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Pascoe v. Wilson

Supreme Court of South Carolina

July 13, 2016

David M. Pascoe, Solicitor of the First Judicial Circuit, Petitioner,
v.
Alan M. Wilson, South Carolina Attorney General, Respondent. Appellate Case No. 2016-000671 David M. Pascoe, Solicitor of the First Judicial Circuit, Petitioner,
v.
James R. Parks, Clerk of Court for the State Grand Jury, Respondent. Appellate Case No. 2016-000630

          Heard June 16, 2016

         IN THE ORIGINAL JURISDICTION

          David M. Pascoe, Jr., of Orangeburg, pro se Petitioner.

          C. Mitchell Brown, of Nelson Mullins Riley & Scarborough, LLP, Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Solicitor General Robert D. Cook, Assistant Deputy Attorney General Samuel Creighton Waters, all of Columbia, for Respondents.

          DECLARATORY JUDGMENT ISSUED

          PLEICONES CHIEF JUSTICE

         We agreed to hear these cases in the Court's original jurisdiction. The cases arise out of an on-going South Carolina Law Enforcement Division ("SLED") investigation into the past conduct of certain members of the General Assembly (the "redacted legislators"). Petitioner David Pascoe ("Pascoe") asks this Court declare "the Attorney General" recused himself and his Office from the redacted legislators matter, and vested Pascoe with the legal authority to act autonomously as the designee of the Attorney General with the powers of that Office. Pascoe further asks this Court command respondent James R. Parks ("Parks"), clerk of the state grand jury, to cooperate with Pascoe's initiation of the state grand jury investigation. We grant the petition for declaratory relief and declare that respondent Attorney General Wilson ("Wilson") and the Attorney General's Office were recused from the redacted legislators investigation; Pascoe lawfully sought to initiate a state grand jury investigation; and the Attorney General's Office's purported termination of Pascoe's designation was not valid. Recognizing the integrity of the parties involved, we decline to formally issue relief in the mandamus action, confident that our resolution of the declaratory judgment action makes clear the responsibilities and roles of the parties.

         FACTS

         As these cases are being heard in the Court's original jurisdiction, we sit as the fact-finders.[1] The burden of proof as to all issues rests with Pascoe.[2] On July 24, 2014, Wilson appointed Pascoe to serve as the "designated prosecutor" in the investigation and prosecution of Robert Harrell ("Harrell").[3] At the time of Pascoe's appointment, Harrell was being investigated for alleged crimes committed in his capacity as a legislator. A SLED report generated during the Harrell investigation contained the redacted names of certain legislators (the "redacted legislators"), who were allegedly implicated in unethical and illegal conduct.[4]

         On October 1, 2014, Pascoe sent Wilson an email referencing a discussion they had the night before, and stating he believed the redacted legislators should be investigated as part of "any corruption probe on the legislature."

         On October 2, 2014, Wilson emailed Chief Deputy Attorney General John McIntosh ("McIntosh") with Pascoe's email attached.[5] In his email to McIntosh, Wilson stated, "As this office moves forward with this investigation there might be inherent conflicts between myself and members of the house . . . . Because certain conflicts might exist I want you to take over as supervising prosecutor. . . . Please ensure that I am firewalled from any involvement in that specific instance. . . ." By email the same day, McIntosh accepted the designation as supervising prosecutor. McIntosh further assured Wilson that per his wishes, Wilson would be firewalled from any involvement in the matter.

         It is unclear from the evidence before this Court whether the initial Harrell investigation led to further investigations beyond that of the redacted legislators. The exhibits before this Court further do not contain any indication the Attorney General's Office itself investigated or pursued the redacted legislators matter after October 2, 2014, although later correspondence discussed infra indicate SLED was conducting an ongoing investigation after that date into these individuals. The correspondence between Wilson and McIntosh appear to be internal, and there is no evidence the content of the emails was made available to Pascoe or anyone outside the Attorney General's Office. The exhibits reflect the next communication regarding the redacted legislators matter was in July 2015.

         On July 17, 2015, McIntosh wrote a letter to the Chief of the South Carolina Law Enforcement Division, Mark Keel ("Chief Keel"), asking he forward the SLED report resulting from the investigation into the redacted legislators to Pascoe "for a prosecutive decision." The letter further stated, "As you are aware, the Attorney General recused this office from the legislative members in the redacted portions of the SLED report but has not recused this office from any other matters" (emphasis supplied). From this language, we conclude that SLED may have been investigating matters related to the Harrell probe aside from those involving the redacted legislators.

         Chief Keel has provided an affidavit to this Court to the effect that his understanding of the July 17, 2015, letter was that the Attorney General's Office had thereafter recused itself from any involvement in the redacted legislators matter, and that SLED was to deal exclusively with Pascoe. Chief Keel further states that in accord with his understanding, after the July 17, 2015, letter, he and SLED in fact dealt exclusively with Pascoe in the matter, and at no point was any information or evidence concerning the redacted legislators investigation shared with the Attorney General's Office.

         On July 24, 2015, McIntosh's July 17, 2015, letter was forwarded to Pascoe by Assistant Deputy Attorney General S. Creighton Waters ("Waters") as a scanned attachment to an email. Also attached to the Waters email was a scanned letter from Waters to Pascoe, stating:

As you are aware, several months ago the Attorney General firewalled himself from any involvement into the investigation of certain individuals covered in the still-redacted portion of the SLED report. . . . That portion of the investigation still remains open. . . . I am writing to let you know that out of an abundance of caution, [McIntosh] sent [Keel] a letter . . . asking that agency forward to you the results of any further investigation. . . .

         The body of the email further stated Pascoe and SLED were to make the decision regarding whether redacted portions of the SLED report should be released to the media. This July 2015, correspondence notifying Pascoe he had been granted authority over the redacted legislators matter also informs Pascoe that the Attorney General's Office was recused.

         On July 27, 2015, Pascoe responded to Waters' email, stating:

I will probably give you a call later today or in the morning for some clarification, but my understanding from the two letters you sent me[6] is that the Attorney General is asking that I make a prosecutorial decision on the redacted matters of the SLED report. . . . I assume further investigation was conducted on the redacted matters that I am not privy to as of yet. I may also need to conduct further investigations into those matters.

         Given the status of the individuals who were the subject of this investigation, and the fact that it arose out of the state grand jury investigation of then Speaker Harrell, it may be inferred that further investigation into the redacted legislators matter at some juncture might warrant the impaneling of a state grand jury.

         We have no evidence of communication between Pascoe and anyone at the Attorney General's Office from July 2015 to September 2015. However, by mid-September 2015, the exhibits reflect disharmony between Pascoe and individuals in the Attorney General's Office, apparently precipitated by media leaks regarding the redacted legislators investigation, and the fact that Solicitor General Cook had been in contact with an attorney representing one of the redacted legislators.

         On September 17, 2015, McIntosh sent Pascoe a letter noting the Attorney General's Office had possessed the SLED report containing the redacted legislators' names for two years-indicating the report was generated during the Harrell investigation-and that no portion thereof was leaked until after Pascoe was asked to make a "prosecutorial decision." The letter then states, "[D]uring the past ten months, there has been considerable discussion back and forth between this office and law enforcement, in which additional questions have been raised. The length of the inquiry has thus necessarily been prolonged by these additional questions." The letter concludes with a reminder that the public must have confidence in the integrity of the criminal process, and that the public should have full disclosure of all redacted information in the SLED report at the earliest appropriate time.

         A number of questions are raised by McIntosh's September 17, 2015, letter. Principally, the nature of the Attorney General's Office's ten month "inquiry" is unclear, though exhibits indicate the Attorney General's Office may have been conducting a separate investigation related to information contained in the Harrell SLED report, but unrelated to the redacted legislators matter.

         On September 25, 2015, Pascoe responded by letter to McIntosh, writing:

I ask that your office not interfere in this investigation any further unless I ask for your assistance. . . . [I]t is my understanding from my discussions with SLED that your office conducted no further investigation into the matters after my October 1, 2014 email. . . . The Attorney General's Office has a very clear conflict of interest in this matter. If the public is to have confidence in the integrity of the criminal process in this case, it is imperative that the Attorney General's Office recuse itself. . . . [Y]our letter does nothing but heighten my concern that the Attorney General's Office continues to work behind the scenes in an investigation for which you claim a conflict of interest (emphasis supplied).

         On September 27, 2015, Cook emailed Pascoe. In that email, Cook stated he was "stunned" at the contents of Pascoe's September 25, 2015, letter to McIntosh. Cook then stated:

[W]e all understood perfectly well that the Office had no role in the [redacted name] matter. [McIntosh] and I had discussed sending it to you since you were already involved in Harrell. Our concern was the integrity of the process, (so why would we interfere in that decision afterwards?) The [Attorney General], as Chief Prosecutor, always retains authority over the integrity of a criminal investigation even in a matter in which he is not involved (emphasis supplied).

         Cook concluded, "I don't know how I or we were interfering with your investigation or decision . . . . I am offended that you think I would interfere in your case" (emphasis supplied).

         From this exchange, it appears the common understanding was that Pascoe had full control of the redacted legislators matter to the exclusion of the Attorney General's Office. Cook's email suggests the Attorney General's Office's sole concern was the "integrity" of the investigation-ensuring no one involved was leaking information to the media. Protecting "the integrity of the process" appears to be Cook's justification for communicating with the attorney representing one of the redacted legislators.

         On September 30, 2015, McIntosh wrote Pascoe a letter stating there was no basis for suggesting the Attorney General's Office was "interfering with [Pascoe's] investigation" (emphasis supplied), and further asserting:

I also take exception to your statement that the Attorney General's Office has a very clear conflict of interest in this matter. I am unaware of any conflict which I have, but out of an abundance of caution, the specific portions of the SLED report regarding the interview with [redacted name] were referred to you for handling as you deem appropriate. I also take exception to your statement that the Attorney General's Office continues to work behind the scenes in an investigation which you claim a conflict of interest. I can assure you that this office is not doing any such thing. . . . (emphasis supplied).

         This exhibit represents the first instance anyone in the Attorney General's Office "take[s] exception" to the unequivocal representations made in the July 2015, correspondence that the Attorney General's Office was recused due to a conflict of interest. While the September 30, 2015, letter denies the assertion that the Attorney General's Office has a "very clear" conflict of interest, McIntosh seems to base this on his personal lack of an actual conflict. Further, the letter does not state that the Attorney General's Office is not recused. Moreover, the letter goes on to state the entire case had been assigned to Pascoe for "handling as [he] deem[ed] appropriate."

         By October 21, 2015, the tension appears to have dissipated as evidenced by an email from Pascoe to Cook. In the email, Pascoe referenced a meeting he had that day with McIntosh and Cook, and stated, "I am very grateful that you recommended we sit down and discuss our issues. As it turns out, we have no 'issues' and we are on the same page. . . . " Nothing in the email or subsequent communications indicate what was discussed at the meeting, or what the mutual understanding entailed. The email further requested advisory opinions[7] on two issues related to the redacted legislators investigation.[8]

         On December 11, 2015, Cook emailed Pascoe the Attorney General opinion covering the issues "as thoroughly as possible." There is no indication in the exhibits filed with this Court of any further communication between Pascoe and the Attorney General's Office until March 2016.

         In February 2016, having determined in conjunction with Pascoe that a state grand jury investigation into the redacted legislators matter was necessary, Chief Keel sent a SLED agent to the Attorney General's Office to obtain templates for a state grand jury initiation from SLED Lieutenant Pete Logan ("Lt. Logan"), whose office was located within the state grand jury division of the Attorney General's Office. According to an affidavit by Robert E. Bogan ("Bogan")-a former prosecutor at the Attorney General's Office and assistant to Pascoe in the investigation of the redacted legislators matter-Bogan called Lt. Logan on or about February 12, 2016, to "get the format of the state grand jury initiation paperwork." Bogan asserts he did not disclose to Lt. Logan the subject of the investigation, only that he was assisting Pascoe. Bogan claims Lt. Logan assumed which ...


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