Current Status Bill Number:1242 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19960307 Primary Sponsor:McConnell All Sponsors:McConnell Drafted Document Number:gjk\22229sd.96 Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Subject:Effective Death Penalty Act of 1996
Body Date Action Description Com Leg Involved
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Senate 19960307 Introduced, read first time, 11 SJ
referred to Committee
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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.