Capital and Collateral Litigation

The Capital and Collateral Litigation Unit was created in 1995 from the Direct Appeal and PCR Unit to co-ordinate that handling of all murder conviction appeals, all death penalty litigation and all federal habeas corpus litigation involving any South Carolina state convictions.

Members of the staff have been involved in ten death penalty jury trials, over 200 death penalty direct appeals before the South Carolina Supreme Court, over 100 death penalty state PCR cases, and numerous appearances before the federal courts in death penalty litigation resulting in the carrying out of forty death sentences. Unlike non-capital cases, death penalty PCR actions are handled by two appointed counsel with access to investigators, social workers, psychiatrists, and forensic experts. Also discovery, depositions, and interrogatories are routine. The PCR hearings in some of the litigation have extended beyond two weeks with over 50 witnesses in some cases. Staff has dealt with lawyers from Washington, DC, California, New York, Pennsylvania, North Carolina, Virginia, Illinois and Texas. Three cases have been profiled on Dateline and Court TV. Staff have participated in over 200 briefs before the United States Supreme Court. These have included eight (8) cases in which staff actually had the rare opportunity to present the oral arguments before the Court in Washington.

However, the Unit’s work in far from litigated to death penalty litigation. Every murder conviction direct appeal before the South Carolina Court of Appeals and Supreme Court has been handled by Unit lawyers. A recent search revealed over 750 state appellate court opinions involved staff members. The issues raised range from the admissibility of evidence from a search, voluntariness of statements, to the correctness of a jury instruction.

The unit is not limited to murder cases. To ensure continuity in positions, the units also handles every federal habeas corpus action challenging a South Carolina conviction seeking a new trial or release from custody. These cases range from a recidivist shoplifters to complex drug trafficking schemes. The opposition ranges from the most respected defense counsel in the state to pro se pleadings prepared by “jailhouse lawyers.” The litigation winds it way from a Federal Magistrate Judge to a United States District Judge to the United States Court of Appeals in Richmond to the United States Supreme Court. The defendants raise issues that were raised in both the direct appeal and the collateral state PCR actions challenging trial issues and the competency of his trial counsel on whether the state court reasonably applied the requirements of the United States Constitution. This requires the Unit staff to familiarize themselves with the briefs and issues in both the direct appeal and state PCR actions, even though they had not handled the case previously. Staff has been involved in over 900 opinions from the U. S. Court of Appeals and participated in a dozen en banc arguments before the full court of 13 judges on prior occasions.

With the advent of electronic filing in federal court, staff has now had to scan all prior litigation, including briefs, trial transcripts and appellate court records and electronically file them with the State’s response in opposition to the habeas corpus petition. This responsibility has put the staff at the forefront of this system, where some filings have been over 4,000 pages of material. Now, all filings and orders are received and served electronically, except paper documents must still be sent to the pro se inmates. Since January 1, 2008, over 6700 pleadings and orders have been filed in cases involving Unit staff. This is indicative of the amount of work the unit staff has been handling just in the habeas litigation area.

In addition to the court and briefing responsibilities, the Unit has been proactive in legal education to try to enhance the quality of justice and avoid unnecessary error at the trial level. Pursuant to a federal grant, staff held four days of legal education seminars in Greenville and Charleston for the state’s trial prosecutors in death penalty cases. Members of the unit have also routinely participated in writing articles for the Bar and lecturing in CLE programs on issues of evidence law, constitutional law, ethics and trial and appellate advocacy.