Bobby Harrell v. Alan Wilson, No Clear Advantage

By Paul Gable

Neither side seemed to come away with a clear advantage from yesterday’s S.C. Supreme Court arguments to determine whether the state grand jury investigating possible criminal ethics violations by S.C. House Speaker Bobby Harrell should continue.

Last month, S.C. Circuit Court Judge Casey Manning ruled that a state grand jury investigation into alleged ethics violations by Harrell should be terminated.

S.C. Attorney General Alan Wilson appealed to the Supreme Court to overturn Manning’s ruling and allow the investigation to continue, leading to yesterday’s hearing.

Harrell’s attorney Robert Stepp argued that all violations of the ethics law are civil in nature and a referral from the S.C. Ethics Commission or House and Senate Ethics Committees was required before the Attorney General may begin a criminal investigation.

Stepp argued “the entire case emanates from a civil complaint” by a citizen (Ashley Landess, President of the S.C. Policy Council) and that “there was no evidence of criminal activity” in the Landess complaint that would allow Wilson to open a criminal investigation.

Assistant Deputy Attorney General Creighton Waters argued that violations of the Ethics Act can be criminal, dependent upon the “mental state” of the alleged violator – whether it was an accidental mistake or wrong doing or whether the alleged violator was “knowingly trying to take advantage of the rules for personal gain.”

Waters said it was not only the complaint from Landess, but also a 10 month investigation by SLED into the allegations that led Wilson to request impanelment of the state grand jury. Waters said the requirements for impanelment of the state grand jury had been met in the Harrell investigation by the original petition to Manning.

It was not clear in yesterday’s arguments whether the report of the 10 month SLED investigation of Harrell has ever been considered at any level. The report was not part of the court record that the Supreme Court was reviewing at yesterday’s hearing.

Waters argued the “Attorney General, at his discretion, has the ability to pursue criminal violations” of the Ethics Act; the Grand Jury is the statutorily authorized body to investigate public corruption and is “the beginning” of this process and the trial judge (Manning) “treated the investigation as if it had to be justified” in halting it.

Waters said the authority to investigate is very broad; courts are generally reluctant to engage in too much oversight of a grand jury and that Manning had placed way too high a burden (of proof) for the grand jury investigation to continue.

Two cases mentioned frequently in yesterday’s arguments and questions by the justices were State v. Peake and State v. Thrift.

In State v. Peake, it was affirmed that the decision to pursue criminal charges for the alleged violation of the (state) Act is vested solely in the Attorney General. Additionally, Peake held that to include another state agency in the decision to pursue criminal charges would “create a constitutional infirmity”.

In State v. Thrift, the S.C. Supreme Court held that, “The absence of a complaint to the Ethics Commission will never operate as a limitation upon the State’s independent right to initiate a criminal prosecution.”

There is no timetable for the court to issue its ruling.

After the hearing, Wilson declined comment.

Harrell was quoted in various media outlets as saying, “What we just witnessed in there was the court said Judge Manning had access to all of this information including the SLED report and made the determination that without a doubt there wasn’t anything criminal that he had seen.”

I’m not sure Harrell watched the same proceeding I did.

 

 

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