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.