H*4469(Rat #0518, Act #0448 of 1996)  General Bill, By Wilkins, J. Brown, Cato, 
Harrison, Haskins, Sharpe, D. Smith and Townsend

Similar(S 1242)
 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, so as to provide for verbal instructions to the jury concerning
 discussion of the verdict in all cases in which a defendant is sentenced to
 death; to amend Section 17-25-380, relating to notices of the intent to
 execute a death sentence, so as to further provide for these notice
 requirements; to add Section 17-27-130 so as to provide for circumstances when
 the attorney-client privilege is deemed waived in post-conviction proceedings
 or collateral relief procedures, and to provide for certain access of new
 counsel to the files of prior counsel in cases of defendants sentenced to
 death; to add Section 17-27-150 so as to provide the conditions under which a
 party in capital and noncapital post-conviction relief proceedings is entitled
 to invoke the process of discovery; and to add Section 17-27-160 so as to
 provide for the manner in which defendants sentenced to death must file
 applications for post-conviction relief, to provide for the assignment of
 judges to handle these applications, to further provide for the appointment
 and compensation of counsel in these proceedings, and to provide for other
 procedural matters including the certain time limitations in these capital
 post-conviction relief proceedings.-amended title

   01/18/96  House  Introduced and read first time HJ-6
   01/18/96  House  Referred to Committee on Judiciary HJ-7
   04/09/96  House  Committee report: Favorable with amendment
                     Judiciary HJ-5
   04/11/96  House  Objection by Rep. Harrison, Sheheen, Limbaugh, R.
                     Smith, Klauber, Davenport, Mason, Hodges & S.
                     Whipper HJ-17
   04/24/96  House  Amended HJ-475
   04/24/96  House  Read second time HJ-478
   04/24/96  House  Roll call Yeas-80  Nays-12 HJ-478
   04/25/96  House  Read third time and sent to Senate HJ-89
   04/29/96  Senate Introduced and read first time SJ-12
   04/29/96  Senate Referred to Committee on Judiciary SJ-12
   05/15/96  Senate Committee report: Majority favorable with amend.,
                     minority unfavorable Judiciary SJ-16
   05/28/96  Senate Special order SJ-52
   05/29/96  Senate Read second time SJ-81
   05/29/96  Senate Ordered to third reading with notice of
                     amendments SJ-81
   05/30/96  Senate Amended SJ-95
   05/30/96  Senate Read third time and returned to House with
                     amendments SJ-95
   06/12/96  House  Concurred in Senate amendment and enrolled HJ-7
   06/13/96         Ratified R 518
   06/18/96         Signed By Governor
   06/18/96         Effective date 06/18/96
   07/02/96         Copies available
   07/02/96         Act No. 448

AN ACT 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, SO AS TO PROVIDE FOR VERBAL INSTRUCTIONS TO THE JURY CONCERNING DISCUSSION OF THE VERDICT IN ALL CASES IN WHICH A DEFENDANT IS SENTENCED TO DEATH; TO AMEND SECTION 17-25-380, RELATING TO NOTICES OF THE INTENT TO EXECUTE A DEATH SENTENCE, SO AS TO FURTHER PROVIDE FOR THESE NOTICE REQUIREMENTS; TO ADD SECTION 17-27-130 SO AS TO PROVIDE FOR CIRCUMSTANCES WHEN THE ATTORNEY-CLIENT PRIVILEGE IS DEEMED WAIVED IN POST-CONVICTION PROCEEDINGS OR COLLATERAL RELIEF PROCEDURES, AND TO PROVIDE FOR CERTAIN ACCESS OF NEW COUNSEL TO THE FILES OF PRIOR COUNSEL IN CASES OF DEFENDANTS SENTENCED TO DEATH; TO ADD SECTION 17-27-150 SO AS TO PROVIDE THE CONDITIONS UNDER WHICH A PARTY IN CAPITAL AND NONCAPITAL POST-CONVICTION RELIEF PROCEEDINGS IS ENTITLED TO INVOKE THE PROCESS OF DISCOVERY; AND TO ADD SECTION 17-27-160 SO AS TO PROVIDE FOR THE MANNER IN WHICH DEFENDANTS SENTENCED TO DEATH MUST FILE APPLICATIONS FOR POST-CONVICTION RELIEF, TO PROVIDE FOR THE ASSIGNMENT OF JUDGES TO HANDLE THESE APPLICATIONS, TO FURTHER PROVIDE FOR THE APPOINTMENT AND COMPENSATION OF COUNSEL IN THESE PROCEEDINGS, AND TO PROVIDE FOR OTHER PROCEDURAL MATTERS INCLUDING THE CERTAIN TIME LIMITATIONS IN THESE CAPITAL POST-CONVICTION RELIEF PROCEEDINGS.

Be it enacted by the General Assembly of the State of South Carolina:

Citation of act

SECTION 1. This act is known and may be cited as the "South Carolina Effective Death Penalty Act of 1996".

Jury discussion of verdict

SECTION 2. The 1976 Code is amended by adding:

"Section 16-3-21. (A) In all cases in which an individual is sentenced to death, the trial judge shall, before the dismissal of the jury, verbally instruct the jury concerning the discussion of its verdict. A standard written instruction shall be promulgated by the Supreme Court for use in all capital cases.

(B) The verbal instruction shall include:

(1) the right of the juror to refuse to discuss the verdict;

(2) the right of the juror to discuss the verdict to the extent that the juror so chooses;

(3) the right of the juror to terminate any discussion pertaining to the verdict at any time the juror so chooses;

(4) the right of the juror to report any person who continues to pursue a discussion of the verdict or who continues to harass the juror after the juror has refused to discuss the verdict or communicated a desire to terminate discussion of the verdict; and

(5) the name, address, and phone number of the person or persons to whom the juror should report any harassment concerning the refusal to discuss the verdict or the juror's decision to terminate discussion of the verdict.

(C) In addition to the verbal instruction of the trial judge, each juror, upon dismissal from jury service, shall receive a copy of the written jury instruction set forth in subsection (A)."

Notice procedures revised

SECTION 3. 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 Director of the Department of Corrections or his duly appointed officer in charge of the 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 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.'"

Attorney-client privilege waived; access to files

SECTION 4. 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, to the extent necessary for prior counsel to respond to the allegation. 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, to the extent necessary for prior counsel to respond to the allegation.

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 collateral counsel may inspect and photocopy the files, but the defendant's prior trial or appellate counsel shall maintain custody of their respective files, except as to the material which is admitted into evidence in any trial proceeding."

Discovery processes available

SECTION 5. The 1976 Code is amended by adding:

"Section 17-27-150. (A) A party in a noncapital post-conviction relief proceeding 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.

(B) A party in a capital post-conviction relief proceeding shall be entitled to invoke the processes of discovery available under the South Carolina Rules of Civil Procedure."

Capital case post-conviction relief procedures

SECTION 6. 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 judge who has been assigned to hear the post-conviction relief application. This judge shall maintain control over the expedited consideration of the application pursuant to this section. The judge assigned as the post-conviction relief judge must not be the original sentencing judge. 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, two counsel shall be immediately appointed to represent the petitioner in this action. At least one of the attorneys appointed to represent the applicant must have previously represented a death-sentenced inmate in state or federal post-conviction relief proceedings or (1) must meet the minimum qualifications set forth in Section 16-3-26(B) and Section 16-3-26(F) and (2) have successfully completed, within the previous two years, not less than twelve hours of South Carolina Bar approved continuing legal education or professional training primarily involving advocacy in the field of capital appellate and/or post-conviction defense. The Supreme Court may promulgate additional standards for qualifications of counsel in capital post-conviction proceedings. 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 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, provided that Section 16-3-26(I) shall not apply to counsel appointed in post-conviction relief proceedings. 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. Nothing in this section shall preclude an out-of-state attorney from appearing pro hac vice.

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 thirty 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 must be scheduled within one hundred eighty days from the date of the status conference, unless good cause is shown to justify a continuance.

(D) Within thirty days from the receipt of the transcript, or if the judge requests post trial briefs, within thirty days from the receipt of the post trial briefs, 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 subject to a motion for rehearing, a motion to alter or amend judgment, a motion for relief from judgment or order, or any other motion as allowed by the South Carolina Rules of Civil Procedure.

(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."

Time effective

SECTION 7. This act takes effect upon approval by the Governor.

In the Senate House June 13, 1996.

Robert L. Peeler,

President of the Senate

David H. Wilkins,

Speaker of the House of

Representatives

Approved the 18th day of June, 1996.

David M. Beasley,

Governor

Printer's Date -- June 27, 1996 -- S.