Editorial: Judge should hear Harrell’s effort to boot attorney general in open court

March 17, 2014 

First Day

SC House Speaker Bobby Harrell, R-Charleston

RAINIER EHRHARDT — AP

— WE REALIZE that people fighting criminal charges, or even the possibility of criminal charges, will do anything to defend themselves. But accepting a top leadership position in our state government brings with it certain responsibilities.

So we’re disappointed that House Speaker Bobby Harrell continues to pursue what appear to be slash-and-burn tactics during a State Grand Jury investigation, likely into allegations that he converted campaign funds to his personal use by reimbursing himself for flights across the state and up and down the east coast on his single-engine Cirrus SR22.

These tactics began as soon as Attorney General Alan Wilson and SLED Chief Mark Keel asked for the Grand Jury investigation, with Mr. Harrell demanding that Mr. Wilson release the SLED report on which it was based. He made this demand — and continues to make it — knowing full well that state law prohibits the release of information under Grand Jury consideration. So what his demand does is to suggest to the public that the attorney general is trying to hide something, when in fact he is barred by law from releasing it.

The latest example is his effort to have Mr. Wilson removed as prosecutor — and to have that decision made in private.

The bar is, and should be, extraordinarily high for a judge to remove a prosecutor and replace him with someone else, since in doing so, a judge assumes the role that our constitution otherwise reserves for the attorney general, a member of the executive branch. That’s one reason a defendant must demonstrate a clear prejudice against him — and not merely the appearance of prejudice.

There is no reason to believe there was any prejudice when this matter first came before the attorney general; if anything, Mr. Wilson started out prejudiced in favor of Mr. Harrell. If that has changed, it would have to be as a result of some egregious behavior Mr. Wilson has engaged in since then.

Further, our state constitution requires the courts to be open and demands a compelling reason to close them. A reason, by the way, that needs to be given in open court.

The basis for Mr. Harrell’s secrecy request apparently is the secrecy that surrounds the State Grand Jury. But that applies only to matters that the Grand Jury is considering — and that generally does not involve who will or will not prosecute a case. So unless Mr. Harrell is raising issues that have occurred inside the secret Grand Jury meetings — that is to say, things that have happened this year, and that he wouldn’t even know about unless they occurred while he was testifying before the Grand Jury — then we can see no legal basis for Circuit Judge Robert Hood to close his courtroom.

If anything, this request presents an even more compelling case than normal to keep the court open: If our attorney general has done something so inappropriate as to merit his removal, we need to know that. If, on the other hand, this is simply a frivolous request, designed to impugn the attorney general’s reputation, perhaps in hopes of intimidating him into backing off, we need to know that as well.

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