Government doesn’t have much power to create, but government has nearly unlimited power to destroy – checked only by our citizens’ desire to stand up for the Constitution. Government has the ability to destroy the reputations of good people by loud investigations and media headlines.
Since the establishment of our Republic, the United States and South Carolina have long recognized that citizens are presumed innocent until proven guilty. We provide safeguards so an accusation in and of itself is not a conviction and does not ruin the life of the accused. We provide for bonds, speedy trials, and for grand jury proceedings to investigate “allegations” in secret.
Playing out in the press today is a prime example of why grand jury investigations are supposed to be secret. In the case of Attorney General Alan Wilson v. House Speaker Bobby Harrell, the origin of the story was an ethics “allegation” and press release by the S.C. Policy Council against Harrell. Next was the impaneling of the secret grand jury and a press release announcing the same. I am on record that substantive criminal proceedings should never begin with a press release.
Our statewide grand jury is a powerful tool for our prosecutors. Our Supreme Court noted as much just nine years ago:
“The stringent secrecy provisions contained in the (Grand Jury) Act mirror the long and uniformly held opinion by courts nationwide that secrecy of a grand jury proceeding is desirable and necessary. As the United States Supreme Court has explained in a case involving the federal grand jury system, ‘… by preserving the secrecy of the proceedings, we assure that a person who is accused but exonerated by the grand jury will not be held up to public ridicule.’” (Evans v. South Carolina, 2005).
When any prosecutor releases information to the public that someone will be investigated by the grand jury – someone who is still presumed innocent until proven guilty – there will inevitably be extensive damage done to that person’s reputation, even before the investigation begins. When the Attorney General made the secret grand jury proceedings public, Harrell had every right to complain.
For those familiar with the operation of grand juries, it came as no surprise when Chief Justice Jean Toal said this week that Wilson’s press release on the eve of empaneling the grand jury was “unprecedented.” She went on to say, “I’ve never heard of having a news release to announce you’re going to submit something to the grand jury, ever.”
The dispute between Speaker Harrell and General Wilson that played out before the state Supreme Court last week ultimately isn’t about the policy council, or petty political disagreements. The case has now become a test of our system. Do we as citizens still value the idea that a person should be presumed innocent, and afforded the protections appropriate for innocent men, or do we place a higher value on entertaining headlines and political gossip?
When the circuit court ruled in favor of Harrell last month, it didn’t strip the attorney general of any powers, and no one has suggested the state’s top prosecutor can’t investigate crimes. The court even offered to leave the grand jury in place if it wasn’t investigating just an “ethics” complaint. The judge’s ruling stated, “Despite multiple requests, the attorney general has failed to offer or present to the court any evidence or allegations which are criminal in nature.” During the Supreme Court arguments, Beatty asked for the same thing, saying: “Didn’t you have something that you could give the impaneling judge?”
The court concluded that the attorney general’s previous opinions were correct, ethics matters must be sent to the appropriate ethics committee. The law is clear: Ethics complaints must first go before the appropriate ethics committee or commission. If the committee’s investigation uncovers any criminal activity, the law requires them to forward that evidence to the attorney general.
It wasn’t but a few short months ago when Wilson issued a press release and said his office did not have jurisdiction over the complaint against Harrell and the proper place for the matter was the House Ethics Committee.
I am confident that our Supreme Court recognizes the incredible constitutional issues before them and the danger inherent in allowing any branch of our government to have unlimited, unchecked power. Hopefully, they will also take this opportunity to define “secret” so everyone will know when a press release about one is appropriate.
Bruce Bannister, a Greenville Republican, is the majority leader of the S.C. House Republican Caucus.