Who can set trial dates? SC legislators dive into debate on judges vs. prosecutors

astice@islandpacket.comFebruary 5, 2013 

Prosecutors would regain control of court calendars under a bill before the state's General Assembly.

Lawmakers on Tuesday got to work on legislation that, if passed, would contradict a S.C. Supreme Court ruling that judges should set the schedule.

The bill, sponsored by dozens of lawmakers -- many lawyers and a few former prosecutors among them -- removes the word "exclusively" from the state statute governing prosecutors' control of the case-management system. It also stipulates that a prosecutor's management of the docket should in no way interfere with the rights of a person on trial.

Local prosecutors have long had the authority to decide when to call cases to court. However, in November the Supreme Court ruled that state law giving local solicitors that power was unconstitutional, siding with public defenders who said the law violates the separation of powers by giving judicial responsibility to prosecutors, who belong to the executive branch.

The court also issued an order that was to take effect this week that puts judges in control of case dockets. However, after state prosecutors challenged the opinion, the Supreme Court opted instead to form a study panel.

Solicitor Duffie Stone of the 14th Judicial Circuit, which includes Beaufort County, said his office continues to do the "hard work" of setting the docket.

David Pascoe, head of the state Solicitor's Association, said he is working with the General Assembly on the new bill to guarantee that prosecutors continue to have scheduling power. He said he believes it is the legislature's job to come up with a good case-management system "or at least give us some stability."

"It's also important to note that there will be changes and amendments that will improve the docketing system in this state," Pascoe said.

South Carolina is the only state that gives prosecutors control of scheduling by law, but two other states also involve prosecutors in docket management, according to the National Center for State Courts. In North Carolina, district attorneys schedule criminal cases, but the court system has ultimate authority over trial calendars. Maryland prosecutors set trial dates, but a county's chief judge can make changes.

Recent legislative efforts in both states to wrest that control from prosecutors have failed. Many other states previously had such a practice, according to NCSC, but opted decades ago to shift control from prosecutors to improve efficiency.

"For the most part, the practice has been done away with," NCSC analyst Bill Raftery said. "Most states have already had this fight, but they had it 30 years ago."

In many states, Raftery said, prosecutors work with judges on scheduling. Pascoe said that has occurred throughout South Carolina.

Many public defenders hailed the Supreme Court's order, believing it will lead to speedier trials.

Beaufort County public defender Gene Hood said he is less concerned that a new law would allow prosecutors to set the docket again, and more concerned it would require additional paperwork without providing more money to process it.

"We don't have a lot of problems with delays in the 14th Circuit," Hood said. "Generally, we can negotiate things."

However, criminal defense lawyer Don Colongeli of Beaufort County said he believes prosecutors have too much control. He said prosecutors typically first try cases they know they can win, while other defendants languish in jail awaiting trial.

"The only thing defense lawyers can do is a speedy-trial motion," Colongeli said. "But for that, there's nothing I can do to speed up justice on a particular case."

The Associated Press contributed to this report.

Related content

  1. Solicitors oppose Supreme Court docket ruling, Dec. 24, 2012
  2. Ruling gives power to judges, not solicitors, to set court dates in SC, Dec. 4, 2012

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