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December 17, 2014

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Is There a Grand Jury Process in South Carolina?

In light of recent events across the country, some people have asked me about South Carolina’s process involving a Grand Jury. In South Carolina Constitution, article I section 11 states that “no person may be held to answer for any crime the jurisdiction over which is not within the magistrate’s court, unless on a presentment or indictment of a grand jury of the county where the crime has been committed…” Essentially, nobody can proceed to a jury trial in Circuit Court without having been indicted by the grand jury of the county the crime was committed in first.

If a plea agreement was reached in a case before the grand jury has indicted the defendant, the person pleading guilty can still plead guilty if they wish to do so. If they wish to plead guilty and waive their right to have the grand jury of their county hear the case, that is known as a “waiver plea”. In this case, the defendant initials on their sentencing sheet that they do not wish for the grand jury to hear their case. The judge will also ask them, on the record, if they wish to proceed without the grand jury hearing the matter.

Who makes the case to the grand jury?

In South Carolina, unlike many other jurisdictions, the person that will traditionally make the case to the grand jury is the chief investigating police officer/detective. Other states traditionally have a prosecutor speak to the grand jury, but that is not the case in South Carolina. A prosecutor’s involvement with a grand jury is essentially putting a bunch of folders in a box and then having their secretary call the officers involved to tell them when to be at court. (Trust me, I’ve done it).

Do all General Sessions cases have to be heard by the grand jury of my specific county?

Well, no. Absent a waiver of presentment to the grand jury, all cases not within magistrate court jurisdiction have to be presented before a grand jury- we’ve already covered that. And the grand jury must be the grand jury of the county that the offense occurred in- with one big exception: the State Grand Jury.

The State Grand Jury was created by an amendment to the South Carolina Constitution in 1988. The State Grand Jury is a grand jury based in Columbia, SC, that hears specific types of offenses. They have jurisdiction throughout the entire state of SC, and the types of offenses they hear are usually prosecuted by the Attorney General’s Office. These offenses include narcotics of multi-county significance and obscenity offenses, public corruption, and election fraud. Jurisdiction has been broadened to include gang crimes, environmental crimes, computer crimes, terrorism and securities fraud. I refer to State Grand Jury cases as “almost federal” cases, as in, they prosecute crimes that are also often prosecuted by federal law enforcement and often heard in federal court.A good resource to use when reading about the State Grand Jury is the Attorney General’s website-  http://www.scag.gov/criminal-prosecution-division-2#ixzz3MAnVTFZi

What if a Grand Jury does not indict my case? Is that likely to happen?

If twelve out of eighteen grand jurors agree that there is probable cause to move forward on your case and send it to trial, the indictment is said to be “true billed”. If less than twelve find probable cause, it is considered to be “no billed” and the case is essentially dead. In my years as a prosecutor and as a public defender, I have never seen a case no billed. That does not mean that it doesn’t happen- it can and has happened in the past. As a defense attorney, I know that there are many legal defenses and avenues to attack a case. Counting on a grand jury to return a no bill on your case is not one- you are probably more likely to win the Powerball.

 

December 10, 2014

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What is the bond process in South Carolina?

Once you are charged and arrested for an offense, you will be taken to jail. Which jail you are taken to will vary depending on which jurisdiction you were arrested in, and who the arresting agency was. For example, if you were arrested by the Surfside Police Department, you will most likely be taken to the jail in Surfside- however, even if you were arrested in Surfside Beach, you may be taken to J. Reuben Long Detention Center if you were arrested by Horry County Police.

After you’re booked into the jail, you are entitled to a bond hearing. A bond hearing at jail will be held in front of a magistrate judge or municipal judge. For relatively minor offenses such as Simple Possession of Marijuana and Driving Under the Influence, 1st offense, the amount of your bond will typically be the maximum fine allowed by law for your offense- in the case of a DUI, that amount is typically $1022 (if you blew under a .10 BAC) and for Simple Possession of Marijuana it is typically $620. For other, more serious offenses, the judge will consider a variety of factors, including your ties to the community, how long you’ve lived in the area, whether you own any real property in the area, your prior criminal history, the seriousness of the offense you are accused of, and whether or not a “victim” is involved in your case. The judge will set your bond at an amount he/she feels is appropriate to ensure you do not flee from legal proceedings.

What is a Personal Recognizance Bond or PR Bond?

A Personal Recognizance Bond is a bond set by the judge that requires no cash or surety unless you do not appear in court as required. Defendants that receive a Personal Recognizance bond will typically be free to leave jail without putting up any money and without needing to hire a bondsman. Personal Recognizance Bonds are typically given to first-time, low level offenders who have little or no prior record and seem to pose no danger to the community.

What is a Surety Bond?

A surety bond is a bond that is secured by an outside party, typically a licensed, professional bondsman. Bondsmen will typically require a percentage payment of your total bond. For example, if your bond is set by a magistrate judge at $50,000, a bondsman may require a certain percentage (often around 10%) of the bond to be paid to them as a fee for them to pay the $50,000 bond. The bondsman may also set certain requirements for them to stay on your bond- such as check-ins, etc.

What if my bond is denied?

Magistrate judges do not have jurisdiction to set bond on certain offenses. These offenses include Murder, Criminal Sexual Conduct with a Minor in the First Degree, and other offenses that carry a possible term of life imprisonment. Furthermore, a new South Carolina law, 17-15-55(C), forbids magistrate judges from setting bond on a violent offense if the defendant is already out on bond for another violent offense. For example, if you are on bond for Attempted Murder and are arrested again for Attempted Murder, a magistrate judge does not have the authority to set your bond. Also- if a magistrate judge deems it appropriate, bond may be denied if you are charged with a violent offense.

If your bond is denied by a magistrate judge, you are entitled to a bond hearing by a circuit court judge. The primary factors that a circuit judge will consider is whether you are a possible flight risk, and whether you are a danger to the community. A circuit judge will set or deny your bond solely on those factors.

If your bond is denied by a circuit judge, it is unlikely you will receive a bond. South Carolina law 17-15-55(A)(2) forbids the circuit judge from reconsidering bond once it is denied, absent a “change in circumstances.” The “Change in Circumstances” rule is amorphous, and “information regarding defendant’s guilt or innocence” is not a factor that constitutes a change in circumstances. Essentially, even if you can prove your innocence while in jail, if your bond is denied- you cannot get out before trial unless the Solicitor consents.

Obtaining a reasonable bond in South Carolina is the first step in the path to vindication for most criminal defendants. Call 803-406-4376 today to schedule a free consultation to discuss your options to get the fair, reasonable bond that you are entitled to.