When the going gets tough, the tough get going.

— Joseph P. Kennedy (1888-1969)

When the going gets tough, we waive preliminary hearings.

— Orrie E. West, Public Defender for Horry County, South Carolina

Gideon is outraged.  Bobby Frederick is disgusted.  I’m bewildered.

In Horry County, the public defender’s office refuses to appear at any preliminary hearings, and the magistrates refuse to allow the public defender clients to go forward without their attorneys – the two together amounts to a systemic denial of due process for a majority of criminal defendants in Horry County.

One at a time, the judge identifies those who have applied for a public defender – it quickly becomes clear that none of these individuals have spoken to their attorney, although they have filed their application for a public defender it is still early in their case and many do not even know their attorney’s name. As each person identifies his or herself, the judge explains that the public defender does not do preliminary hearings and therefore that person’s hearing is waived. One at a time, they walk out of the courtroom, confused and angry. Towards the beginning, two of them try to argue with the judge, explaining that they are prepared to go forward without their lawyer, but the judge refuses, explaining that if their attorney says their hearing is waived then it is waived. Have a nice day.

The public defender has a policy.  The court knows about this policy.  The magistrate courteously informs the defendants of the policy.  There will be no preliminary hearing for any defendant represented by the Horry County public defender.  And that’s that.

 There is no downside to preliminary hearings – no harm comes to the defendant, they cannot go to jail if they lose, their charges cannot be increased if they lose.

While dismissal of charges may be a long shot, though not necessarily futile, there are still benefits to be gained.

When the case is not dismissed, or if it is dismissed and the solicitor indicts it and revives the charges, the benefit is still obvious. We now have a transcript of the officer’s testimony, early in the case, as to what the evidence will show. The officer is now locked into that testimony and the transcript can provide invaluable impeachment material for trial if the officer tries to change the story when trial begins. It also gives us a picture of who the officer is, how they will testify, will they lie on the stand, are they evasive, or are they straight up and honest. All of which is invaluable if this case goes to trial.

In any jurisdiction, there are aspects of the process that the courts don’t take particularly seriously.  In New York City, it’s discovery, a near worthless joke where the prosecution produces a Voluntary Disclosure Form that may or may not be accurate (with no penalty for material error or omission), where the defense gets as much, or as little, as the prosecutor deems to provide.  Judges routinely ignore any effort to gain greater disclosure, statute notwithstanding.

Exculpatory evidence is routinely ignored everywhere, which is why I call Brady the biggest joke every played by William O. Douglas.

But what Bobby describes is different.  As he says, it’s a systemic denial. It immediately conjures up images of Amy Bach’s Ordinary Injustice, of a system sliding into the abyss without any of its players either noticing or caring, and taking the systemic failure as just the way things are done.

An advocate of the public defender’s mantra, we are real lawyers, Gideon ponders:

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights.

Gideon assumes, and is likely correct, that the policy in Horry County is the product of funding shortfalls, the allocation of scarce resources rather than the wholesale lack of caring by the local public defender for the welfare of their clients.  In furtherance, Gideon is willing to cut the PDs a break and allow them a waiver of a preliminary hearing when there’s no particular reason to believe that it’s going to produce anything significant.  Gideon is more forgiving than Bobby in this regard.

While I share the outrage and disgust, what bewilders me is that the public defender, having made a deliberate decision for forego a critical stage of the proceedings, which doesn’t seem to bother the judge much, and certainly won’t cause any sleepless night in the legislature, hasn’t brought about the protests of the organized criminal defense bar, either in South Carolina or nationally.

Bobby G. Frederick has shown the moxie to call out the Horry County public defender and magistrate for this systemic failure.  What of the South Carolina Association of Criminal Defense Lawyers?

Mission Statement “You can only protect liberties in this world by protecting the other man’s freedom.” Clarence Darrow The South Carolina Association of Criminal Defense Lawyers is devoted to protecting the liberty of the citizens of South Carolina by fighting to ensure justice and due process for all persons accused of any criminal act. We promote excellence and integrity in the practice of criminal law by providing the highest quality criminal law seminars to those who defend the accused. We speak with a united voice in challenging legislation directed to limiting or eliminating the rights of the individual and we labor for laws that preserve equal access to justice for all.

Funny how they can be pretty darned efficient when sending out dues notices and holding gala dinners to hand out awards to their “mandarins.”  And “Liberty’s Last Champion” is busy promoting its CLEs.  Plenty of high-minded ideals that make lawyers feel proud.  Excellence, Champion, all for the price of membership.  It says so on the certificates, so it must be true.

All the while, a poor defendant can’t get a preliminary hearing for trying in Horry County.  And if it wasn’t for Bobby Frederick, nobody would know.  And nobody would care.