CALL IT THE CASEY Manning correction. Perhaps even the Supreme Court correction.
After Judge Manning nearly shut down the corruption investigation into then-House Speaker Bobby Harrell, and the unanimous Supreme Court obliquely instructed him to continue his efforts behind closed doors, and Attorney General Alan Wilson had to snooker the judge in order to keep the investigation alive, the Legislature acted quietly this year to strip judges of most of their power to thwart criminal investigations.
We’re used to seeing the Legislature strip power from the other two branches of government whenever legislators feel like it, but this is one of those rare cases where lawmakers took something away from the courts that they never should have had. It’s particularly notable because by doing nothing, legislators could have made it more difficult to prosecute drug kingpins and pornographers and polluters and securities shysters — and legislators.
Judges still can stop prosecutions if prosecutors get out of hand — and that is entirely as it should be. They can even stop some investigations from going terribly off course. But they no longer get to decide whether prosecutors can use a powerful investigative tool to build their cases, which prosecutors can use that tool and how effectively it can be used.
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At issue is the State Grand Jury, which allows attorneys general to subpoena documents and compel testimony in ways a county grand jury cannot. It was modeled on the federal grand jury, with one important exception: Judges had control over it. Which is to say that it subverted the traditional separation of powers between the judicial and executive branches of government.
For 25 years, this was a problem in theory rather than practice. Then in early 2014, Mr. Wilson and SLED Chief Mark Keel asked Judge Manning to empanel the State Grand Jury to investigate Mr. Harrell.
Former House Speaker Bobby Harrell eventually pleaded guilty to six corruption charges as a result of the investigation that a judge tried to quash.
Before any charges were brought against him, Mr. Harrell filed a motion to disqualify Mr. Wilson as the prosecutor, based on allegations of a conflict of interest that were so spurious that no judge should have taken them seriously. Instead of ruling on the motion, Judge Manning did something unthinkable: He issued an order quashing the investigation. He said the House Ethics Committee had sole jurisdiction to investigate legislators’ ethics violations, despite the constitutional provision that gives the attorney general authority to investigate and prosecute any and all crimes.
After dismissing the investigation, the judge refused to sign routine orders necessary for the grand jury to do its work, even though state law says an investigation can proceed pending appeal. And when the grand jury’s one-year term ended in the midst of the legal wrangling, Judge Manning refused to transfer the investigation to the new grand jury, as judges had done routinely in previous investigations.
The Supreme Court overturned Judge Manning’s order, but it told him to decide the original question of disqualification; in a footnote that included no apparent legal basis, the court told the judge to hold hearings on that matter in secret.
It was widely believed that Judge Manning was about to disqualify Mr. Wilson in a secret hearing, when the attorney general saved the case by handing off the investigation to 1st Circuit Solicitor David Pascoe. Judge Manning and Mr. Harrell agreed to that because they didn’t realize Mr. Pascoe already had been working with Mr. Wilson and had enough evidence to proceed without the State Grand Jury.
What? The target of an investigation had to “agree to” this? How did that happen?
The new law smashes through all of the judicial roadblocks that Mr. Wilson was forced to navigate around.
Now, if the attorney general asks to extend the grand jury’s term or transfer an investigation to a new grand jury, the judge must do so.
A judge still can disqualify the attorney general, but only if he finds “an actual conflict of interest resulting in actual prejudice against the moving party.” If he does disqualify the attorney general, the attorney general — not the judge — selects the prosecutor to take over the case.
Motions to disqualify a prosecutor must, by law, be heard in open court.
And from the start, it’s up to the attorney general and the SLED chief, not the judge, to decide whether to empanel the grand jury.
Read the new law here. To see how the old law was changed, select the June 20, 2015, version.
Senate Judiciary Chairman Larry Martin, who sponsored the bill, recalled that back in the 1980s, a lot of lawmakers were leery of giving such a powerful tool to the attorney general.
“It was new to us when we did it,” he told me recently. “We probably built in some protections that we didn’t need, and we’ve seen some of the bad experiences that came with a judge basically controlling the process, and it needed to be dealt with.”
Sen. Martin said that although Mr. Wilson never shared all the details about the problems he encountered in the Harrell investigation, “It reached a point where it was obvious that he was being obstructed in everything he tried to do.”
Apparently, that was obvious to a lot of legislators, because Mr. Wilson never had to make a public case for the change, which could have been a dicey proposition since the Supreme Court has nearly life-and-death control over lawyers. Instead, he met privately with legislators, and initial resistance to the bill melted away.
Freshman Sen. Ronnie Sabb briefly held up the bill after he was thwarted in his attempt to use it as a vehicle to expand the grand jury’s jurisdiction to cover police-involved shootings. But he removed his objection after a few weeks, the Senate passed the bill with a slight tweak, the House passed it with another slight tweak, the Senate signed off on the House’s change, and it was on the governor’s desk without any floor debate.
In practical terms, the law only returns us to the status quo ante. After all, attorneys general had never before run into this sort of problems with a presiding judge. But the legal basis always had been there for such interference, and the way the Harrell case was handled was so alarming, and so public, that it could have presaged all sorts of inappropriate judicial interference in the prosecution of some of our state’s most sensitive criminal cases.
In a regular legislative session filled with failure after failure, this was a clear victory of the magnitude that we don’t often see in this state.
Ms. Scoppe writes editorials and columns for The State. Reach her at firstname.lastname@example.org or (803) 771-8571 or follow her on Twitter @CindiScoppe.