Does the County Grand Jury System in South Carolina Need Some Level of Reform?
Published: May 18, 2018
By Daniel J. Gross The Greenville News
Attorney Steve Henry describes the Greenville County grand jury as a rubber stamp of approval for the Solicitor’s Office.
He said the grand jury — citizens who decide whether there’s enough evidence for a criminal charge to proceed to trial — has become part of a meaningless step in the South Carolina judicial process rather than a way to defend against unfounded prosecutions.
Here’s the data Henry uses to support his argument: According to records from the Greenville County Clerk of Court’s office, the grand jury here reviewed 5,104 indictments in 2017 and returned all of them as true bill indictments, meaning they heard enough evidence on every charge last year to determine it was at least probable that a crime occurred.
Over the past five years, the Greenville County grand jury has reviewed more than 22,500 indictments and returned 99.99 percent of them as true bills, according to court records. Only 24 in that time have been returned as “no bills,” meaning the grand jury decided a case should not be tried.
Those numbers in Greenville County and similar ratios in other parts of South Carolina show that the grand jury system is outdated and needs some level of reform, according to Henry and other attorneys. They argue the current system doesn’t give jurors enough time to review cases thoroughly or provide any way for the defense attorneys to challenge or review the proceedings.
The flaws, they say, would leave an innocent person tied up in the legal system or in jail longer than necessary.
“It’s not ethical to let someone sit in jail,” Henry said.
Henry has challenged the structure of the grand jury for decades and is using the latest data to further his argument. He hopes to improve the grand jury, leaning on a South Carolina bill that would make monthly sessions transparent so attorneys can see how much evidence jurors consider before indicting.
Solicitor Walt Wilkins said the grand jury system works as intended and that Henry’s classification of the grand jury as a rubber stamp is a “salacious statement to try to present misinformation.” Wilkins said multiple layers of the judicial system give a defendant an opportunity to have their case dismissed ahead of a trial, and the grand jury is just one phase.
“The standard is minimal. It’s not a trial,” Wilkins said of the grand jury. “They just have to show that it’s probable that it happened.”
How the Grand Jury Works
The grand jury concept dates to the 1200s in England before early colonists brought the system over to America. It began as a way to have ordinary citizens weigh in on whether charges should be brought against someone.
Today, 23 states require a grand jury to indict before the prosecution of a criminal case severe enough to receive a $500 fine or more than thirty days in jail. For 25 other states, a grand jury indictment is optional, according to the University of Dayton School of Law. Connecticut and Pennsylvania have done away with using grand juries to return indictments.
According to the South Carolina constitution, “The purpose of the grand jury is to bring to trial persons accused of crimes, upon just grounds, and to protect innocent people from being required to appear in response to improper accusations.”
Of 18 citizens on the grand jury, 12 votes are needed for a true bill indictment.
The track record in Greenville County shows that nearly all the cases that come before the grand jury are returned as true bills. From 2013 to 2015, the Greenville County grand jury returned only five no bills out of nearly 13,000 charges reviewed.
In 2016, there were 19 no bills and 4,469 true bills.
Other parts of the state have similar ratios. In Sumter County, for example, the grand jury returned 2,936 indictments between 2014 and 2016 and only six indictments were no billed, according to Florence-based attorney Patrick McLaughlin.
Henry, the Greenville-based attorney, said the indictment imbalance shows that the grand jury is handed far too many cases in a short amount of time — too short a time to effectively weigh any evidence.
Often, the grand jury returns more than 400 indictments within an eight-hour day. There were 450 true bills signed during the convening of the grand jury’s session in April, Clerk of Court records show. That’s less than a minute per indictment.
At-large Circuit Court Judge Mark Hayes, assigned to the Seventh Judicial Circuit that covers Spartanburg and Cherokee counties, said in his 16 years as a judge he has never had a question asked by the grand jury.
Henry said it’s more evidence that the jurors do whatever the prosecution wants and do not spend a lot of time weighing evidence in cases.
Michael Moore, the Beadle County State’s Attorney in South Dakota, said his state uses an optional grand jury that involves recordings and public transcripts. He said grand juries serve an important role but determining probable cause is easily attainable.
Raising the minimum standard of proof or having to bring forth more evidence at time of indictment is impractical.
“There are too many cases,” Moore said. “People that are promoting this have no idea how much time and cost this would be. And are they willing to pay for that? The standard for probable cause is low. All it’s doing is establishing enough to proceed to trial.”
He said often prosecutors will weed out cases that don’t meet the standard before presenting it to the grand jury. The amount of true bills returned from the Greenville County grand jury did not surprise Moore.
“We don’t take cases to grand jury that are no good,” he said. “When I read an arrest report I think if I can get a conviction in a case. If I don’t think I can get a conviction, I’m probably not presenting it to a grand jury.”
Henry says there’s no reason for the grand jury to see so many cases in a single session. Of more than 5,000 true bill indictments last year, 83 resulted in a total of 30 jury trials, Henry said. The rest of the true bill indictments either led to pleas or dismissals.
Henry argues that if a defendant is innocent, the grand jury would never know. Then the defendant would be forced to stand trial or be offered a plea deal for a crime they didn’t commit.
Demetrius Sims, of Greenville, spent two years in jail on a robbery charge that was ultimately dropped. He couldn’t afford to get out on bond, and evidence found early on in his case suggested he may be innocent.
Sims said had the grand jury known more detail in his case, they may have decided not to indict him. Some states allow defendants the opportunity to speak in reference to their case.
“They’re not lawyers,” Sims said of the grand jurors. “They don’t know what to think. They only know what’s presented to them. In my situation, they didn’t know that I didn’t do this crime.”
Effort for Transparency
Moore advocates for more states to make transcripts available from each session. Henry would like to see the practice in South Carolina. He argues that if transcripts from grand jury hearings were kept, then attorneys could know what evidence or lack of evidence was presented before the jurors voted.
“It would give the option for a defense or a judge to be able to pull up a recording or transcript to see if there’s anything fishy,” Henry said.
House Bill 3880 would address grand jury transparency. It was referred to a judiciary committee in March 2017 and hasn’t gone anywhere since then.
The effort would “require a record of testimony and other proceedings of the county grand jury,” the bill states. It would also require that the jury produce a copy of that transcript to the defendant.
McLaughlin, the Florence-based attorney, said he helped write the bill and was told a group of lawmakers created a working group to further study the effort. He said the grand jury convening in secret — the sessions are not open to the public — doesn’t allow an opportunity for a defendant to challenge what takes place.
“We’ve got a constitutional right to a grand jury and that’s been recognized. Also, South Carolina recognizes the fact that a defendant has the right to challenge whether or not the grand jury is properly or appropriately comprised,” McLaughlin said. “If you don’t have a way to enforce that constitutional right, then you really don’t have that constitutional right.”
Other attorneys have voiced similar concerns about the way the grand jury pushes cases through the system.
Summerville attorney Russell Hilton was a prosecutor for the First Judicial Circuit, which covers Dorchester, Orangeburg and Calhoun counties, before he became a defense attorney. He said the legislative effort to make grand jury transcripts public is “a step in the right direction.”
“The mindset of law enforcement and solicitors to arrest somebody and sort it out later is really backwards and really causes people a lot of problems unnecessarily,” Hilton said.
If the evidence in a case doesn’t support the charge, Solicitor Wilkins said the grand jury is one of the checks and balances in the judicial system.
He said after a law enforcement officer files a charge, a magistrate analyzes the case for probable cause and someone is given a right to a preliminary hearing. Depending on the testimony of a preliminary hearing, a judge could decide that the charge should not be presented to a grand jury.
Combined with the grand jury, the previous steps in the judicial system give a defendant ample opportunity for a defendant to clear his or her name if the evidence isn’t there, Wilkins said.
“There are methods to the way the process is set up, giving as much openness and fairness to the defendant,” he said.
Questioning the Proceedings
In March, McLaughlin sent letters to legislators across the state seeking help with improving the county grand jury system and making sure the law is followed. The lack of record-keeping in a grand jury session prevents attorneys from knowing who testified.
His questioning in court has shown that indictments are often read by one officer or investigator from an agency, regardless of whether that official was the arresting officer or not. It showed also that someone presenting an indictment to a grand jury may not have any personal knowledge of a case.
In a recent Florence County Circuit Court case, he had a law enforcement officer testify that the grand jury did not ask him a single question about the presented indictments. The officer said if they had asked him, he would have had to excuse himself from the hearing to call a lead investigator to obtain answers.
“The law clearly states the name should be on the indictment,” McLaughlin said. “That is not what happens. The lead investigator is always put on the indictment, and it doesn’t matter who is going to testify. How can I ever ensure the grand jury presentment was proper?”
Bob Ariail, a former solicitor in the 13th Judicial Circuit, said having the arresting officer be present at grand jury sessions is unrealistic.
“If you have a grand jury day with 500 warrants and each arresting officer is present you would shut down law enforcement in Greenville County,” Ariail said. “The system is outdated. That’s the bottom line.”
As McLaughlin looks for ways to improve the grand jury system, he said “nobody wants to upset the apple cart.” He said if the legislature can’t change the status quo, judges should.
“If constitutional rights are getting observed and protected, that’s on the court, not on the legislature,” McLaughlin said.