A circuit court judge will delay until at least next week a decision on whether to disqualify Attorney General Alan Wilson from prosecuting a State Grand Jury investigation of S.C. House Speaker Bobby Harrell.
At the end of a historic two-hour hearing Friday, Judge Casey Manning asked lawyers for both Wilson and Harrell to submit written briefs on the possible disqualification by Wednesday.
The hearing featured a rare and volatile collision between two of the state’s top officials, both Republicans. It also was unprecedented in that Harrell’s lawyers had been secretly trying to have a judge disqualify Wilson from leading a State Grand Jury investigation into Harrell’s alleged ethics violations. Harrell’s lawyers – Bart Daniel and Gedney Howe – wanted to keep their efforts and the result from public view.
Manning opened the hearing to all who wanted to attend after acknowledging objections to a closed hearing that were filed earlier by Jay Bender, an attorney for the S.C. Press Association and The State newspaper.
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Both Harrell and Wilson, who took the stand in his own defense, were in court. Neither usually affable man was observed smiling.
The public, if the request of Harrell’s lawyers had been approved, would have been kept from learning about the existence of the hearing, and apparently, even learning if Wilson had been disqualified.
But The State newspaper learned about the secret hearing and published a story March 13. In that story, Wilson’s office said he would fight disqualification and wanted an open hearing. Harrell’s lawyers declined comment. Their reasons for trying to disqualify Wilson were not disclosed prior to Friday’s hearing.
That hearing featured only two witnesses.
For Harrell, his chief of staff, Brad Wright, took the stand and told of an April 2013 confidential meeting between him and Wilson during which, Wright said, Wilson pounded his desk and angrily told Wright to take a verbal message to Harrell. The message was that Harrell had better support the formation of a Public Integrity Unit in an ethics bill under consideration in the House at the time.
Wright said Wilson also told him he “had friends with deep pockets who could make this an issue if he had to” – a statement that Wright said he understood as a threat. Wright said he left the meeting so shaken he talked to fellow lawyers at the time and wrote a memo about it.
Later, when Wright was testifying under cross-examination by Wilson’s lawyer, senior assistant attorney general Allen Myrick, the judge asked Wright a question:
“Was there a quid pro quo as a result of this meeting?” Manning asked. A quid pro quo would have possibly meant that Wilson offered something in trade for Harrell’s vote, and that might have been illegal.
“No, sir,” answered Wright, who was accompanied by his lawyer, Craig Garner of the McNair firm.
In an answer to a Myrick question, Wright admitted he had not included the “deep pockets” allegation in his memo made in April 2013.
In his testimony, Wilson admitted he had sought a private meeting with Wright to seek Harrell’s support for the Public Integrity Unit, a measure he wanted included in an ethics reform bill then in the House. But he said he only made that request as one public official asking another for support, something he said happens all the time.
Although the attorney general said he usually has a witness sit in on his meetings, he testified he avoided doing that that day so as not to intimidate Wright, a relatively young lawyer who appeared to be in his early 30s. Wilson also testified he did not want to talk to Harrell directly because at that time, in April 2013, he had asked SLED to investigate a citizen complaint against the House speaker.
Harrell testified he chose to send the complaint to SLED rather than to the House Ethics Committee because Harrell “hires and fires” that committee’s staff.
“The speaker was angry with us because we had referred the complaint to SLED,” Wilson said.
Wilson said he also wanted Wright to convey to Harrell that he was just doing his job by referring the matter to SLED, that “it was nothing personal.”
“When it comes to the criminal justice system, I don’t play politics, I don’t play favorites,” Wilson testified, adding that he told Wright that even if his parents were being investigated, he would step aside and let justice take its course. (His father is U.S. Rep. Joe Wilson.)
Wilson also denied, strongly, that he pounded his fist on his desk. “When I read that (in a Wright affidavit), it shocked me.”
Wilson also testified, “If I did anything wrong, if I made any bad judgment calls, it was meeting with him (Wright) alone.”
Under strong cross-examination by Howe, Wilson replied with sarcasm at one point, “Mr. Howe, you are failing to understand what I have been saying to you. Let me explain it again – slowly.”
At another point, Wilson told Howe, “You-all are trying to kick me off this case.” And at another time, Wilson accused Howe of “trying to prosecute the prosecutor.”
Although Harrell’s lawyers did not explain in court exactly why they want to disqualify Wilson, it appeared from their lone witness that they would argue in the brief that Wilson’s alleged statements to Wright in their meeting were so improper that he should be kicked off the case.
For one hearing observer, John Crangle of Common Cause of South Carolina, Wright’s testimony is not evidence enough to kick Wilson off the case.
For one thing, there’s no supporting evidence and nothing Wright said about Wilson amounts to a disqualification error, Crangle said.
“Wilson did show bad judgment, however, in setting up a meeting alone with Wright,” Crangle said. “I bet he doesn’t do that again for a hundred years.”
Manning substituted for Circuit Judge Robert Hood. No explanation was given for Hood’s absence other than Manning saying that he was “unavailable.”
Earlier this week, when it was still unknown whether a judge would allow a secret hearing, the S.C. Press Association, representing more than 100 newspapers, hired media attorney Bender, who wrote a brief Wednesday to Hood about the nation’s and the state’s long legal practice of open courts. The State newspaper, The (Charleston) Post and Courier, WIS-TV and WLTX-TV joined the Press Association in the case.
In ruling during the first few minutes of Friday’s hearing that the session would be open, Manning quoted sources Bender had mentioned in his brief.
Arguments for an open hearing
The futures and careers of both Harrell and Wilson are in play.
If Harrell is indicted, it might be difficult for him to keep his speaker’s post, depending on what the charges are. If Wilson, in his first term as attorney general, is kicked off such a high-profile case, that could be a major blow to any future political hopes.
In his brief, Bender cited open court precedents and said, “Harrell’s prominence in the affairs of the State of South Carolina demands that any judicial proceeding concerning him be open for scrutiny by public and press so that the public may have confidence that ‘justice was in fact done’.”
Bender also argued that a motion to expel Wilson as prosecutor had nothing to do with the Secret Grand Jury investigation, and therefore, the hearing should be open.
Under S.C. Supreme Court opinions, a judge who wants to hold a secret hearing must first hold an open hearing so arguments for and against secrecy can be presented. Only then can a judge make the rare decision to close a hearing and conduct it in secret.
The courtroom was packed with press, citizens and various public officials, including U.S. Attorney Bill Nettles, who declined to say why he was there. Rep. James Smith, D-Richland, also attended.
At the hearing’s end, Wilson left though a back door and did not speak to reporters.
Harrell did speak, saying he was glad the hearing had been made public.
Harrell, as he has before, also said he wanted the entire SLED report to be made public immediately. One of his lawyers, Bart Daniel, told reporters that the only reason the request for a hearing had been made under seal was that State Grand Jury matters are always secret, and Harrell’s legal team had no choice in the matter.