What a judge presiding over a Charleston murder trial said in a text message to a prosecutor whose cousin sat on the jury could decide a man’s challenge to his 2007 manslaughter conviction.
David Rocquemore’s push for post-conviction relief cleared a hurdle last week when a court ruled not to quash the subpoena for Daniel Pieper, who retired last year as an appellate judge, to testify about the text.
But testimony from Michael Nelson, the prosecutor who resigned over his role in the matter, must first indicate the need for further inquiry into Pieper’s actions during the trial, according to Judge J.C. Nicholson’s order.
At issue is whether Pieper knew that Nelson’s cousin was a juror without telling Rocquemore’s defense attorneys, as well as whether the judge’s text violated state canons on legal ethics, according to court paperwork. The juror was dismissed before deliberations.
It’s thought to be the first time that an inquiry into judicial misconduct has served as a basis for post-conviction relief in South Carolina, said Rocquemore’s attorney, Jim Falk of Charleston.
Rocquemore already has lost an appeal centered on the link between Nelson and the juror. Nelson, now a private attorney, showed up in the courtroom during the trial, but he was not on the 9th Circuit Solicitor’s Office team that prosecuted the defendant.
Though Rocquemore, 35, is set to be freed from prison Sept. 10, Falk said his client is determined to find out whether he deserves a new trial.
“In light of all the problems in his trial, he’s entitled to know that he got a fair trial,” Falk said. “He’s in it to clear his name.”
Rocquemore, then a Summerville resident, had argued that he shot Hershel Denson in August 2005 when a party they were attending in Ladson got out of control. The jury in July 2007 acquitted him of murder but convicted him of voluntary manslaughter. Pieper, then a trial judge, sentenced him to 10 years behind bars.
Neither Pieper nor Assistant Attorney General Ashleigh Wilson, who is representing him and the state in the relief hearings, would comment.
“Because I presided over the trial,” Pieper said in an email, “I do not think it would be appropriate.”
Mark Powell, a spokesman for the S.C. Attorney General’s Office, which fights such cases, also said it would be inappropriate “because this matter is still pending.”
Charleston attorney Andy Savage, who represented Rocquemore, learned of Nelson’s tie to the juror, Austin Davey of Mount Pleasant, during the trial. Nelson exchanged texts with Davey during the proceeding, but he later said that the messages had nothing to do with the trial.
Pieper dismissed Davey from the panel.
Nelson also disclosed to the defense team that Pieper had told him to get out when he visited the courtroom “because of his relationship with the jury member,” Savage said then, according to court documents.
“I’m not at all being accusatory,” Savage told Pieper then.
It implied that Pieper had known earlier about the connection between Nelson and the juror. Pieper later denied that was the case.
“I just generally told him to leave,” Pieper said in the courtroom. “Just to assure you ... I was just joking with Mr. Nelson when I told him to get out.”
Rocquemore’s attorneys didn’t learn that the order had come through a text message until a 2012 disciplinary hearing that resulted in Nelson’s six-month suspension from practicing law. Nelson said at first during the hearing that Pieper hadn’t told him to leave, but he then remembered the text he got from the judge during a recess, according to court paperwork.
“Nelson explained that, in hindsight, he assumed the trial judge was ‘messing with’ him,” Assistant Attorney General Courtney Lowell wrote in the motion to quash the subpoena of Pieper.
After the trial, Savage filed a motion to obtain Nelson’s texts, which would have revealed messages between the prosecutor and the juror, as well as the judge. Pieper denied it, though, saying Savage had ample opportunity to get the juror’s texts or investigate whether the link between Nelson and Davey would affect the rest of the panel’s judgment.
Now, the only way to determine the text’s contents is through testimony, Falk said in his court pleadings.
Rocquemore has based his case for relief on conduct rules banning certain communication that excludes a party in the court proceedings that should know about it. Falk argued that the judge’s testimony would be “critical” to that end.
Falk also contended that even though the new evidence doesn’t relate to whether Rocquemore was guilty, it raises the possibility of misconduct and unfairness during the trial.
It was not known when Nicholson, the judge who cleared the case to move forward last week, would rule on Rocquemore’s challenge. He could be retried only for manslaughter and not for murder because of double-jeopardy laws, his attorney said.
“We’re optimistic that we’re going to get the relief he’s seeking,” Falk said. “He deserves to know if he got treated fairly.”
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.