SC needs grand jury reform now.

The grand jury system, devised hundreds of years ago, was designed and intended to allow ordinary people to decide whether a person should be charged with a crime. The grand jury was to serve as the gatekeepers, ensuring that the government did not arrest and prosecute persons when there was no probable cause that a crime had been committed.

It has become… something else.

The grand jury process in SC today is a joke. Rather than shield the people from an overreaching government, it has become the tool of an overreaching government, allowing prosecutors to charge citizens with crimes without any meaningful oversight by jurors and even allowing prosecutors to charge citizens with crimes after a judge has found there is no probable cause…

What does the grand jury in SC do and is there any point in keeping it? SC’s grand jury system has been hopelessly twisted to serve the government instead of the people. How do we fix it? Can we fix it?

Indictments Dismissed in Greenwood County

In 2019, a Greenwood County, SC judge dismissed 18 indictments for attempted murder, using a weapon during a violent crime, and breach of peace high and aggravated:

… six young men were charged with attempted murder, using a weapon during a violent crime, and breach of peace, high and aggravated in nature, in connection to a shots fired inside the Greenwood Mall in July…

Wednesday, the judge in the case issued an order throwing out the 18 indictments. Jury selection began Monday.

The judge’s decision came down to an issue involving the grand jury.

The Court agreed with defense attorneys that it was improper for a witness to appear at the grand jury proceedings who had no firsthand information about the case that was being presented:

[Defense attorney Charles Grose] said a procedural rule was broken when the witness for the case wasn’t listed on the indictments. According to Grose, the state brought the same officer as a witness for all 100 of the cases brought before the grand jury that day. He said that officer didn’t have knowledge of the shooting investigation.

Although the Court agreed that the witness who appears before the grand jury should at least know something about the case, the Court also found that it was okay that the grand jury spent an average of less than one minute per indictment before voting to allow the cases to go forward:

Grose also said the grand jury didn’t have enough time to do their job.

“That’s less than one minute per indictment to hear the testimony, to discuss what the testimony was, and to be able to vote on each individual indictment,” he said.

The judge disagreed with their argument about time, but he did find that the wrong person testified and tossed all 18 charges.

The prosecutor said that he would re-indict the defendants and call the case for trial again. We can assume he brought a witness to the grand jury who is familiar with the case… to speak for less than one minute per indictment.

What Does a Grand Jury Do in SC?

The grand jury is made up of 18 people who are supposed to determine whether there is probable cause for a case to go forward. They vote “no bill” or “true bill,” based on testimony read by an officer or investigator who may or may not even be familiar with the case.

The grand jurors hear a brief, prepared statement from the “witness” which takes a minute or two for them to read. They do not hear any testimony from the defendant or any witness on behalf of the defendant. After hearing a brief, one-sided, conclusory statement that the defendant is guilty of the crime, the jurors inevitably and understandably “true bill” almost every indictment.

Although close to half of the cases are later dismissed by either a prosecutor or judge for insufficient evidence, the grand jury indicts 99.99 percent of all cases that are presented to it… why is that?

The grand jury in SC serves no useful purpose anymore if it ever did:

Unfortunately, South Carolina’s grand jury process has become an expensive, taxpayer-funded waste of time. Grand juries don’t really “decide” anything anymore; rather, they just rubber stamp whatever charges the prosecutor wants to file…

SC’s Grand Jury is a Joke

The joke: SC’s grand jury is a system designed to check government abuse of power and ensure no one is charged without probable cause.

The punchline: Not only is the grand jury a system where charges are rubber-stamped, but prosecutors also use it to get indictments where a judge has already ruled there is no probable cause.

Even before the grand jury convenes, defendants in SC can appear at a preliminary hearing intended to determine if there is probable cause. They get an opportunity to cross-examine witnesses and present their side of the story. This is a chance for judges to recognize a weak case and dismiss it – which they often do.

However, even after a judge finds that there is no probable cause for charges to go forward, SC law allows the prosecutor to then take the case to a grand jury. The grand jurors will not hear the evidence the judge heard during the preliminary hearing, and they will almost certainly return an indictment.

So, the grand jury process is not just a rubber stamp for prosecutors, it’s also a way they can move a bad case forward even after the court says no.

It’s a waste of time and resources. It does not serve its intended purpose. It allows prosecutors to indict defendants after courts have found there is no probable cause. Can it be fixed?

How do We Fix SC’s Broken Grand Jury System?

If we are going to continue convening grand juries in SC, we need to make them meaningful.

To do that, control of the grand jury process needs to be taken away from prosecutors, the proceedings need to be recorded, the defense needs to be allowed to present evidence on the question of probable cause, and the jurors need to hear actual evidence in each case.

On the other hand, we could kill the already-dead grand jury in SC and instead make preliminary hearings more meaningful:

• Restructure the grand jury process to make it meaningful. Require that a record of the proceedings be made available to the parties, allow the defense to appear to present evidence to contest probable cause, and allow the grand jurors to actually hear the evidenceon both sides before making their decision; or
• Do away with the grand jury and make the preliminary hearing process more meaningful – probable cause hearings should be presided over by a circuit court judge with a law degree, not a magistrate or municipal judge. And, if a judge decides there is no probable cause, the case is over – as it should be.

Of course, the idea was to have 18 citizens – ordinary people – acting as the gatekeepers for prosecutions by the government.

Preliminary hearings consist of a judge – the government – acting as the gatekeeper for prosecutions by the government…

SC Criminal Defense Lawyer in Myrtle Beach

Daniel A. Selwa is a criminal defense attorney in Myrtle Beach, SC.

Call now at (843) 492-5449 or send an email for a free consultation to discuss your case and how we can help.