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FILED SEP 06 2018 JAMES R. PARKS, IN THE STATE, he OF SOUTH CAROLINA Geni tare GANS JURY IN RE: STATE GRAND JURY ) MOTION FOR DISCLOSURE OF INVESTIGATION NO. 2016-257 ) GRAND JURY’S REPORT ) Introduction The State of South Carolina, by and through its lawfully designated prosecutor, David M. Pascoe, Jr., respectfully moves the Honorable Clifton Newman, Presiding Judge of the State Grand Jury, for an Order permitting public disclosure of the Report of the Twenty-Eighth State Grand Jury (hereinafter, the “Report”). ‘The South Carolina State Grand Jury Act grants broad authority to the State Grand Jury to issue reports. The grand jury is the people’s panel. Understanding the vital importance of informing the people in a democratic society regarding the performance of public officials entrusted with governance, the Twenty-Eighth State Grand Jury issued a Report exposing vulnerabilities in our political system and making recommendations to address these issues. The grand jury seeks public disclosure of the Report to provide the citizens of this State with important information in accordance with this State’s policy in favor of open government and to end public speculation about this investigation. The undersigned firmly believes that the greatest ‘weapon against corruption and incompetence in government is transparency. Indeed, public exposure may be the only true deterrent to public corruption. Discussion ‘On May 9, 2018, the Twenty-Eighth State Grand Jury voted in favor of directing the First. Circuit Solicitor's Office, as the designated prosecutors for Investigation 2016-257, to draft a report detailing the grand jury’s findings and conclusions upon completion of its two-year investigation. Pursuant to Section 14-7-1650 of the South Carolina Code of Laws Annotated, the designated prosecutors drafted and presented the Report to the grand jury for input and approval. Thereafter, on June 21, 2018, as their final official act after two full years of service to the State of South Carolina, the members of the Twenty-Eighth State Grand Jury voted unanimously to approve the Report. In addition to its findings and conclusions regarding Investigation 2016-257, the Report included a final directive to the prosecutors of the First Circuit, in their capacity as legal advisors to the grand jury: The grand jury strongly believes that the interest of the State of South Carolina will be best served through public disclosure of this report and calls upon the State to release this report at the soonest possible opportunity. Report at I. The Report was filed under seal at the request of the State as a precautionary measure. However, there is no longer any compelling reason for the Report to remain under seal. The State respectfully asks the Court grant the State Grand Jury’s request and release the Report to the public. The South Carolina State Grand Jury Act (the “Act”), S.C. Code Ann. §§ 14-7-1600, ef sseq., authorizes the issuance of grand jury reports. Pursuant to Section 14-7-1650(A), the State is obliged to “draft indictments and reports upon the direction of a state grand jury.” (emphasis, added). The Act does not mandate automatic sealing of indictments or reports and places no restrictions on the contents of the Report. In drafting the Report at the grand jury's direction, the designated prosecutors relied on the plain language of the Act, guidance from our State Supreme Court in defining the contours of public disclosure under the Act, and the common law practice of grand jury presentment made applicable to the Act through Section 14-7-1640. Based on these foundations, the instant Report preserves the interests of due process and grand jury confidentiality by submitting the Report for public disclosure only after the underlying favor of ongoing secrecy are no longer present and the Report is a matter of the utmost public importance. ' ‘The Court in Evans identified the interests necessitating grand jury secrecy by reference to the federal grand jury system, noting, First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but ‘exonerated by the grand jury will not be held up to public ridicule. Evans, 363 S.C. at 506, 611 S.E.2d at 516 (quoting U.S. v. Sells Eng’g, Inc, 463 U.S. 418, 424, 103 S.Ct. 3133, 3138 (1983). As applied to the instant investigation, none of the concerns articulated by the Supreme Court are present. The grand jury has reached its conclusions with respect to all subjects of the investigation and has either issued indictments or recommended further legal process and legislative action. Unlike the provisions of the South Carolina Code of Laws governing county grand juries, the State Grand Jury Act specifically grants statutory authority to the State Grand Jury to issue reports. S.C. Code Ann, § 14-7-1650(A). This grant of authority to issue reports is a tacit recognition of the grand jury’s role to report on matters of public concern, and the Act does not place any restriction on the grand jury’s duty to report or limitations on the public disclosure of a ' This is consistent with other provisions of the State Grand Jury Act that recognize the importance of public disclosure. Indeed, the Supreme Court recognized the limits of secrecy at the outset of the instant investigation in Pascoe v. 415 S.C. 643, 785 S.E.2d 360 (2016). During a dispute over the undersigned’s authority to initiate this investigation, the Court denied a motion by the Attomey General to seal the briefs, rescinding its prior directive to hold arguments regarding the State Grand Jury's jurisdiction or ancillary matters in camera. See Ex parte Harrell v. Attorney Gen, of State, 409 S.C. 60, n.11, 760 S.E.2d 808, 814 (2014), abrogated by Pascoe, AIS S.C. at 644, 785 S.E.2d at 361. investigation has concluded and by ensuring that the findings of the Report are not mere accusations but are instead a presentation of the grand jury’s recommendations to pursue further legal process. The Report includes relevant evidence and testimony to support those recommendations in the interest of disclosing matters of great public concem regarding public officials of this State, The secrecy of grand jury materials is not absolute and disclosure is permitted in a number of circumstances. This is particularly true after the State Grand Jury takes action pursuant to Section 14-7-1650(A) by issuing indictments or reports. Indeed, the presumption is against sealing such official action. In Evans v. State, 363 S.C. 495, 611, S.E.2d 510 (2005), the Supreme Court examined the boundaries of the grand jury’s cloak of secrecy as it relates to impanelment documents, ultimately concluding that the secrecy provisions of Section 14-7-1720 are not absolute and that after the grand jury has issued its indictments, those secrecy provisions are relaxed. Id, at 507, 611 S.B.2d at 516. (“The secrecy provisions applicable to a particular case are relaxed after an indictment has been issued by the state grand jury.”). The Court further noted that the State Grand Jury Act must be read as a whole, and “{rJemoving the veil of secrecy after a defendant has been indicted is consistent with the legislative intent expressed in Section 14-7- 1770 and the Act as a whole.” Id, at 504, 611 S.E.2d at 515; see also, S.C. Code Ann. § 14-7- 1770 (“{rJecords, orders, and subpoenas relating to state grand jury proceedings must be kept under seal fo the extent and for that time as is necessary to prevent disclosure of matters occurring before a state grand jury.” (emphasis added)). Concerns that typically mitigate in final report. This broad reporting authority is consistent with the expanded subject matter jurisdiction of State Grand Juries over crimes involving public corruption. It is also consistent with the policy of this State favoring transparency and disclosure—particularly as it relates to the courts and the conduct of public officials in the performance of their public duties. See, ¢.8., S.C. Const. art. I, § 9 (“All courts shall be public. . . .”); S.C. Code Ann. § 30-4-15 (“The General Assembly finds that it is vital in a democratic society that public business be performed in an ‘open and public manner so that citizens shall be advised of the performance of public officials. . . 7 Prior to the enactment of the State Grand Jury Act, the South Carolina Supreme Court examined a document issued by the Greenville County grand jury that was referred to as its “final presentment.” State v. Bramlett, 166 S.C. 323, 164 S.B.2d 873 (1932). The Court in Bramlett recognized a county grand jury’s duty to inform the public. Because there was no statute authorizing county grand juries to issue such documents, the Court examined the grand jury's common law powers to report on those accused of unlawful conduct and concluded the presentment could be published, as long as its contents included matters for which the grand jury recommended further legal action. See id, at 323, 164 S.E.2d at 876. The presentment in Bramlett was a report on the grand jury’s conclusions during its term and concemed matters relating to official misconduct charges against the Greenville County sheriff stemming from the sale of seized bootlegging automobiles without accounting for the proceeds. However, two days prior to issuance of the grand jury's presentment, the solicitor nolle rossed one of the indictments against the sheriff with the intention of submitting new indictments at a later date. Id. at 323, 164 S.E.2d at 874. Thus, at the time it was issued, the report contained: (1) information relating to the sheriff's embezzlement of public funds, for which there was no indictment nor a recommendation that an indictment be issued in the report; (2) information relating to the sending of personal telegrams that were paid for by the sheriff with public funds, for which the report recommended legal action be taken; and (3) information relating to the disappearance of witnesses, for which indictments had been issued against other individuals. Id, at 323, 164 S.E.2d at 876, ‘The Court in Bramlett permitted the report in modified form. Where the report contained facts for which an indictment had already been issued or facts that are “followed up with the recommendation that proper legal steps be taken to correct this practice[,]” those facts are properly included in the grand jury's report. Id. Thus, even if the Act did not grant statutory authority to issue reports to the State Grand Jury, it is still vested with reporting authority pursuant to the common law of Bramlett, ‘The Report of the Twenty-Eighth State Grand Jury was issued with the Court’s guidance in Bramlett in mind even though that decision is inapplicable due to the statutory authority granted by the Act. The Report itself was not drafted until the investigation had concluded and the grand jury was in a position to make its recommendations as to any subjects not already indicted. The primary actors in the underlying investigation have been indicted, and their inclusion in the Report is proper. The majority have entered guilty pleas, and the two remaining defendants arising from the investigation are not discussed in the report in any material way. With respect to the corporate subjects, the findings of the Report recommend action. Corporate Integrity Agreements have been reached and the State believes it is imperative that the Report and the agreements be released at the same time. The remaining portion of the Report contains findings and conclusions regarding matters of great public interest involving the initiation of their investigation and contains specific recommendations regarding legislative action. Conclusion ‘The State Grand Jury Act expressly authorizes issuance of reports and the contents of the Report fall squarely within the statutory and common law matters grand juries have been permitted to address in prior reports. The findings and conclusions contained in the Report are supported by indictments or recommendations for official action in response to the reported conduct. Silencing the State Grand Jury by quashing its findings or sealing its contents is inconsistent with the weight of legal authority and would be an affront to our constitutional commitment to open courts. The State submits that full disclosure is necessary to the production of a complete and accurate report. For these reasons, the State respectfully requests the Presiding Judge issue an order permitting public disclosure of the Report of the Twenty-Eighth State Grand Jury. Respectfully submitted by, David M. Pascoe . First Circuit Solicitor September 6, 2018 Orangeburg, South Carolina.