Capital Collateral Litigation

The Capital and Collateral Litigation Section was created in 1995 from the Direct Appeal and PCR Unit to co-ordinate the 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 section 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.  Staff has also participated in the filing of 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 oral arguments before the Court in Washington, DC.  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 evidentiary hearings in some of the PCR 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.

However, the Section’s work is far from limited to death penalty litigation. Every murder conviction direct appeal before the South Carolina Court of Appeals and Supreme Court has been handled by Section 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 section is also not limited to murder cases. To ensure continuity in the State’s position in litigation, the section handles every federal habeas corpus action challenging a South Carolina conviction seeking a new trial or release from custody.  These cases range from 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.”  In their petitions for federal habeas corpus, inmates usually raise issues that were raised in both either their direct appeal or their 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 Section’s 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.

Federal habeas corpus litigation begins before a Federal Magistrate Judge.  It then moves to a United States District Judge.  An appeal from the district judge’s order is typically filed with the United States Court of Appeals in Richmond, and sometimes further appealed to the United States Supreme Court.  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; however, paper documents must still be served on 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.  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.

In addition to its responsibilities in litigation, the Section has been proactive in legal education to try to enhance the quality of justice and avoid unnecessary error at the trial level. In the past, the Section staff presented four days of legal education seminars in Greenville and Charleston for the state’s trial prosecutors in death penalty cases. Members of the section also routinely participate in writing articles for the Bar and lecturing in CLE programs on issues of evidence law, constitutional law, ethics and trial and appellate advocacy.

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Columbia, SC

Rembert Dennis Building | 1000 Assembly Street,

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Phone: 1-803-734-3970 | Fax: (803) 253-6283

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