Tim Smith

tcsmith@greenvillenews.com

COLUMBIA — Many defendants in South Carolina’s lower courts are not advised of their constitutional rights, trials are held without any lawyer present in the courtroom and those found guilty are sometimes given the choice of paying a fine they cannot afford or going to jail, in effect creating a debtors’ prison, a national study of the state’s magistrate and municipal courts has found.

The study, “Summary Injustice,” by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, was issued Monday following observations by attorneys in 27 lower courts in December 2014 and July 2015.

South Carolina has about 319 magistrates and about 200 municipal courts, called summary courts, according to the state's judicial website, that handle misdemeanor charges ranging from traffic violations to shoplifting and drug possession.

The report paints a bleak picture of what can happen to poor and unrepresented defendants in the state’s lower courts, where often no lawyer is present, cases are sometimes prosecuted by police and thousands face criminal charges that can send them to jail for 30 days with a criminal record.

Among the report’s other findings are that the courts often fail to inform defendants of their right to counsel and refuse to provide counsel to the poor at all stages of the criminal process.

“When you go to a summary court in South Carolina, you find yourself in a judicial netherworld where the police officer who made the arrest acts as the prosecutor, the judge may not have a law degree, and there are no lawyers in sight,” said Susan Dunn, legal director of the ACLU of South Carolina. “By operating as if the Sixth Amendment doesn’t exist, these courts weigh the scales of justice so heavily against defendants that they often receive fines and jail time they don’t deserve.”

Chris Welborn, a Rock Hill criminal defense lawyer and treasurer of the NACDL, said some may be shocked when they read the report.

“Sadly, as someone who has spent my career representing the criminally accused in South Carolina, I am only able to underscore how pervasively these courts have been disregarding the rights of the people of South Carolina, and that it’s been like this for decades,” he said.

Magistrates and municipal judges are not required to hold law degrees in South Carolina. Newly appointed magistrates must have a four-year degree and both types of judges must undergo training and certification exams. Magistrates who are not attorneys must observe 10 trials before handling one of their own.

Summary judges are provided with a manual that offers information about procedures, how the court system works and a defendant's rights. In fact, the state requires all magistrates and municipal judges to use a checklist when handling criminal cases. In those cases in which a jail sentence is likely, judges are required to inform defendants of their right to counsel and to court-appointed counsel if they are financially unable to hire their own lawyer.

Among the courts observed for the study was Landrum Municipal Court in Spartanburg County.

The report includes the story of a woman, identified as AP, who appeared in the Landrum court last year on a charge of possession of drug paraphernalia.

“Without an attorney, AP pled guilty to the charge, while also providing an explanation to the judge that, if true, would have in fact made her innocent of the allegations,” the report stated. “The judge made clear during sentencing that he did not believe her story and asked AP if she had $620 with her to pay the fine. AP said she did not, but had just started a job at a fast food restaurant. The judge scoffed and said she would not be able to pay with that job and sentenced her to 30 days.”

The woman, according to the report, then began “sobbing, explaining she has two children, begging for time to pay, and asking why others were given time to pay and she was not. With no response from the judge, AP was handcuffed and taken to jail.”

The Landrum court also was mentioned in a section discussing how defendants are sometimes not advised of their constitutional rights.

“In July 2015 in Landrum Municipal Court, an observer reported that the judge advised defendants that they could request a jury trial, but never made any mention of other important rights including the right to counsel and the right to appointed counsel if the defendant could not afford counsel,” the report states. “In all three of these courtrooms, defendants were sentenced to jail time without ever being informed of their legal rights.”

Most of those in the summary courts are not represented by a lawyer, according to the study, although the U.S. Constitution guarantees those facing criminal charges with possible time behind bars with the right to an attorney, even if they cannot afford one.

“Many times they are not even told of their right to have a lawyer, much less at the state’s expense,” the study reported. “In the few courts observed where the accused were informed of their rights to a lawyer and a trial, that advisement was often conducted in a group or by video, with no individual inquiry into a particular defendant’s understanding of these rights and what it meant to waive them.”

A lack of representation by a lawyer also is prevalent before trial, the study reported. Many defendants in bond hearings face a judge without any representation and cannot afford the "modest" bonds set, so they remain in jail.

“As a result, many people often serve the maximum possible sentence prior to being found guilty or, as in some cases, not guilty,” the report stated.

The report cited the case of MB, a Beaufort County single mother charged with DUI on a moped. At her bond hearing, the judge told her she had more than $1,000 in unpaid fines due the state Department of Motor Vehicles and set that as her bond amount, saying he could not tell her what the fines were about.

Unable to pay the bond, the woman stayed in jail for three weeks until Thanksgiving when she asked what was happening to her case. Brought to court, she was offered to be released on time served if she pled guilty. She refused, saying she wanted a lawyer.

Unbeknownst to her, her case came up while she was in jail, she was reported as having failed to appear and tried anyway, found guilty and sentenced to the $1,022 fine. A bench warrant was issued for her arrest, even though she had been in jail the whole time.

According to the report, the woman was finally released after she served 30 days behind bars, the maximum sentence for her offense. It turned out there were no DMV fines.

A clerk found the failed-to-appear error and filed a motion for a new trial. The woman eventually found an attorney and the charges were dismissed and expunged from her record.

But the woman lost her job and spent Thanksgiving away from her children, the report noted.

Poor defendants charged with low-level offenses “suffer disproportionately” in the state’s summary courts, the study concluded.

“Many judges offer a ‘choice’ to defendants: pay a fine or spend time in jail,” the report stated. “If the accused cannot afford the fine, or the judge simply suspects the accused will not be able to pay the fine, that person will be sentenced to jail merely because she is poor.”

Sprinkled throughout the 28-page report are examples of cases observed by lawyers, illustrating the constitutional violations alleged by the groups.

“These are unconscionable and unacceptable practices that cause significant harm and must be remedied,” the report concludes. “These abuses masquerading as ‘justice’ are a corruption of the legal process and an embarrassment to the people of South Carolina. Unfortunately, the many constitutional violations documented in this paper may be merely the tip of the iceberg of injustices being committed against people in South Carolina.”

Sen. Larry Martin, a Pickens Republican and chairman of the Senate Judiciary Committee, said Monday morning he had not read the report.

“It will certainly be a matter that I will take a good, thoughtful look at,” he told The Greenville News.

He said given the manual provided to train summary judges, he does not believe observers can argue there is a lack of education or training.

"The ACLU report infers the deficiencies it cited are due to either a lack of training or education," he said. "This manual for which training for these judges is provided would suggest otherwise."

Martin said the issue of providing public defenders for municipal courts is something that must be addressed this year in the budget. The budget last year included a proviso that did not require public defenders to be used in municipal courts.

“I am not familiar with how people are being locked up in summary courts with no benefit of counsel,” he said. “That is not supposed to be how that system works.”

Rep. Greg Delleney, a Chester Republican and chairman of the House Judiciary Committee, also said he had not seen the report.

“As far as I’m concerned, we have too much socialism in the criminal justice system as it is with the public defender system now,” he said. “I just have to see the report and see if I agree with what they are talking about or not.”

The groups reported that while the findings call for further study and solutions, they are not finished in studying the courts. They said summary courts in several counties are being studied further to look at their procedures.

NACDL President E.G. “Gerry” Morris said while the study is focused on South Carolina, it is part of a larger effort to study state public defense systems across the nation.

“The ultimate goal is to identify and document weaknesses in different public defense delivery systems that must be remedied as well as to highlight strengths and successes in systems that can and should be replicated elsewhere,” he said.