Statewide grand jury change pursued in wake of Harrell case

Wilson

COLUMBIA - Used by prosecutors to bust up gangs and root out public corruption, the attorney general is pushing for greater independence in dealing with the State Grand Jury after its role in the downfall of one of South Carolina's most powerful politicians.

The statewide grand jury played a central part in the back-and-forth in the past year between Attorney General Alan Wilson and former House Speaker Bobby Harrell. Harrell, the longtime Charleston power broker, pleaded guilty to using campaign funds for personal use and resigned in October.

Harrell's attorneys had objected to Wilson using the statewide grand jury to pursue the investigation, and Richland Circuit Judge Casey Manning sided with Harrell. The state Supreme Court later overturned his decision and allowed the investigation to continue.

That high stakes battle was one Wilson said recently he should not have had to fight. The grand jury is an investigative tool, he said, and the attorney general should have free rein to look into potential criminal misconduct of any kind. His office is pushing legislation, sponsored by new House Speaker Jay Lucas, that would restrict a judge's oversight of the State Grand Jury.

"I think that there are constraints on our office that shouldn't be there, and we should address those," Wilson said.

The change being sought in how the statewide grand jury operates is part of the push to strengthen ethics laws governing South Carolina officials' conduct that Lucas has said is among his top priorities in the upcoming legislative sessions. The House speaker and others say ethics reform is needed because lawmakers have shown they are incapable of policing themselves, eroding the public's trust in government. But critics see it as weakening civil rights protections for those suspected of crimes by removing a necessary check on the power of prosecutors.

Referred to by some as the fourth branch of state government, the statewide grand jury was established in 1989 to give law enforcement and the state's attorney general a way to compel testimony and subpoena documents in criminal cases of statewide significance.

Defense attorneys plan to fight the proposal to restrict a judge's ability to weigh in on that grand jury process. A familiar phrase in legal circles is that any decent prosecutor could get a grand jury to "indict a ham sandwich" - the bar for a criminal charge is seen as low and prosecutors are viewed as leading jurors to a conclusion.

House Minority Leader Todd Rutherford, a Columbia Democrat and defense attorney, said he has seen abuse in cases handled by the statewide grand jury because it operates under a different set of laws than most criminal proceedings. Rutherford said clients indicted in cases overseen by it have been forced to wait days or even a week for a bond hearing. Most cases that occur outside the statewide grand jury system mandate such a hearing within 24 hours.

"There ought to be roadblocks," Rutherford said. "We need more protections for individuals, not less. Anytime you're introducing more secrecy and less oversight, that's not the way the government needs to move."

Rutherford said there has also been a lot of skepticism about the grand jury process in the wake of police killings of unarmed black men. In both Ferguson, Mo., and New York City, police officers involved were not charged with crimes after a grand jury heard the evidence.

Prosecutors and law enforcement are generally given wide latitude to pursue investigations. There are many other checks and balances in the system to ensure justice is done, said John Crangle, a civil rights advocate and director of the government watchdog group S.C. Common Cause. Those include a criminal trial and the appeals process.

"It could happen but it hasn't happened in recent years, and I don't know that its likely to happen in the near future," Crangle said of politically motivated prosecutions.

University of South Carolina law professor Colin Miller said statewide grand juries are common in states across the country. Grand jury proceedings except for its vote are secret to allow the gathering of evidence and compel testimony without compromising a trial.

Grand juries were put into place as a check on a prosecutor's power to bring criminal charges, Miller said. The reality is that when a prosecutor wants an indictment it is handed down "99 percent" of the time.

In that sense, Wilson's change would ratify what happens in practice, he said. "It makes sense for the judge to have that oversight and make sure we're not having overzealous prosecution," Miller said. "(But) most cases lead to an indictment and courts have rarely if ever exercised their power over ... the process. That's consistent with the way most states have interpreted their grand juries."

Supreme Court Chief Justice Jean Toal, who oversees the court system, said she was not familiar with Lucas' bill. But she said it's good that legislators are re-examining the system.

"We've now had a very controversial case that involved the statewide grand jury so it makes sense to see if there are ... improvements that can be made," she said.

Whatever the system, Toal said there has to be a place for a judge to weigh in where appropriate. "There's got to be some presider that deals with resolving questions between the prosecutor and those who are the object of a grand jury investigation when a dispute occurs," Toal said. "I've got a lot of confidence in Jay Lucas and the leadership of the House. I'm sure they will pass something balanced."

Reach Jeremy Borden at 708-5837.