Roughly half of South Carolina officials charged with misconduct in office during the past two decades were not convicted of the offense, a Post and Courier analysis of state court records shows.
The newspaper examined S.C. Judicial Department data on criminal case dispositions for common law misconduct in office and a lesser charge, statutory misconduct in office. The analysis determined that out of 760 such charges adjudicated between July 1, 2000, and the end of June, 364 cases ended without convictions — 48 percent.
For many in South Carolina's legal community, misconduct in office charges are important tools to keep public officials accountable, but their use remains controversial and some say the laws are overly broad.
"It is used as a hammer by prosecutors across our state," said Greg Harris, a Columbia attorney and former federal prosecutor. "It can be any number of (offenses). It can be the misappropriation of funds. It can be violations of state ethics laws. ... Both (charges) are very broad. The reason we have these statutes is to hold officials to a higher standard."
The common law offense, which carries a sentence of up to 10 years in prison, has been at the center of a number of high-profile cases against public officials in the Palmetto State, including those pursued against several former lawmakers during the Statehouse corruption probe involving political kingmaker Richard Quinn.
The lower-level statutory offense carries a maximum penalty of up to one year in jail and a $1,000 fine.
Origins of a law
Common law misconduct in office was never passed by the Legislature or signed into law.
The offense is derived from 13th century English common law, said Lewis Burke, distinguished emeritus professor at the University of South Carolina School of Law.
Common law describes a body of old English law that is derived from customs and judicial precedents, and is not formally written into present-day statutes or codes.
"(It) remains part of our system when the courts find it applicable," Burke said. "From what I can tell, this crime was not recognized in (South Carolina) until 1983."
In that year, the state Supreme Court heard a case against Arthur G. Hess, a former Columbia police chief who was accused of corruption. Prosecutors lacked the ability to adequately move forward with the case under laws that existed at the time, Burke said.
"Since a violation of the statute on misconduct in office was a misdemeanor and carried a punishment of only one year, the case against the police chief was considered more serious so they used the common law charge," Burke said.
In the Hess case, the state Supreme Court looked to previously tried cases in New Jersey and applied that legal precedent.
At that time, ethics rules governing public officials in South Carolina were among the most lax in the nation. That changed after the FBI made public a sweeping Statehouse corruption investigation in July 1990 that shook the state's political landscape — Operation Lost Trust.
The sting eventually took down more than two dozen lawmakers, lobbyists and others in what was considered to be the largest public corruption probe in U.S. history. The episode led to the passage of a 1991 bill that tightened ethics restrictions, preventing lobbyists from even buying a cup of coffee for a lawmaker.
But misconduct in office does not always involve widespread corruption.
Misconduct cases
A review of recent misconduct in office charges shows the laws being applied to a wide spectrum of alleged crimes.
In late October, the State Law Enforcement Division charged former Eutawville Police Chief Steven Daniel Holloway with grand larceny and statutory misconduct in office after he took or failed to account for $4,606 between December 2017 and August 2018, according to an arrest affidavit.
Since June, 19 correctional officers in South Carolina's prisons have also been charged with some form of misconduct in office. Of the officers charged, 16 face the common law offense and three face the lesser, statutory offense, according to arrest affidavits.
On July 15, 41-year-old Janean Lateefah Dunbar, a former officer at Trenton Correctional Institution, was found guilty of possessing marijuana with intent to distribute, furnishing contraband to an inmate and common law misconduct in office. She was sentenced to six years in prison and five years of probation, according to the S.C. Department of Corrections.
Over the years, several sheriffs in the Palmetto State also have been convicted of misconduct in office. A Post and Courier investigation earlier this year exposed how one out of every four counties have had their sheriffs accused of breaking laws they were sworn to uphold. Charges ranged from embezzlement to domestic violence.
More recently, Ralph Martino, a St. George town councilman, was charged by SLED with the common law offense after he allegedly used his position to threaten a police officer during a traffic stop.
Responding to the allegation, Martino's attorneys, Sean Wilson and Brian Byrd, called their client a respected public servant and community leader.
"While any comments regarding the details of this case would be inappropriate at this time, we are confident that Mr. Martino will be exonerated when all of the facts of this matter are brought to the light," the attorneys said.
A useful tool
Despite the frequency with which both misconduct offenses are filed, many cases result in no convictions.
The newspaper's analysis of case dispositions found that out of 491 common law misconduct in office charges disposed of between July 2000 and June of this year, 47 percent ended with convictions while 51 percent ended without.
The statutory offense fared slightly better with 45 percent of 269 cases ending with convictions and 43 percent of the cases ending without.
Bill Nettles, a Columbia lawyer and former U.S. attorney for South Carolina, said part of the difficulty in prosecuting official misconduct lies in proving that the individual used their position of power to take some kind of action for personal gain, revenge or other nefarious purpose, and did so during the course of their job.
Part of the reason so many misconduct cases end without convictions may lie in their use as a leverage tool, Harris and other attorneys said.
If there is an underlying criminal offense, such as a correctional officer bringing contraband into a prison, or a public official driving under the influence, prosecutors sometimes make plea deals in which the misconduct charge is dropped if that person pleads guilty to the other criminal offense, said Bart Daniel, a Charleston defense lawyer and former U.S. attorney who led the federal government's prosecution in Lost Trust.
Misconduct in office offenses are also filed in situations in which a public official is accused of committing some kind of action that doesn't neatly fit into an existing criminal offense, Daniel said.
In South Carolina, common law misconduct is strongly tied to the legal concept of crimes of moral turpitude, a kind of catchall description of any action that violates accepted standards of a community, according to a S.C. Supreme Court definition.
"This crime occurs 'when duties imposed by law have not been properly and faithfully discharged,'" according to a 2004 opinion from the S.C. Attorney General's Office.
Harris, who represented former state Rep. Rick Quinn in the recent Statehouse corruption probe, said misconduct charges can be brought for a wide array of actions.
"It's scary to me and it should be scary to the general public that everything can be misconduct in office," he said. "It's very broad. It can be anything from the violation of a regulation to the violation of an oath of office if done intentionally."
But Harris also recognizes why such laws are necessary.
"They are often used like many other charges that have significantly enhanced penalties, as leverage by a prosecution team," he said.
