There is a disturbing controversy building in South Carolina where South Carolina’s attorney general has joined calls for a state supreme court justice to recuse himself from criminal cases after Donald Beatty spoke out against prosecutorial abuse — a continuing if not growing problem across the country that we have discussed in prior postings (here and here and here and here and here and here and here). For a prior column, click here . Attorney General Alan Wilson says that he will ask for the recusal in a move that seems intended to signal other justices and judges that such criticism of prosecutors will not be tolerated.

Thirteen of the state’s sixteen solicitors called for Beatty to be barred from prosecutorial abuse cases.

Recently, a prosecutor was found to have violated Rule 3.4 © (disobeying an obligation under the rules of a tribunal); Rule 3.5 (communicating ex parte with a juror during the proceedings unless authorized to do so by law or court order); and Rule 8.4(e) (engaging in conduct prejudicial to the administration of justice) after he knowingly put a cousin on a jury, did not disclose the relationship to the court or defense, and repeatedly communicated with the cousin/juror during the trial. Michael O’Brien Nelson’s law license was suspended for 6 months as well as costs imposed by the state supreme court in this opinion.

For the record, I have long opposed judges and justices speaking publicly at many events, particularly Supreme Court justices. However, in light of past comments by our justices, this is pretty tame in comparison. Moreover, there is no complaint from prosecutors about judges publicly promising to hammer criminal defenses, stop “technicalities” from freeing defendants, or curtailing defenses.

In this case, Beatty spoke in September at the South Carolina Solicitors’ Association annual fall conference and reportedly told the group that the supreme court would come after them for–among other things–witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence. He is quoted as saying “For too long we have looked the other way, but that’s over. We are not just going to overturn convictions; we are going to take your licenses.” Beatty was speaking about egregious acts of abuse that should result in disbarment but rarely rise to the level of formal discipline for prosecutors. We have been discussing the lack of deterrent of such abuses. Even when convictions are overturned (or innocent people released after years in jail) there is rarely criticism, let alone punishment, for the prosecutors. Beatty was warning that South Carolina was going to stand as tough on prosecutorial abuses and violations as it would on crime itself. While I am not sure what precise words he used, the point itself seems a fair one.

However, Wilson objected to Beatty’s suggested that the Court had “turned a blind eye” to prosecutorial abuses and would now go after licenses when they occurred. Wilson said that such comments are “confrontational and threatening” and added that “for him to leave each prosecutor with the impression that he or she is facing potential disbarment or other judicial sanction cannot help but harm prosecutors’ morale and discourage those who wish to make public service and prosecution their career.” Is that really a basis for recusal? That the promise to combat prosecutorial abuse would “harm prosecutors’ morale and discourage those who wish to make public service and prosecution their career”?

The attack on Beatty would certainly seem to be a warning to other judges (a disproportionate number of which are former prosecutors) that they criticize prosecutors at their own peril. It is also astonishing that the threat to take away licenses for the most serious forms of prosecutorial abuse would be viewed as inhibiting people from becoming prosecutors. That raises more questions about the perceived assumptions or inclinations of such individuals in seeking prosecutorial positions.

What do you think?

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