York County court efficient in trying criminal cases

jmcfadden@heraldonline.comAugust 17, 2013 

York County is part of the only court circuit in the state to exceed the state Supreme Court’s goal for disposing pending criminal cases last year.

The county’s top prosecutor says that success may be affected by a state Supreme Court decision that could eliminate the longtime control prosecutors have over deciding when a case and defendant will appear before a judge. Solicitors may have to adopt a new management system requiring more staff and money.

The 16th Circuit Court Solicitor’s Office, which includes York and Union counties, disposed of 89 percent of its pending criminal cases within the last year, beating out larger counties such as Richland and Greenville.

The state Supreme Court’s benchmark is 80 percent.

According to a county-by-county breakdown 91 percent of pending cases in York County were disposed by July 31, ahead of the rest of the state. Eighty-four percent of cases were disposed in Union County, followed by 82 percent in Calhoun County and 80 percent in Dorchester County –both in the First Circuit.

York County prosecutors closed 5,944 of the 9,199 cases in the county solicitor’s office this year. More than 6,400 new police warrants were filed between July 2012 and June this year, and 3,205 cases were still pending by July 1, the start of the new fiscal year.

Last year no circuit in the state met the benchmark.

The 16th Circuit Solicitor’s Office finishing the year at 62 percent, better than all other circuits. The office disposed of 7,402 of 11,061 pending cases. In 2011, the 16th Circuit finished at 66 percent, still ahead of the 15 other circuits and in 2010 the 16th Circuit disposed of 68 percent of its pending cases, ahead of all others.

Judges who understand the limited time available to move cases, an “above-board” relationship with the defense attorneys, the right amount of resources and a stern reputation contributes to that success, said 16th Circuit Solicitor Kevin Brackett.

“We have juries that are tough and generally convict when they see the right amount of evidence,” Brackett said, adding that the county’s resident judges John C. Hayes III and Lee Alford are “tough,” as well.

“The plea offers we make are regarded as pretty tough,” he said. “We’ve got a reputation for being a pretty tough circuit.”

Brackett said his office needs more attorneys to compensate for the growing number of cases prosecutors handle each year.

A decade ago solicitors disposed of fewer cases within the same 48 weeks of court they now use to prosecute almost twice that number, Brackett said.

During the 2002-2003 fiscal year, York County solicitors closed more than 4,700 of the 6,860 pending cases that came through their office. More than 5,000 new police warrants were filed during that time.

Court officials say the increase is due to the county’s population growth, a 61,000-person, or 37 percent, increase between 2000 and 2010.

More people means more charges and more cases, Brackett said.

The catch, Brackett said, he is working with nearly the same number of attorneys in his office now that former solicitor Tommy Pope worked with 10 years ago.

The 16th Circuit Solicitor’s Office employs 24 solicitors, including Brackett, two Union County attorneys, an administrative deputy solicitor, family court prosecutors, two attorneys who prosecute DUI cases in magistrate court and a criminal domestic violence prosecutor who prosecutes cases in both magistrate and General Sessions court.

The number of weeks solicitors and defense attorneys can use for trying cases before a judge within a term, or week, of court hasn’t budged.

About four years ago, an exception was made when Brackett said he convinced state Supreme Court Justice Jean Toal to give York County a few extra weeks of court to deal with a surge of cases.

The added court time led to problems in the public defender’s office, whose attorneys had to prepare cases without an “off week” to ready themselves for court.

Docket change controversy

Part of what keeps criminal cases rolling through York County courts is a management philosophy focused on organization and pre-planning, Brackett said.

Attorneys working on cases older than six months must report to Brackett about what’s delaying the case, or what difficulties they’re encountering.

“We monitor the cases that way and they know we’re watching so they’re constantly pushing them through,” he said.

But managing that momentum could soon dissipate if the state court system changes the way it operates as a result of a Supreme Court decision to take control of the docket from prosecutors.

Last November, the state’s highest court ruled that a 1980 statute that gave solicitors exclusive control over the court docket – enabling them to decide when cases would be tried and in what order – was unconstitutional.

The decision came after the S.C. Public Defender’s Association challenged the statute during a 2008 Edgefield County robbery case.

To support their claims, public defenders cited a 2005 law and legal opinion drafted by the state solicitors’ association that definitively places solicitors in the executive branch of government, according to the original Supreme Court opinion.

Solicitors have argued that judges always had the last word on when a case will be heard, and the legislature decides how cases will be called.

Prosecutors last year filed a petition for rehearing concerning the opinion. It was denied. The Supreme Court also suspended enforcement of Chief Justice Toal’s administrative orders until other options can be reached.

Solicitor-control of the docket creates an uneven advantage when trying cases since prosecutors can call the case at “virtually any time,” said Harry Dest, 16th Circuit public defender.

Dest said the effect of the Supreme Court’s decision has yet to be ironed out, but he feels there needs to be a broader discussion between the defense and prosecution about coordinating the trial docket “so there’s not one side being able to call it in a relatively short period of time.”

Though defendants can file speedy trial motions and defense attorneys can request that a case be continued until a later date, Dest said trials should be called in a more timely fashion.

“I think there needs to be some rules set out regarding notice for trial,” he said. “There needs to be a clear understanding of what the trial docket is way in advance of just a week or two.”

Public defenders, he said, are “constantly responding.” More advance notice, he said, would help them adequately prepare for court while juggling an already-overwhelming caseload.

The American Bar Association recommends that public defenders work 150 felony cases per year. The 15 public defenders working in the 16th Circuit, including a Union County attorney and Dest , handle about 600 cases per attorney, Dest said. In a given year they handle more than 6,000 cases.

“From a public defender’s perspective, we handle 80 to 85 percent of all the cases in the system,” he said. “Our voice should be heard and is going to be heard.”

On Thursday, Dest will join a panel of prosecutors, public defenders and judges in a discussion about the 2012 opinion as they hope to reach a compromise in the face of proposed change, he said.

South Carolina is one of the few states in the nation that gives solicitors power to control the docket. In other states, the court decides when cases will be called and in what order.

Those states, Brackett said, are already acclimated to work that way and resources have the necessary funding and support staff to adapt.

Scheduling a week of court, he said, “is a real logistical” science that, given the change, would require staff York County doesn’t have right now to ensure prosecutors, defense attorneys, witnesses, victims are “in the right place at the right time.”

Each Tuesday, Brackett gathers with the 16 York County solicitors to look at which judges will be sitting on the bench in a given week. They plan which cases will go on what day of the week and before which judge. They also discuss possible scheduling conflicts or last-minute problems with defendants, defense attorneys, victims or witnesses.

“We literally assimilate all this information from these 15, 16 people and all the variables from their various cases and figure out how to plug it all in,” he said. “If we’re not the ones that do it, and I’m by no means married to us being the ones to do it…somebody has to be the person who assimilates all that information and figures out how to make court work for any given” term.

“And, if it’s not us, then who’s it going to be?”

Some circuits have given those responsibilities to clerks and administrative staff, he said. They’ve had the money to do it.

“If you all of a sudden take this massive responsibility that’s currently done by 15 or 16 attorneys in my office working together and say, ‘hey, here you go,’…that money has to be found somewhere and not just for us, but across the state for every county because every county has its own criminal caseload and docket,” he said.

There is no indication when a new system might go into effect, but lawmakers working with the Chief Justice expect a resolution to develop soon, said former 16th Circuit Solicitor and now state representative Tommy Pope, part of a working committee studying the issue.

During a late July meeting, Toal seemed to be moving towards a system that would give solicitors initial control over scheduling cases, but hand them over to judges for docketing if they remain open for more than a year, Pope said.

York County would not be affected too much, Pope said, since officials years ago adopted differentiated case management, a cooperative between solicitors, defense attorneys and law enforcement that places certain charges on separate timeline tracks for disposition in court.

Part of the difficulty in considering the change, Pope said, is that “the judges aren’t really equipped to do it unless they have special docketing clerks,” like in Greenville County.

Those without those clerks would suffer a “a greater burden” as they travel the state to preside in court and also schedule cases. If judges can’t do it, Pope said, the responsibility will fall on the shoulders of clerks “who don’t have the resources.”

Debating the change is a delicate balance, he said. “If you’re a defendant and not guilty, you want a speedy trial. If you’re a victim, you want your case to be heard while witnesses are still around. It’s in the public’s interest for an efficient, moving docket.”

Some circuits in the state suffer from an overwhelmed docket and little resources.

The Sixth Circuit, which covers Chester, Lancaster and Fairfield counties, disposed of 29 percent, 3,139 of 8,628 of its cases, last year. By the end of June this year, the circuit had 5,325 cases still pending.

Sixth Circuit Solicitor Doug Barfield could not be reached for comment.

To battle the backlog, Pope suggests overwhelmed circuits prioritize cases by offense, not chronology.

“You can’t go ‘oldest case to new’ on everything,” he said. “An old, simple case can hold back a newer, more complicated case.”

Brackett, also a member of the study committee, said he is comfortable with judges taking cases over if they’re pending for more than 18 months. About only 5 percent of cases in York County meet that criteria, he said.

Still, he’s unsure how “change is going to possibly make us any better,” he said.

“I don’t know how we can afford to build this new layer of administration within the criminal justice system,” he said. “I think there are places where the money would be better spent. I would rather see it spent on more prosecutors and public defenders than this new administrative bureaucracy apparatus that now has to be conjured up to learn this job.”

Jonathan McFadden 803-329-4082

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