an earlier ruling by Manning dealing with an ethics case involving Gov. Nikki Haley, doesn’t apply in the Harrell case.
  • There is no evidence in examining the history of the state grand jury, launched in 1989, and state Ethics Act, which took effect in 1992 after the Operation Lost Trust bribery scandal broke, that the attorney general needed the Legislature’s “permission” before pursuing a criminal investigation or prosecution of Ethics Act violations. “Given this, it is inconceivable that the General Assembly intended to make legislators a protected class as compared to other state officials and employees, to be prosecuted only when their colleagues consent, when it was the misconduct of its members that spurred the legislation in the first place,” Cook and Waters wrote.
  • The state grand jury’s authority to investigate public corruption, defined as “any unlawful activity under color of or in connection with any public office or employment,” includes criminal violations of the Ethics Act as well as other criminal offenses outside the act, including, for example, common law misconduct in office and perjury. The South Carolina Policy Council – The Nerve’s parent organization – in February 2013 filed a complaint against Harrell, asking Wilson’s office to investigate what Policy Council President Ashley Landess described in a letter accompanying the complaint as a possible “pattern of public corruption that would be out of the jurisdiction of the House Ethics Committee to investigate.”
  • The separation-of-powers doctrine neither prohibits the criminal prosecution of legislators for public corruption nor requires referral of possible criminal violations from either the House or Senate Ethics committee to the attorney general.

As for Manning’s May 12 ruling, Wilson concluded that it “replaces the Attorney General’s constitutional power as chief prosecuting officer with the Legislature’s power to grant immunity to one’s fellow legislators.” Wilson has asked the Supreme Court to reverse Manning’s ruling.

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