South Carolina AG Joins Calls For The Recusal Of Supreme Court Justice For Calling For Punishment of Prosecutors For Abuses

Alans-Headshots-028-150x1501134photo1There is a disturbing controversy building in South Carolina where South Carolina’s attorney general has joined calls for a state supreme court justice to recuse himself from criminal cases after Donald Beatty spoke out against prosecutorial abuse — a continuing if not growing problem across the country that we have discussed in prior postings (here and here and here and here and here and here and here). For a prior column, click here . Attorney General Alan Wilson says that he will ask for the recusal in a move that seems intended to signal other justices and judges that such criticism of prosecutors will not be tolerated.

Thirteen of the state’s sixteen solicitors called for Beatty to be barred from prosecutorial abuse cases.

Recently, a prosecutor was found to have violated Rule 3.4 © (disobeying an obligation under the rules of a tribunal); Rule 3.5 (communicating ex parte with a juror during the proceedings unless authorized to do so by law or court order); and Rule 8.4(e) (engaging in conduct prejudicial to the administration of justice) after he knowingly put a cousin on a jury, did not disclose the relationship to the court or defense, and repeatedly communicated with the cousin/juror during the trial. Michael O’Brien Nelson’s law license was suspended for 6 months as well as costs imposed by the state supreme court in this opinion.

For the record, I have long opposed judges and justices speaking publicly at many events, particularly Supreme Court justices. However, in light of past comments by our justices, this is pretty tame in comparison. Moreover, there is no complaint from prosecutors about judges publicly promising to hammer criminal defenses, stop “technicalities” from freeing defendants, or curtailing defenses.

In this case, Beatty spoke in September at the South Carolina Solicitors’ Association annual fall conference and reportedly told the group that the supreme court would come after them for–among other things–witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence. He is quoted as saying “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 was speaking about egregious acts of abuse that should result in disbarment but rarely rise to the level of formal discipline for prosecutors. We have been discussing the lack of deterrent of such abuses. Even when convictions are overturned (or innocent people released after years in jail) there is rarely criticism, let alone punishment, for the prosecutors. Beatty was warning that South Carolina was going to stand as tough on prosecutorial abuses and violations as it would on crime itself. While I am not sure what precise words he used, the point itself seems a fair one.

However, Wilson objected to Beatty’s suggested that the Court had “turned a blind eye” to prosecutorial abuses and would now go after licenses when they occurred. Wilson said that such comments are “confrontational and threatening” and added that “for him to leave each prosecutor with the impression that he or she is facing potential disbarment or other judicial sanction cannot help but harm prosecutors’ morale and discourage those who wish to make public service and prosecution their career.” Is that really a basis for recusal? That the promise to combat prosecutorial abuse would “harm prosecutors’ morale and discourage those who wish to make public service and prosecution their career”?

The attack on Beatty would certainly seem to be a warning to other judges (a disproportionate number of which are former prosecutors) that they criticize prosecutors at their own peril. It is also astonishing that the threat to take away licenses for the most serious forms of prosecutorial abuse would be viewed as inhibiting people from becoming prosecutors. That raises more questions about the perceived assumptions or inclinations of such individuals in seeking prosecutorial positions.

What do you think?

22 thoughts on “South Carolina AG Joins Calls For The Recusal Of Supreme Court Justice For Calling For Punishment of Prosecutors For Abuses”

  1. There was a senior prosecutor in Tarrant County Texas who resigned his position. When questioned as to why he resigned no answer was forthcoming. The Distinct Attorney’s Office refused to provide any information. Depending on whom you ask, the resignation was due to a total disregard for the constitutional rights of defendants. This prosecutor thought he was above the law. Later Governor Perry appointed him to be a district judge in Parker County, Texas. This man had more judicial complaints than any judge in Parker County history. The national news even wrote about his unethical conduct. Come election time the citizens of Parker County refused to elect him to the office. What is concerning is how rampant prosecutorial misconduct is raising its ugly head in all 50 states. Over 30 men have been released from Texas prisons due to DNA testing. One prosecutor became a judge while a man sat in prison for 25 years. This prosecutor failed to disclose evidence that supported the man’s innocence. The man lost 25 years of his life, the x-prosecutor was given 10 days for contempt of court and that sentence was suspended.

  2. It’s the era of new fascism – “law enforcers” openly arguing for the right to break the law with impunity and without consequence, and self righteously attacking those who dare hold prosecutors the very standards they allegedly enforce themselves.

    It all makes sense when you are in fourth stage simulacra of civil society.

  3. In my second year of law school I took a class called prosecutor’s clinic or something very similar to it. It was a two semester course, the first was a class taught by an outstanding adjunct professor and the second was a practical where I actually worked as a novice prosecutor in a city court one day per week.

    The class was great. I learned a lot about criminal law, a real practical exposure. However in the practical I learned that prosecutors don’t give a damn about using abusive procedures. I picked a topic which I was exposed to for my mandatory research paper. Although I was not on the law review, my paper was published in a national prosecutors journal. Many of my fellow classmates who were on the law review never got published. So I was real proud of my experience.

    But after graduation, I took a great deal of satisfaction in beating up on prosecutors who lacked a moral background and who lacked discretion in bringing cases which had no business being brought. Far far too many attorneys lack morals. It’s whether you win or not, not whether you give others a fair chance. We have a sizable portion of our imprisoned population who are innocent of the charges brought and we waste a lot of money prosecuting those who ought not be bothered. It’s politics in the court room for sure. This particular city prosecutor office had had a waitress make fools of them on a DUI charge. Thereafter, the office collaborated with the police to try to get even. They never did. Rather the waitress was eventually fired for spitting on the food the attorneys ordered from her.

    The very best criminal defense attorneys are those who were former prosecutors. The very worst prosecutors are those who play politics. In the middle are those who do not care. They just put in their 8 hour day and go home. And if they order out, they had better watch out for what goes into the food!

  4. For Mr. Wilson, esquire: When I think of your con-job here, I can only quote a band from the Seventies: “God save the queen ./ f’ing obscene / fascist regime….”

    Want a beat-down? Look in the mirror, bucko.

  5. If these prosecutors cannot stand the heat then they need to get out of the kitchen.

    Prosecutors sure don’t stop at making public comments about defendants they are seeking to convict, much of which can often be interpreted as self serving to them. I think it is fair warning for those unethical prosecutors who game the system as was described in the article that the South Carolina Supreme Court is no longer going to tolerate abuses of office. The justices have the authority to strip them of their law licenses, some prosecutors should be thankful it hasn’t happened to them yet.

  6. The good ole boy’s club will not stand for criticism. They have a God-given right to be ‘right’ all the time.

  7. The comments were well within bounds. All he said was that they will enforce the LAW. If that is out of bounds for a judge, then there is a lot more wrong with our legal system than can be fixed by any measures other than wholesale mass firings of lawyers in all public positions. In aviation I have no problem with the FAA saying that they will enforce the regs and that they will punish violators. BIG DEAL.

  8. “for him to leave each prosecutor with the impression that he or she is facing potential disbarment or other judicial sanction cannot help but harm prosecutors’ morale and discourage those who wish to make public service and prosecution their career.”

    Think about the underlying logic in this statement for a minute. In my opinion it
    should disqualify Mr. Wilson from holding office because he lacks the logical underpinnings to be a prosecutor. Of course any Prosecutor that flouts the rules and the laws faces punishment. Isn’t the essence of what they are doing in being prosecutors is to go after those who disobey the law? Are they then above the law when they flout the rules?

  9. If you don’t think the brazenness of this response isn’t race driven – at least in part — you haven’t been to South Carolina. I’d like to know the racial composition of the “signing on” solicitors.

  10. Hey there Attorney General Alan Wilson, they are saving a room for you in ‘Alpha House’!

  11. Justice Beatty is helping the system see where corrections need to be made.

    Prosecutors need to back him up on it.

    Don’t resist fundamental American values by resisting what he said.

  12. I agree that judges should not speak publicly about issues that may come before them in the future. However, this is not so egregious that he should recuse himself if such charges are tried in his court. He was speaking of the seriousness of the ethics of prosecutorial misconduct. But overall, it would have been better if he let a surrogate speak those words.

  13. The Judge gave them fair warning. They are being unfair in their response. When abuse by a prosecutor comes before the SC Sup Court the Judge here being accused can open the questioning. If the prosecutor wants to recuse the judge let him file a motion.

    In the meantime, someone should send those prosecutors a link to Google. They need to read about The Judges Trial at Nuremberg following WWII. In that case, prosecutors, judges and lawyers were prosecuted for abuses complained about here by this SC Sup Ct judge.

  14. Gene,

    Yep….. Prosecutorial abuse is rampant in a number of states…. And when you speak out against them…. The judge usually just winces….. Now in Arizona…. I hear they settled the judge and media targeting for about 7 million… Too bad arpio didn’t have to pay out of pocket….

  15. The establishment is getting more brazen and shameless.

    Just came back from PA; every highway is littered with threatening signs saying “DUI – You can’t afford it”.

    Am I to assume that police and prosecutors will recuse themselves from every DUI case?

    The double standard is offensive – but the voters show little outrage.

  16. Perhaps defense attorneys should ask judges to be recused if they have ever convicted a person. Or prosecutors should be recused from a case if they have ever prosecuted a similar crime in the past.
    Hypocrite and not worth of public employment.

  17. They are only “confrontational” and “threatening” comments if you’ve got something to worry about, Wilson.

    Being a prosecutor – just like being a judge – doesn’t make you a god or perfect. Your duty is first to justice. Since you seem to want to place your niche and your career over justice and systemic integrity, maybe law enforcement isn’t the right job for you.

    I hear Booz Allen is hiring.

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