The Hit Dog Hollers

When a judge rails against the evils of crime, the reaction ranges from applause to re-election.  When a judge rails against the evils of prosecutorial misconduct, there is a very different reaction.  Via the Post and Courier:

Beatty, elected to the Supreme Court in 2007, told the audience of prosecutors they had “been getting away with too much for too long” and the high court will no longer turn a blind eye to unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence.

He added that “you better follow the rules or we are coming after you and will make an example,” according a summary of his comments.

“The pendulum has been swinging in the wrong direction for too long and now it’s going in the other direction,” the summary quotes him as saying. “Your bar licenses will be in jeopardy. We will take your license.”

Oh my.  That Beatty would be South Carolina Supreme Court Justice Donald Beatty.  And he was pissed.  And did those in charge of prosecutions, called Solicitors down there, bow their heads in shame, swear to do better and respect their oaths of office, and promise to never again engage in such evils? Why no. No, they did not.

Thirteen of the state’s 16 solicitors have signed onto a request to have Beatty barred from considering their cases or ruling on grievances against prosecutors. They contend he demonstrated a clear bias against prosecutors in his remarks at a September solicitors’ gathering in Myrtle Beach and cannot be counted upon to be impartial in his rulings.

[9th Circuit Solicitor Scarlett] Wilson led the charge with an Oct. 29 letter asking for the state attorney general’s help in getting Beatty recused from her cases. Others soon followed suit, including 1st Circuit Solicitor David Pascoe, who stated that Beatty appeared to have “an extreme bias against prosecutors and cannot be objective.”

This raises not only a constitutional clash, between the executive branch and the judiciary, where the former seeks to dictate the workings of the latter, but a rather curious defense of practices.  Justice Beatty’s complaint is about “unethical conduct,” and more particularly, “witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence.”

Are the solicitors contending that the judge’s remarks impair their right to engage in such practices?  Do they defend such practices?  Do they admit such practices happen right under their noses and they turn a blind eye?  Are they entitled to do so? After all, the solicitors are there to serve the People of the Great State of South Carolina, and shouldn’t they use every weapon in their arsenal to get whoever it is they decide to get? Oops. I mean “git.”

“For too long we have looked the other way but that’s over. We are not just going to overturn convictions; we are going to take your licenses,” Beatty told the group.

Ironically, as much as this smarts the delicate sensibilities of the solicitors, this is more a condemnation of the judiciary than anything else.  And indeed, it is the very condemnation that so many, myself included, have leveled with regularity.

By no means does this excuse the abuse of authority by prosecutors, although the adage “power corrupts” comes immediately to mind.  But it’s the not-too-benign neglect of the courts that both allows it to happen and emboldens prosecutors to persist in their abuse of power.

What Justice Beatty is confessing is that he, a Supreme Court justice, knew of the abuse and made a deliberate decision to let it slide.  What Justice Beatty is saying now is that he’s had enough and won’t let it slide any longer.

On the one hand, it’s a remarkably bold move to be so forthright in his admission of wrongdoing, and his stance should be appreciated as better late than never.  On the other hand, what of the human beings wronged?  What of the integrity of the system he swore to protect?  And if there was a third hand, what of the other justices? Did they realize it as well? Were they so biased and myopic as to not realize this was happening in front of them?  Were they good with it?

As one would expect, defense lawyers rallied to Justice Beatty’s support. But then, criminal defense lawyers are always easily dismissed as self-serving, while prosecutors are paragons of virtue who only think of the public good.  And then there are the politicians.

State Sen. Larry Martin, a Pickens Republican who chairs the Judiciary Committee, said he has known Beatty a long time and served with him in the legislature, always considering him to be a thoughtful and restrained individual. But Martin said he was stunned by Beatty’s comments at the conference, which he described as inappropriate and intimidating. “It really upset a lot of folks,” he said.

Martin said there may be isolated cases of prosecutorial misconduct in the state, but “I don’t believe it is a major problem.”

Certainly, upsetting a lot of folks is never something a politician wants to see happening. It’s not good for business as usual.  And the solicitors are clearly very upset.  But as only the South Carolina flavor of the criminal defense bar can put it:

“As the saying goes, a hit dog will holler,” the South Carolina Association of Criminal Defense Lawyers said.

And if there were no more “isolated cases of prosecutorial misconduct,” then it would clearly not be a major problem.  The louder that hit dog hollers, the more of a major problem it must be.



24 comments on “The Hit Dog Hollers

  1. Mike Paar

    File this alongside the story of the Dallas police chief, and the dozens of similar stories that you’ve brought to our attention this year and it would certainly seem that evil is winning the battle.

    I recall a 3rd rate movie from years ago in which a man played by Canadian wrestler Roddy Piper found a pair of sunglasses that allowed him to see aliens who had taken the form of humans and were in control of all industries. At least the aliens in the movie tried to hide their true nature and desires. Whereas corrupt police and prosecutors are absolutely blatant with their desires to frame and protect their own.

    1. SHG Post author

      Lest you blame me, you make a terrible error in reason. The posts here, and the articles you read elsewhere, may appear to be anecdotal evidence that evil is winning, but these are the outlier, the unusual stories that stand apart. I don’t write about things that happen in the ordinary course of things and work out fine. There is no reason to write about them. It’s dog bites man, nothing to see here.

      Never forget that you are only seeing the exceptions, not the rule. There may be far too many exceptions, and the exceptions are certainly in need of fixing. But they remain the exceptions.

    2. TomH

      I have come here to chew bubblegum and sanction prosecutors – and I am aaalll out of bubblegum.

      Apologies to Roddy Piper as Nada in “They Live”, the movie referred to above. Which is, by the way, at least a second rate movie, a classic and a formative moment from my childhood.

      1. Mike Paar

        It would appear that at least a few of us have come upon a pair of those sunglasses and are able to clearly see what is happening in this country. Others however are completely oblivious and fail to see it even when we force a pair of sunglasses on them like Nada did with his pal in the 20-minute fight scene.

        Further, I disagree wholeheartedly with SHG that incidents such as this are the exception. Indeed, I believe that the majority of incidents are successfully covered up, and that the thousands that we hear about is only the tip of the iceberg. Think about it, who among us is in a better position to get away with crimes than those who are responsible for investigating crimes and making arrests? The fact that any ever come to light is nothing short of miraculous in the first place, and with sociopaths like the police chief in Dallas crafting ever more nefarious ways to cover police crimes, there will be fewer and fewer of those miracles in the future. And just as happened in the movie, there will come a time when those of us who see them for what they are will become their targets. They will seek to shut down sites like this and others that expose their deeds.

        Wait until someone attacks a police department or district attorney office and they link them and their actions to a “cop-hater” site. That will provide the excuse that these sites incite violence and threaten national security. Then they will begin shutting them down. Failing that, then they will start disciplining in-house, like many police departments already do. That way they can keep the incidents from ever being reported by the media. They’ll say “trust us, we’re dealing with it”. It’s coming. I give it five-years at most. Watch and see…

        1. SHG Post author

          I don’t disagree with you that many are covered-up, and many never see the light of day because they don’t end up in an arrest or injury. But they are still the exception. Just as most criminal cases don’t involve prosecutorial misconduct, most police interactions don’t involve violation of anyone’s rights. That said, it by no means minimizes the fact that any misconduct or constitutional violations are wrong, and even though they may be exception, there are still a great many of them.

          1. TGM

            As far as the frequency of misconduct goes, I think there’s two issues to consider. The first is that it’s difficult to get solid data on prosecutorial misconduct because it’s difficult to establish in court unless you catch the prosecutor red-handed. D.A.’s don’t like it when people go snooping around in their offices for evidence of wrong-doing. On the civil side, cases like McCleskey and Armstrong make it virtually impossible to get a court to order discovery of the prosecutor’s case files to, say, establish unlawful racial bias by the prosecutor’s office. Absolute Immunity also stops most cases before they start, so we don’t get nearly as much data in this area as we’d like.

            The second thing to remember is that the biggest problem comes most often in the accountability phase. While the majority of police and prosecutors are at least *trying* to do an honest job, the ones who aren’t doing an honest job (or are simply incompetent) frequently escape any form of meaningful accountability. The Ken Anderson case in Texas is a good example. According to Mark Godsey from the Innocence Project, it was the “The first time ever that a prosecutor went to jail for wrongfully convicting an innocent man.” The 2010 Ridolfi-Possley study of California prosecutors also demonstrates that ethical discipline is wanting as well (<1% discipline rate).

            That being said: while I have plenty of anecdotes about prosecutor's getting away with murder, I also have a good friend who works in the Bronx DA's office who regularly moves the court to dismiss charges if he thinks there's problems with the evidence. The problems in that office seem to be more with the number of cases that the line prosecutors have, rather than a critical mass of bad faith. So not every office is rotten. We might even confidently say the majority of them aren't. It's just that the ones that are seem to rarely get cracked open and detoxed.

            1. SHG Post author

              Just out of curiosity, you do realize that many of the things you write in the comments (like the Ken Anderson sentence, for example) have already been the subject of posts here and that it’s not exactly new information, right? If it’s already been discussed here, it’s really not necessary for you to “explain” them to people in the comments to my blog.

              And your Bx ADA anecdote, bear in mind that all lawyers have anecdotes. Best to save them for your own blog, as my blawg isn’t the place for you to tell your war stories. And, more importantly, kid lawyer war stories aren’t particularly interesting to older lawyers, if you catch my drift.

          2. Mike Paar

            Did you not care to address my third paragraph? Perhaps a bit too far-fetched for you to even think about? Tinfoil hat stuff? To me, it’s just the logical next move in the game of Totalitarian Government. They have got to quell dissent somehow.

            It was tried already, you know? Up in Washington State by a female sheriff. She was convinced that the deaths of four police officers in Lakewood, Washington in 2009 could have been prevented if she had had a task force that investigated anyone who posted negative comments or otherwise disparaged law enforcement. The bill providing funding for her task force died in committee. But one similar to it will be passed sooner or later.

            1. SHG Post author

              There have been many efforts to silence dissent on the internet, but the internet has proven resilient and refuses to be silenced. Other than that, it’s far too speculative to discuss.

    3. NodAndSmile

      “They Live” third-rate?! Fie!

      But I’ve already been scooped on the paraphrase 🙁

      “I’m all out of gum” end sad whisper

  2. rylen

    As a South Carolina citizen, what can I do to support this? I’ll send Beatty a letter and let my state reps know I approve. Anything else?

      1. Brett Middleton

        Keen thinking! The Lookout Mountain Judicial District is not so very far from SC, and would be a marvelous haven against rogue prosecutors and their enablers behind the bench.

  3. TGM

    Always fascinating how fast prosecutors lock step to protect themselves whenever they might actually have to be held accountable for their mistakes. I’m sure Scott remembers the firestorm over Marvin Schechter’s letter to the Criminal Section of the New York Bar about Brady violations. Or how about the way prosecutors of yesteryear bandied together to oppose the petitioners in McCleskey v. Kemp? Brennan’s words in McCleskey still ring true today: it’s like they’re motivated by a “fear of too much justice”—or in this case, a fear of too much justice for themselves.

  4. JJR

    The Judge is absolutely correct. SC Solicitors have far too much control of our criminal justice system. In SC, if charged, you are guilty until the Solicitor decides otherwise. If charged in this state, you’re forced to accept a plea unless you have extremely deep pockets to pay for a protracted defense, made so by the Solicitors’ time table. The Solicitor also decides when children are tried as adults. In most states, this power is in the hands on a Judge. The Judge is spot-on with his comments. We need more judges like Beatty, willing to stand-up to injustice and protect personal liberties.

  5. Johnny Gardner

    Justice Beatty made these comments at the solicitor’s conference, not to the public. The solicitors, or some of them, made it public.

  6. NodAndSmile

    I don’t understand the issue. Surely it is as ‘they’ always say: If you’re not doing anything wrong then you have nothing to fear.

    The reaction makes it found a very high percentage of prosecutors have something to fear…

    1. Brett Middleton

      Would a conscientious employee have reason to feel annoyed if a new boss called a company meeting and announced that he’d be watching everyone like a hawk because too many employees were slacking off? Even an employee who wasn’t doing anything wrong might fear that this crusader would find some excuse to call him on the carpet.

      I’m not particularly standing up for prosecutors here. I think the lack of accountability creates enough of a moral hazard that even the best must be tempted to cut “minor” corners here and there.

      1. SHG Post author

        It’s all according to what job the new employee is doing. If a fast food server, there are one set of expectations. If a brain surgeon, there’s another. If a prosecutor, yet another. Positions with great power carry great responsibility. It’s part of the deal.

  7. Pingback: "The pendulum has been swinging in the wrong direction for too long . . ." - Trial Theory - Myrtle Beach criminal defense lawyer Bobby G. Frederick

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