State AG could seek recusal of SC Supreme Court justice from - wistv.com - Columbia, South Carolina |

State AG could seek recusal of SC Supreme Court justice from appeals, lawyer discipline

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SC Supreme Court Justice Donald Beatty SC Supreme Court Justice Donald Beatty
9th Circuit Solicitor Scarlett Wilson 9th Circuit Solicitor Scarlett Wilson
COLUMBIA, SC (WIS) -

South Carolina Attorney General Alan Wilson has notified the state's solicitors that he intends to ask state Supreme Court Justice Donald Beatty to recuse himself from criminal appeals and prosecutor disciplinary matters. The reason: Wilson thinks Beatty may be biased because of a speech the justice delivered in September.

The state Supreme Court hears all criminal appeals in South Carolina and the Attorney General's office represents the state in every appeal. Wilson has no supervisory authority over the court, but could argue for Beatty to remove himself from cases where Wilson thinks Beatty could hold a bias.

BEATTY'S REMARKS

It all started on October 29—nearly one month after Beatty's speech—when solicitor Scarlett Wilson (Charleston-Berkeley Counties) sent Alan Wilson a letter, telling Wilson: "We must take action." The solicitor was upset and wanted the AG to request Beatty recuse himself from any appeal out of her circuit. It happened after Beatty was invited to speak at the 2013 SC Solicitor's Conference in Myrtle Beach.

Beatty spoke to hundreds of assistant solicitors about "abuse of power by the prosecutor," according to a summary of Beatty's remarks prepared by solicitor Wilson's office. The summary is the only record we have of what Beatty said at the conference.

"I'm not here to threaten you, but I want to put you on notice," the summary quotes Beatty as saying. The justice told the group of public officials, "We are no longer turning a blind eye to what y'all are doing," Beatty said referring to the court. He told the group that the court has "been using every tool in the book to protect your convictions," referring to appeals the court has seen in the past. "You have been getting away with too much for too long," Beatty is quoted as saying. "We will also be holding judges accountable."

Beatty pointed to specific cases out of solicitor Wilson's office as examples of the "abuse" by the state's prosecutors. In the latest case, one of Scarlett Wilson's assistant prosecutors was suspended by the SC Supreme Court after the court found that he was texting a juror during a jury trial. The court suspended that attorney in October. Beatty did not participate in the disciplinary ruling.

The justice went on to tell the solicitors that the court would kill any legislation that worked to give the state's solicitor's control over the circuit court docket. On Nov. 21, 2012, the court struck down SC Section 1-7-330 as unconstitutional in the case known as The State v. Langford. That was the law that allowed solicitors to hold exclusive control over what cases are handled in court.

In the order, Beatty was one of three justices to strike down the law. The only dissenting opinion on the order was from Justice Costa Pleicones.

"Langford was decided because we were sick and tired of hearing about the solicitor's abuse of power in reports to us," Beatty is quoted as saying. Beatty cited an instance of what he described as prosecutorial "abuse" from his time as a circuit court judge. That instance, according to Beatty, was a solicitor refusing to grant a defendant a speedy trial hearing after the man had already spent 18 months in jail. The prosecutor told the defendant's attorney, "I will schedule your court date when your client pleads guilty," Beatty is quoted as saying. The solicitor later dropped the charge.

"This is the type of abuse that we have been turning a blind eye on for too long and the reason for Langford," the summary shows.

Beatty also warned solicitors about "selective prosecution," "abuse of power," and "retaliatory prosecution." "For far too long we have looked the other way but that's over. We are not just going to overturn your convictions; we are going to take your licenses," Beatty is quoted as saying.

SOLICITORS WANT ACTION

Solicitor Scarlett Wilson was not at the conference when Justice Donald Beatty delivered his remarks. Wilson sent the Attorney General a summary of Beatty's remarks prepared by "several attendees," Wilson wrote in her letter. "From what I understand, the summary does not begin to capture the vitriolic tone of Justice Beatty's presentation," the solicitor wrote.

"I am requesting that your attorneys move to have Justice Beatty recused from criminal appeals that involve criminal cases from my Circuit," solicitor Wilson wrote, "We are in a slightly different posture than other Circuits as Justice Beatty made specific, pointed remarks regarding my office. These comments were shocking for a number of reasons but especially because they are not true," the solicitor wrote.

On Nov. 6, Orangeburg County solicitor David Pascoe sent a letter in support of solicitor Wilson to the Attorney General's office, also requesting Beatty's recusal from criminal appeals out of his circuit. Pascoe's letter included signatures from 13 of the state's 16 elected prosecutors.

Solicitors Ernest Finney, Barry Barnett and Donnie Myers did not sign the letter to the Attorney General's office.

The Attorney General's Office sent a response to the solicitors on Nov. 21, calling the Beatty speech a "highly troubling matter." Wilson continued, "I fully understand the concerns of each of you regarding these unfortunate remarks. For example, while we all have the highest respect for Justice Beatty, who in many cases has ruled in the State's favor, we believe it is inappropriate for him to make remarks in advance regarding the unconstitutionality of any future legislative solutions to docket control," Wilson wrote.

In the Nov. 21 SC Supreme Court order, the court had already ruled on the unconstitutionality of solicitors controlling the state's circuit court docket, striking down legislation that the court found was unconstitutional.

On Dec. 5, Wilson met with solicitors at a Prosecution Coordination meeting inside a downtown Greenville luxury hotel. We were there when Pascoe and multiple other solicitors showed up for the meeting. Wilson declined to talk with us about what he planned to do about Beatty and any requests for recusals. Wilson has also declined follow up requests for an interview concerning this issue.

In a Dec. 12 Attorney General Wilson told solicitors he would seek Beatty's recusal on a "case by case" basis. Wilson did not point out any specific instances of bias related to Beatty, Wilson seemed to support Beatty's comments, "…even though much of what Justice Beatty – a highly regarded judge – said substantively has been said before in Supreme Court decisions, I believe his remarks were out of line."

The Attorney General did take issue with the tone Beatty used toward the solicitors, "…his points could have been made in a far less adversarial tone…"

As for prosecutor misconduct cases, Attorney General Wilson wrote in his letter, "…we will support the Solicitors' right to seek Justice Beatty's recusal if appropriate."

JUSTICE BEATTY'S RECORD

Donald Beatty grew up in Spartanburg and was elected to Spartanburg City Council before moving on to serve in the state House of Representatives in 1990. In 1995, Beatty left elected office and won a judgeship in the state's circuit court system. In 2003, Beatty was promoted to the state's court of appeals in 2003 until the General Assembly elected him to serve as a Justice on the SC Supreme Court.

As part of this report, we went through every state Supreme Court criminal appeal and lawyer disciplinary ruling since 2009 to see how Beatty voted when compared to the rest of the court. We wanted to see whether Beatty's record showed any bias when it comes to his rulings concerning prosecutors, defense attorneys and lawyer disciplinary cases.

Our review of ever Supreme Court order between Jan. 1, 2009 and Dec. 20, 2013 shows Beatty rarely ruled against the rest of the justices when ruling on criminal appeals—in fact, court records show Beatty ruled with the rest of the court 97 percent of the time. Our review found Beatty never ruled against the court when deciding whether to punish a prosecutor, judge or defense attorney for committing unethical acts.

Here's what we found:

CRIMINAL APPEALS                        DISSENTING                                 BEATTY NOT PARTICIPATING

2009: 56 total                                     7                                                              1

2010: 33 total                                     6                                                              2

2011: 37 total                                     1                                                              1

2012: 27 total                                     2                                                              0

2013: 38 total                                     2                                                              2

LAWYER DISCIPLINE                        DISSENTING

2009: 32 total                                     0

2010: 38 total                                     0

2011: 52 total                                     0

2012: 33 total                                     0

2013: 26 total                                     0

**Every disciplinary ruling showed Justices in agreement

**There were four prosecutors and 11 magistrates disciplined for misconduct. The rest were defense attorneys

"To suggest that he is somehow bias against them, flies in the face of empirical evidence," former Circuit Court Judge Reggie Lloyd told WIS. "All of his examples were actually specific examples of cases that have occurred in South Carolina or other jurisdictions. "He didn't make this up. I defy any of them to find anywhere that kind of conduct would be excused," Lloyd said.

Lloyd was the state's US Attorney before taking a judgeship, then moving on to become director of the State Law Enforcement Division. Lloyd now operates his own law firm in Camden. The former judge said prosecutors were using politics to attack Beatty, "It is literally just throwing a tantrum because somebody decided to tell you what you should have already known and what you should be paying attention to."

"All Justice Beatty was telling those solicitors was; be ethical. Be honest. Give everyone a fair shake at justice and stop using your position to punish attorneys you don't like or to punish someone charged with a crime before there's ever even a conviction," Lloyd told WIS.

Prosecutorial misconduct cases are in the national spotlight. The latest happened in November when a former Texas prosecutor, turned judge, was sentenced to 10 days in jail for withholding evidence from the defense in a 1987 murder case. The accused, Michael Morton, served nearly 25 years in prison after a Texas jury convicted him of killing his wife. The judge was disbarred and Morton's conviction thrown out after DNA evidence proved he wasn't the killer. Morton was freed in March 2013.  

"We see it across the nation when it comes to prosecutorial misconduct cases. To believe it magically stops at the borders of South Carolina; and you'd have to believe in magic, is just illogical," Lloyd said, "That's all Beatty was telling those prosecutors: don't have a win at all cost approach to these cases. Let the evidence and the desire to do the right thing be your guide."

We attempted to talk with Justice Beatty for this report, but a call to his office and a message left with his secretary was never returned.

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