ACLU: Equal justice for poor remains unfulfilled in SC municipal courts

tbarton@islandpacket.comOctober 5, 2013 


Fifty years after the U.S. Supreme Court's landmark right-to-counsel decision, poor residents in many places in South Carolina -- including Beaufort County -- still are tried without a lawyer.

Funding shortages, lack of manpower and ambiguity in state law has led to an inconsistent system for providing legal representation to low-income individuals in municipal courts, according to South Carolina civil liberties experts and court officials.

As a result, thousands of defendants are often not informed of their constitutional right to counsel or are coerced into waiving that right to avoid having to spend additional time in jail, according to the American Civil Liberties Union of South Carolina.

In Beaufort County, an ongoing disagreement between municipalities and the 14th Judicial Circuit Public Defender has forced some who are unable to hire an attorney to defend themselves, despite state and federal constitutional protections.

"The promise of equal justice for the poor remains unfulfilled due to systemic deficiencies, lack of funding and excessive caseloads," wrote ACLU legal director Susan Dunn in a March 18 letter urging state and municipal court officials to resolve the issue.

Other states face similar problems providing lawyers to poor defendants in lower-level courts that handle misdemeanor cases. But the problem seems worse in South Carolina, according to Seattle University School of Law professor Robert C. Boruchowitz, director of The Defender Initiative at the Korematsu Center for Law and Equality.

"You have entire courts that do not have public defenders regularly available," Boruchowitz said.

A big reason is the state court system's unmanageable case load, according to Boruchowitz.

"The case load in South Carolina is out of control far more than it needs to be largely because of cases involving charges that don't need to be criminalized, such as littering, not wearing a seat belt, having an open container of alcohol," he said. "For example, there are a lot of traffic violations that are criminalized that aren't criminalized in other states."

More than 568,000 cases were filed in S.C. municipal courts for misdemeanor offenses for the fiscal year ending June 30, 2012, according to data from the S.C. Judicial Department -- surpassing states with larger populations, including Washington. That equates to about one criminal filing for every eight people in the state.

Typical cases heard by municipal court judges include drunk driving, traffic offenses, shoplifting, assault, domestic violence, vandalism, theft and disorderly conduct. The court also disposes of parking violations and municipal code violations.

CLARITY SOUGHT IN LAW Of the more than 300 municipal courts in South Carolina, only three -- Rock Hill, North Charleston and Charleston -- provide public defenders, according to state court officials.

Both state and the U.S. Supreme court rulings require that anyone living below federal poverty guidelines who is charged with an offense that could result in jail time, including a misdemeanor, be provided a lawyer.

But in South Carolina, the law is unclear as to who should provide that service -- the County Public Defender's Office or the municipality -- officials say.

Lawmakers in 2007 adopted a unified, statewide public defender system, which did away with a 30-year-old, disparate, countywide system of nonprofit agencies staffed by part-time attorneys.

The law created public defender positions in each of the 16 judicial circuits, paid for with state and county funds. Public defenders get pay and benefits on par with that of prosecutors, and answer to the S.C. Commission on Indigent Defense.

Public defenders, however, say they are not required to represent defendants in municipal courts, which are separate from the court system created by the legislature. Municipal courts were created by towns and cities.

As a result, it's unclear whether indigent defendants in municipal court are entitled to a public defender, according to T. Patton Adams, commission executive director. The ambiguity has led to a five-year spat between Beaufort County's five municipal courts and 14th Circuit Public Defender Gene Hood.

GAP IN THE SYSTEM Until 2007-08, public defenders were available in municipal courts on Hilton Head Island and in Beaufort, Bluffton, Port Royal and Yemasee. But with the creation of the unified court system in 2007, Hood said his office lost the manpower and money to provide public defenders in municipal courts in the five-county circuit, where case loads have grown.

Beaufort County has seven public defenders. Each handles an average of more than 500 cases a year in courts where they are required to represent the poor -- general sessions, magistrate, juvenile and family courts -- according to Hood.

"With the case load they're carrying in Beaufort County, they can barely cover the courts that are funded through the state and county," Adams said.

In addition, the public defender's malpractice insurance does not cover municipal courts, Hood said.

"I'd have to hire two more attorneys at an annual cost of more than $130,000 to handle the five municipal courts, and I'm operating on a shoestring budget around $1.5 million for the entire circuit," Hood said.

Instead, municipalities should hire private attorneys for poor defendants, Hood said.

Municipalities pay for other court personnel, he said. "If it's important enough to prosecute, it should be important enough to defend," he said.

Municipalities contend they already pay the county and state for public defenders through county taxes and money from court fines sent to the Commission on Indigent Defense, which is distributed to public defenders' offices.

"Look, we pay for indigent defense through state assessments and our citizens pay county tax dollars, which includes money for indigent defense," said city of Beaufort attorney Bill Harvey. "Why should there be a difference in the function of the Office of the Public Defender dependent upon whether someone is arrested within the city or outside city limits? That doesn't make sense to me."

Town of Hilton Head staff attorney Brian Hulbert echoed the sentiment.

The money from the county, however, only covers costs for services to county courts, not municipal courts, Hood contends. And the money from court fines is too meager to pay for indigent defense in municipal courts, Adams said.

The S.C. Attorney General's Office in a 2009 opinion said public defenders should represent eligible defendants in municipal court. But the opinion recognized that shortages of money and manpower sometimes made that impossible. In those situations, private attorneys should be appointed, according to the opinion, which was not legally binding,

Municipal judges, however, lack the authority to appoint private attorneys for indigent defendants. Only circuit judges can do that, according to Harvey and Hulbert.

Hulbert said 14th Circuit Judge Carmen Mullen has declined to do so, arguing attorneys are already overworked at the circuit court level and are needed to handle felony cases.

Attempts to reach Mullen were unsuccessful.


Some municipal judges have tried to work around the law largely by taking the possibility of jail off the table for defendants, according to court officials and records.

In cases in which that can't be done, some municipalities arrange with nearby communities to have that city or town's prosecutor defend those eligible.

Bluffton town attorney Terry Finger said the town has a such an arrangement with Beaufort, but has not had to use it.

"It hasn't come up, to be perfectly blunt," said Finger, who also has served as the judge in Hilton Head's municipal court. "I'm unaware of anyone who has requested a public defender ... and the vast majority of cases do not involve the likelihood of incarceration."

There have been cases, though, in which higher courts ruled that defendants who didn't have a lawyer in municipal court didn't get a fair trial. The case of former Hilton Head resident Brian MacDermant is an example.

MacDermant was arrested July 3, 2011, and briefly jailed for allegedly threatening former Hilton Head Island High School football coach Tim Singleton and his son.

MacDermant was convicted Feb. 13, 2012, of second-degree harassment. Unemployed at the time, he asked for a public defender but was denied legal representation by the Beaufort County Public Defender's Office, according to court records. He defended himself in a jury trial before Hilton Head Municipal Judge Maureen Coffey.

MacDermant said he "could not make anywhere near an adequate defense due to lack of skill in questioning witnesses, making motions and speaking in the courtroom."

"I am a shy, introverted person, could not think on my feet," MacDermant said. "The scales of justice were extremely unbalanced. I had very little chance for the truth to prevail, unless represented by an attorney."

Coffey sentenced him to 30 days in jail unless he completed 30 hours of counseling, believing she was within her right to do so since the jail time was held in abeyance, according to court records.

MacDermant appealed with the help of the ACLU and Boruchowitz, and his conviction was overturned by Special Circuit Judge Marvin Dukes. Dukes ruled Coffey had erred in imposing a sentence that included the possibility of jail time.

Dukes sent the case back to municipal court for a retrial, ruling that MacDermant is to be represented by either a public defender or an appointed private attorney. If MacDermant doesn't get a lawyer and is found guilty, his sentence cannot include the possibility of jail, Dukes ordered.

MacDermant's case is pending before the municipal court.

"The ACLU of South Carolina in recent years has received multiple complaints regarding the failure of some magistrate and municipal courts to provide any form of indigent defense, and the inadequacy of indigent representation when some form of legal counsel was provided," Dunn wrote in her letter urging a solution to the problem. "Without meaningful and enforceable standards to ensure the effective assistance of counsel to the indigent ... (that) undermines the fairness and reliability of the criminal justice system, and subjects state and local governments to lawsuits."

Follow reporter Tom Barton at

Related content: S.C. Commission of Indigent Defense SC Supreme Court holds off on docket changes as lawmakers debate: Feb. 5, 2013

The Right to Counsel -- Seattle University School of Law

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