The S.C. Press Association has authorized a leading openness in government lawyer to seek access to a hearing before a judge who secretly has been asked to kick state Attorney General Alan Wilson off an ongoing state grand jury criminal investigation involving House Speaker Bobby Harrell.
“We have no history of secret court hearings in this state, and there should not be one,” said Bill Rogers, executive director of the S.C. Press Association.
Lawyer Jay Bender is seeking to attend a hearing at which lawyers for Harrell are expected to argue that Wilson, the state’s top elected prosecutor, be removed from the Harrell investigation, Rogers said. Bender will argue that the public and press be allowed to attend that hearing.
“This is a very important case – it should not be decided in secret,” Rogers said. “Courts need to be in sunshine to assure fairness.
“And if the judge does decide to close the hearing, that has to be done in an open hearing. We want a chance to argue for openness.”
Bender, who is the press association’s lawyer, is representing “all the newspapers in South Carolina,” Rogers said.
The judge in the case is state circuit court Judge Robert Hood, who has been on the bench two years.
Bender has emailed Hood asking for a chance to appear at any hearing in which Harrell’s lawyers seek to disqualify Wilson, but has not heard back from the judge, Rogers said.
Early last week, The State newspaper reported that Harrell’s lawyers, Bart Daniel and Gedney Howe, were seeking a secret hearing with Hood in which they hoped to get Wilson disqualified. Harrell is being investigated by the State Grand Jury for the alleged misuse of campaign funds.
After a public outcry, the hearing was not held.
Such a hearing would be a historic event – never before in state history has a lone state judge held a secret hearing and then removed the Attorney General from a high profile case without the public knowing about it, or learning what the reasons for the disqualification were.
Wilson did not initiate the State Grand Jury investigation into Harrell’s alleged misuse of campaign funds on his own. By state law, Mark Keel, chief of the State Law Enforcement Division, also had to sign off on the investigation. SLED is the state’s investigative arm.
The matter began in 2012, when citizen activists brought information to Wilson that indicated Harrell might have reimbursed himself about $300,000 from his campaign account to fly his private plane on state business. The House Ethics Committee declined to take up their complaint.
In 2013, Wilson asked SLED to investigate the matter.
In January, after months of investigation and a final SLED report, Wilson announced he would seek to empanel a State Grand Jury and present members with the SLED report. The State Grand Jury has broad investigative powers, including that of subpoena, and can probe into Harrell ’s affairs beyond the SLED investigation.
Since The State revealed plans for a secret hearing, five statewide citizens groups have issued statements decrying judicial secrecy in South Carolina and urging Hood to hold an open hearing.
Bender, a University of South Carolina professor in its Law School and School of Journalism, has for years played a role in working for open courtrooms and expanding the public’s access to government records. He is also the attorney for The State.