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Editorial: A reminder of SC legislators’ inappropriate perk, courtesy of Alex Murdaugh

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Prosecutor Creighton Waters looks on as Columbia lawyer Dick Harpootlian addresses the judge during a bond hearing for Alex Murdaugh. Gavin McIntyre/Staff

Visit our Murdaugh Investigation page for or more updates on the Murdaugh murders and Alex Murdaugh court appearances.

It would have been easy to overlook — or fail to understand — a fascinating exchange last month between prosecutor Creighton Waters and defense attorney Dick Harpootlian.

There was, after all, quite a lot going on in the Colleton County courtroom where the two men squared off:

Alex Murdaugh was making his first public appearance in nine months.

Mr. Harpootlian was doing back flips to make sure the public didn’t hear anything about the evidence the prosecution said it had to back up its double-murder indictment against the prominent Lowcountry lawyer.

The two attorneys were agreeing that they’d be happy to take control of what information about the case was available to the public.

Circuit Judge Clifton Newman was reminding the lawyers — and we hope other S.C. judges, who sometimes forget — that our constitution requires our courts, and the operations surrounding them, to remain open to the public.

And dropped right in the middle of all that, when Mr. Harpootlian was urging the judge to set a trial this fall so police could get back to looking for “the real killers” and Mr. Waters was suggesting that January might be more realistic, was this:

“Obviously,” Mr. Waters said, “Mr. — Senator — Harpootlian has his legislative obligations at that time.”

“Which I will waive,” came the immediate, adamant retort from the Richland County Democrat: “Which I will waive.”

What he was willing to waive wasn’t his responsibilities as a senator; instead, it was what every judge, prosecutor and probably other lawyer in South Carolina is painfully aware of: the special privilege South Carolina’s chief justice grants to lawyer-legislators to delay just about any hearing or trial they want. And of course Mr. Harpootlian would be eager to waive that privilege, because a delay is the opposite of what he wants in this case.

But when lawyer-legislators believe it’s in the best interest of their clients to delay — when their clients are out on bail and their best bet is that witnesses’ memories will fade with time, or police officers will move on to other jobs, for instance — they can manipulate the court schedule by playing their get-out-of-court-free card.

We have no idea how often this happens. Nor do we know how many lawyer-legislators make sure word gets around that they can keep cases from going to trial — which makes them much more attractive to a certain type of client. We’ve been told that most lawyer-legislators don’t abuse the privilege, although everybody probably has a different definition of abusing the privilege.

What we know is that the codification of the special privilege (a lot of judges had been granting it on their own long before) occurred in 2001, when then-Chief Justice Jean Toal issued an order forbidding judges from requiring lawyer-legislators to appear in court during the six months a year the Legislature is generally in session. Her order made an exception for “extraordinary circumstances” where “substantial rights of the parties to the litigation will be defeated or severely abridged by the delay, or where the litigation involves emergency relief and irreparable damage.”

Nine years later, she replaced that perhaps-reasonable accommodation for legislative service with what she called “absolute protection” from legislators having to appear in court during session. She also said lawyer-legislators could do precisely what Mr. Harpootlian signaled he was going to do: show up in court to represent clients when they chose to do so. We don’t mean to imply that Mr. Harpootlian has abused his privilege — he had already built a successful law firm before he ran for the Senate in 2018 —but the order allows lawyer-legislators to appear in court for one client but beg off for another the same day, and even to represent a client at one stage in the process and not another.

S.C. Chief Justice Don Beatty temporarily expanded the exemption during the pandemic but then scaled it back early this year, telling judges they could order lawyer-legislators to appear in court just like any other lawyers to represent their clients for bond-revocation hearings and emergency family court hearings involving children.

That was a big improvement, but the pushback he apparently got from legislators and the back-and-forth that preceded the changes suggested that lawyer-legislators have been abusing their privilege to a much greater extent than we imagined. And it suggested that before last year, judges had not been routinely doing what they should have been doing when lawyer-legislators demanded delays: immediately scheduling their cases to begin the following August.

It also didn’t go as far as it needs to. There is no question that it’s good to have people who are trained in the law involved in writing our laws. But even the slightly improved version of the immunity provision still amounts to the court carving out a special class of attorneys whose clients automatically receive special treatment.

Unless the chief justice is able to rein in that privilege much more, the Legislature needs to require lawyer-legislators to publicly report all cases where court action is delayed because of their special protections, so we don’t just learn about it if we’re listening really closely to court proceedings where a prosecutor is willing to raise the issue.

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