State circuit Judge Robert Hood has announced a Friday morning hearing in the matter concerning House Speaker Bobby Harrell’s secret effort to disqualify Attorney General Alan Wilson from leading a State Grand Jury probe into Harrell’s affairs.
The notification to a State reporter came in an email from the State Grand Jury clerk of court’s office shortly after noon Thursday.
“Please be advised there will be a hearing on Friday, March 21, 2014, at the Richland County Courthouse, courtroom 2-B, at 10:30 a.m., in front of the Honorable Robert E. Hood,” said the email, from State Grand Jury clerk of court James Parks.
A State reporter had requested in a March 11 email to be notified of the time and place of the then-unannounced hearing so the newspaper could have an attorney present to argue that the hearing to disqualify Wilson as prosecutor should be open.
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On March 13, The State published a story revealing that Harrell was secretly trying to get Hood to kick Wilson off an active, ongoing criminal probe into Harrell’s alleged misuse of campaign funds.
Harrell’s lawyers, Bart Daniel and Gedney Howe, were asking Hood for a closed-door hearing so they could argue that Wilson should be disqualified, The State reported. The State also reported that Wilson was protesting the secrecy surrounding such a hearing and wanted to stay on as prosecutor in Harrell’s case. The State based its story on confidential sources. It was not clear why Harrell’s lawyers wanted Wilson removed.
State Grand Jury matters are confidential. However, legal authorities have said that a motion to disqualify the prosecutor from the case should be heard in a public hearing because it is not part of the confidential investigation.
After The State’s March 13 story, various civic groups across South Carolina criticized the idea of holding a secret hearing in such a high-profile case.
Never before in South Carolina had a lone judge planned to hold a secret court hearing in such a widely publicized matter, in which the House speaker would seek to kick an attorney general, the state’s top elected official, off the case without the public having any knowledge of the proceedings.
Earlier this week, the S.C. Press Association – representing all 109 newspapers in South Carolina – authorized its standing media attorney, Jay Bender of Columbia, to request of Hood that he be allowed to attend the hearing on whether Wilson should be disqualified.
Bender has made the request and seeks to argue that the hearing be public. Joining in the Press Association’s motion are The State newspaper, The (Charleston) Post and Courier newspaper and Columbia television stations WLTX-TV and WIS-TV.
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.
“I don’t know how happy to be,” S.C. Press Association executive director Bill Rogers said Thursday on being informed of Hood’s announcement of the hearing.
Rogers said he didn’t know how much of the hearing would be open, but Bender would be there to argue for complete openness.
Under numerous state and U.S. Supreme Court decisions, criminal court proceedings are open to the public. Openness helps the public to have trust in the court system, Supreme Court opinions have said.
In a motion to Hood for openness, Bender writes in his request. “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.’”
His request continues: “... given Harrell’s position as speaker of the House..., and the allegations that he has violated state law with respect to the use of campaign funds, any outcome reached by a secret judicial hearing would be met with understandable skepticism regardless of whether the decision were favorable or unfavorable to Harrell.”
Wilson did not initiate the ongoing 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.
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 report. The State Grand Jury has broad investigative powers, including that of subpoena, and can probe into Harrell’s affairs beyond the SLED investigation.