S 1242 Session 111 (1995-1996)
S 1242 General Bill, By McConnell
Similar(H 4469)
A Bill to enact the "South Carolina Effective Death Penalty Act of 1996"
including provisions to add Section 16-3-21, Code of Laws of South Carolina,
1976, to prohibit, without prior court approval, contact with jurors who
sentenced an individual to death by attorneys or agents of that individual; by
adding Section 17-25-375 so as to further provide for procedures for the
setting of execution dates; by amending Section 17-25-380, relating to notices
of the intent to execute a death sentence, so as to further provide for these
notice requirements; by adding Section 17-27-130 so as to clarify the
circumstances when the attorney-client privilege is waived in State post
conviction proceedings, and to provide for certain access of new counsel to
the files of prior counsel in cases of defendants sentenced to death; by
adding Section 17-27-140 so as to require the sentencing trial judge in
capital cases to preside over collateral review proceedings unless actual bias
or prejudice is found to exist; by adding Section 17-27-150 so as to provide
that discovery processes are only available to the parties in a state post
conviction relief case upon a showing of good cause; and by adding Section
17-27-160 so as to provide for time limits in certain matters in state post
conviction relief cases involving a sentence of death for the purpose of
expediting review of such cases, and to further provide for the appointment
and compensation of counsel in these cases.
03/07/96 Senate Introduced and read first time SJ-6
03/07/96 Senate Referred to Committee on Judiciary SJ-6
A BILL
TO ENACT THE "SOUTH CAROLINA EFFECTIVE
DEATH PENALTY ACT OF 1996" INCLUDING
PROVISIONS TO ADD SECTION 16-3-21, CODE OF LAWS OF
SOUTH CAROLINA, 1976, TO PROHIBIT, WITHOUT PRIOR
COURT APPROVAL, CONTACT WITH JURORS WHO
SENTENCED AN INDIVIDUAL TO DEATH BY ATTORNEYS
OR AGENTS OF THAT INDIVIDUAL; BY ADDING SECTION
17-25-375 SO AS TO FURTHER PROVIDE FOR PROCEDURES
FOR THE SETTING OF EXECUTION DATES; BY AMENDING
SECTION 17-25-380, RELATING TO NOTICES OF THE
INTENT TO EXECUTE A DEATH SENTENCE, SO AS TO
FURTHER PROVIDE FOR THESE NOTICE REQUIREMENTS;
BY ADDING SECTION 17-27-130 SO AS TO CLARIFY THE
CIRCUMSTANCES WHEN THE ATTORNEY-CLIENT
PRIVILEGE IS WAIVED IN STATE POST-CONVICTION
PROCEEDINGS, AND TO PROVIDE FOR CERTAIN ACCESS
OF NEW COUNSEL TO THE FILES OF PRIOR COUNSEL IN
CASES OF DEFENDANTS SENTENCED TO DEATH; BY
ADDING SECTION 17-27-140 SO AS TO REQUIRE THE
SENTENCING TRIAL JUDGE IN CAPITAL CASES TO
PRESIDE OVER COLLATERAL REVIEW PROCEEDINGS
UNLESS ACTUAL BIAS OR PREJUDICE IS FOUND TO
EXIST; BY ADDING SECTION 17-27-150 SO AS TO PROVIDE
THAT DISCOVERY PROCESSES ARE ONLY AVAILABLE TO
THE PARTIES IN A STATE POST-CONVICTION RELIEF
CASE UPON A SHOWING OF GOOD CAUSE; AND BY
ADDING SECTION 17-27-160 SO AS TO PROVIDE FOR TIME
LIMITS IN CERTAIN MATTERS IN STATE
POST-CONVICTION RELIEF CASES INVOLVING A
SENTENCE OF DEATH FOR THE PURPOSE OF EXPEDITING
REVIEW OF SUCH CASES, AND TO FURTHER PROVIDE
FOR THE APPOINTMENT AND COMPENSATION OF
COUNSEL IN THESE CASES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. This act is known and may be cited as the
"South Carolina Effective Death Penalty Act of 1996".
SECTION 2. The 1976 Code is amended by adding:
"Section 16-3-21. In all cases in which an individual is
sentenced to death by a jury, counsel for the sentenced individual
and his agents are prohibited from contacting jurors in the matter,
either directly or indirectly, concerning their service as jurors
without prior approval by the trial judge or the post-conviction
relief judge. Upon a showing of good cause, the judge may allow
for juror interviews in any appropriate manner which does not
amount to harassment and gives the highest degree of reliability to
the responses, including limiting the interrogation of prior jurors to
inquiry by the trial judge in open court. Absent extraordinary
circumstances, the court shall not permit the unbridled and
unsupervised interrogation of jurors by counsel or agents
representing a death-sentenced individual."
SECTION 3. The 1976 Code is amended by adding:
"Section 17-25-375. (A) In a criminal case where a
sentence of death has been imposed, the Governor shall set an
execution date when he is notified in writing by the Attorney
General either that:
(1) The Supreme Court of South Carolina has denied state
post-conviction relief either by the denial of certiorari or an appeal,
or the time for filing of an appeal from the denial of the state
post-conviction relief has passed without an appeal being filed;
(2) The Supreme Court of the United States has issued a final
order disposing of the case after granting a stay to review the
judgment of the Supreme Court of South Carolina or the Court of
Common Pleas on state post-conviction relief;
(3) The United States Court of Appeals has affirmed the
denial of federal habeas corpus relief, or the time for filing a timely
appeal in that court has passed without such an appeal being filed;
or
(4) The Supreme Court of the United States has issued a final
order after granting a stay in order to dispose of the petition for
writ of certiorari to review the judgment of the United States Court
of Appeals.
(B) The Governor shall notify the Clerk of the Supreme Court
of South Carolina and the Director of the South Carolina
Department of Corrections or his duly appointed officer in charge
of the institution detaining the individual sentenced to death of the
disposition set forth above and the requirement that an execution
date be set and, upon the fourth Friday following the receipt of the
notice from the Governor, the sentence of death shall be carried out
pursuant to Section 24-3-530. Once an execution date is scheduled,
a stay of execution may be granted by the Supreme Court of South
Carolina. Nothing in this section shall prohibit the Supreme Court
of South Carolina from setting an execution date under
circumstances other than those specified herein. Also nothing in
this section shall prohibit respite or commutation by the
Governor."
SECTION 4. Section 17-25-380 of the 1976 Code is amended
to read:
"Section 17-25-380. Two copies of the notice shall be
served or sent by registered mail to the commissioner of the
prison system Director of the Department of
Corrections or his duly appointed officer in charge of the
State Penitentiary applicable correctional facility.
The notice, when the sentence has been affirmed, shall read
substantially as follows: `This is to notify you that the sentence of
death imposed in the case of State vs. from which
an appeal has been taken has been affirmed and finally disposed of
by the Supreme Court and the remittitur has been sent down to the
clerk of the Court of General Sessions of County.
It is, therefore, required of you by Section 17-25-370 of the Code
of Laws of South Carolina to execute the judgment and sentence of
death imposed on said defendant or defendants (if more than one)
on the fourth Friday after the service upon you or receipt of this
notice.'
When the appeal has been dismissed or abandoned the notice
shall be substantially the same as when the sentence has been
affirmed except that the first sentence thereof shall read as
follows: `This is to notify you that the appeal from the sentence of
death imposed in the case of State vs. has been
dismissed (or abandoned) and the notice has been sent down to the
clerk of the Court of General Sessions of County.'
When one of the conditions set forth in Section 17-25-375
occurs, the notice shall be substantially the same as when the
sentence is affirmed on direct appeal except the first sentence of the
notice shall set forth the appropriate condition established in Section
17-25-375."
SECTION 5. The 1976 Code is amended by adding:
"Section 17-27-130. Where a defendant alleges ineffective
assistance of prior trial counsel or appellate counsel as a ground for
post-conviction relief or collateral relief under any procedure, the
applicant shall be deemed to have waived the attorney-client
privilege with respect to both oral and written communications
between counsel and the defendant, and between retained or
appointed experts and the defendant. This waiver of the
attorney-client privilege shall be deemed automatic upon the filing
of the allegation alleging ineffective assistance of prior counsel and
the court need not enter an order waiving the privilege. Thereafter,
counsel alleged to have been ineffective is free to discuss and
disclose any aspect of the representation with representatives of the
State for purposes of defending against the allegations of
ineffectiveness.
In the case of a defendant who has been convicted of a capital
offense and sentenced to death, the defendant's prior trial counsel or
appellate counsel shall make available to the capital defendant's
collateral counsel the complete files of the defendant's trial or
appellate counsel. The capital defendant's counsel may inspect and
photocopy the files, but the defendant's prior counsel shall maintain
custody of their respective files, except as to the material which is
admitted into evidence in any trial proceeding."
SECTION 6. The 1976 Code is amended by adding:
"Section 17-27-140. Where a post-conviction relief
application involves a conviction which resulted in a sentence of
death, the application shall be heard by the trial judge who rendered
the sentence of death. The trial judge of the sentencing court may
be removed from the proceeding only upon a showing of actual bias
or prejudice related to the particular allegations set forth in the
application for post-conviction relief. If the trial judge is unable to
sit because of disqualification or resignation as a Circuit Court
Judge, the Supreme Court of South Carolina shall appoint a new
judge to hear the post-conviction relief matter."
SECTION 7. The 1976 Code is amended by adding:
"Section 17-27-150. A party shall be entitled to invoke
the processes of discovery available under the South Carolina Rules
of Civil Procedure if, and to the extent that, the judge in the
exercise of his discretion and for good cause shown grants leave to
do so, but not otherwise. If necessary for the effective utilization of
discovery procedures, counsel may be appointed by the judge for an
applicant who qualifies for appointment pursuant to Section
17-27-60 or similar applicable provisions of law."
SECTION 8. The 1976 Code is amended by adding:
"Section 17-27-160. (A) If a defendant has been
sentenced to death in South Carolina, he must file his application
for post-conviction relief in the county in which he was indicted for
the crime resulting in the sentence of death. Upon receipt of the
application for post-conviction relief, the clerk of court shall
forward the application to the original sentencing judge who shall
maintain administrative control over the expedited consideration of
the application pursuant to this section. A copy of the application
shall be immediately provided to the solicitor of the circuit in which
the applicant was convicted and a copy provided to the Attorney
General. The filing of the application does not automatically stay
any sentence of death.
(B) Upon receipt of the application for post-conviction relief,
the counsel for the respondent shall file a return within thirty days
after receipt of the application.
If the applicant is indigent and desires representation by counsel,
counsel shall be immediately appointed to represent the petitioner in
this action. The court may not appoint an attorney as counsel under
this section if the attorney represented the applicant at trial or in a
direct appeal unless the applicant and the attorney request
appointment on the record or the court finds good cause to make
the appointment. Counsel appointed to represent the applicant must
be a member of the South Carolina Bar and satisfies the minimum
guidelines set forth in Section 16-3-26 for appointment in death
penalty cases. Counsel appointed in these cases shall be
compensated from the funding provided in Section 16-3-26 in the
same manner and rate as appointed trial counsel. Appointed
counsel on appeal from state post-conviction relief cases shall be
funded and compensated from the funds established for
representation of indigents on appeal by the Office of Appellate
Defense pursuant to Chapter 4 of Title 17.
If counsel is the same person appointed as counsel on appeal, the
court shall appoint a second counsel to assist in the preparation of
the application for post-conviction relief. If the applicant elects to
proceed pro se, any findings made by the court shall be done on the
record and in open court concerning the waiver of the assistance of
counsel.
(C) Not later than fifteen days after the filing of the state's
return, the judge shall convene a status conference to schedule a
hearing on the merits of the application for post-conviction relief.
The hearing shall be scheduled within forty-five days from the date
of the status conference.
(D) Within thirty days from the last date of the taking of oral
testimony, the hearing judge in writing shall make specific findings
of fact and state expressly the judge's conclusions of law relating to
each issue. This order is a final judgment.
(E) In these expedited capital post-conviction relief hearings, a
court reporter shall be assigned to take testimony. The transcription
of the testimony and record shall be given priority over all other
matters concerning the preparation of the record and, upon
completion, shall immediately be provided to the parties and the
Clerk of the Supreme Court of South Carolina."
SECTION 9. This act takes effect upon approval by the
Governor.
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