The Volokh Conspiracy
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Secret Order Releasing Convicted Murderer
From State v. Price, decided Sept. 6 by the South Carolina Supreme Court but posted on Westlaw in just the last two weeks:
Price was convicted of murder in 2003 and sentenced to thirty-five years in prison…. The parties inform us Price began serving his sentence on December 23, 2003, and remained in prison until March 15, 2023. On that date, the Department of Corrections released Price pursuant to an order signed by now-retired circuit court judge L. Casey Manning on December 30, 2022.
There is no official record of the events that led to Judge Manning signing the order releasing Price from prison. It appears, however, that in February 2022, attorney J. Todd Rutherford—counsel for Price—contacted Solicitor Byron E. Gipson of the Fifth Judicial Circuit about reducing Price's sentence pursuant to section 17-25-65 of the South Carolina Code (2014). In mid-December 2022, Rutherford and Solicitor Gipson began exchanging emails with drafts of an order. According to Rutherford, he and Solicitor Gipson met privately with Judge Manning in late December in the judge's chambers. The Richland County "Case Management System Public Index" does not reflect that this meeting occurred, and there is no indication the meeting was recorded or transcribed. The victim's family was not notified of any of these events.
On December 30, Judge Manning signed two documents. The first document, entitled "ORDER REDUCING SENTENCE," provides,
This Matter comes before this Court by Defendant, through his undersigned attorney, J. Todd Rutherford, who petitions this Court to Reduce the Defendant's Sentence: The Court finds the following facts to exist in this case:
- That the Defendant was convicted of Murder … on December 19, 2003 and came to the South Carolina Department of Corrections on December 23, 2003.
- That the Defendant was sentenced to a sentence of thirty-five years in prison by The Honorable Reginald I. Lloyd and has served approximately nineteen years to date.
- Upon motion of the Solicitor in accordance with S.C. Code Ann. § 17-25-65.
- An account of Defendant's cooperation is contained in an addendum attached to this Order.
THEREFORE, IT IS ORDERED that the sentence be reduced from thirty-five years to nineteen years.
The second document states only, "Order sealed this 30th day of December of 2022," without identifying the "Order" being sealed.
It appears Judge Manning placed both documents in a sealed envelope, signed his name across the seal, and wrote the date "12-30-22" on the exterior of the envelope. At an unknown point in time, the envelope was delivered to the clerk. The envelope bears no indication it contained an order or that the contents of the envelope related to any particular case. Neither the envelope nor the documents inside it have ever been file-stamped nor bear any other indication either of them were filed with the clerk of court. As of April 19, 2023, the public index contained no entry for any order subsequent to the clerk of court receiving this Court's remittitur from our decision in Price's direct appeal on May 9, 2006.
It is not known how the Department of Corrections obtained the order, but the Department released Price from prison on March 15, 2023. Before March 15, as far as we can tell, the order was known to exist only by Rutherford, Solicitor Gipson, Judge Manning, and [another] circuit judge ….
Press accounts of Price's release began surfacing on April 17. On April 18, the Attorney General filed a motion in circuit court asking the order be unsealed for the preliminary purpose of allowing his office to review it. On April 19, Solicitor Gipson wrote the Chief Justice of this Court—with Rutherford's written consent—asking that the Court "release and unseal the Order." Also on April 19, Solicitor Gipson issued a press release in which he conceded, "An official Motion to Reduce the Sentence, pursuant to 17-25-65, was never filed …." In the same press release, Solicitor Gipson requested "that this matter be reopened by the Court in order to ensure that all statutory rights and procedures are followed correctly."
The state supreme court reversed the release order, concluding that the trial judge didn't follow the proper procedures in deciding to release Price (you can read more on that here); and it also concluded the trial judge shouldn't have "conduct[ed] a closed hearing or seal[ed] the 'ORDER REDUCING SENTENCE'":
Article I, section 9 of the South Carolina Constitution provides, "All courts shall be public …." Section 14-5-10 provides, "The circuit courts herein established shall be courts of record, and the books of record thereof shall, at all times, be subject to the inspection of any person interested therein." The First Amendment—as "recognized" by the Supreme Court of the United States—protects a public "right of access to various aspects of a criminal prosecution." …
The following comments from the Supreme Court of the United States were made in a different factual context, but they are no less relevant here:
The knowledge that every criminal [proceeding] is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.
In re Oliver (1948). Then quoting Jeremy Bentham, the Oliver Court stated,
[S]uppose the proceedings to be completely secret, and the court, on the occasion, to consist of no more than a single judge,—that judge will be at once indolent and arbitrary: how corrupt soever his inclination may be, it will find no check, at any rate no tolerably efficient check, to oppose it. Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account….
We have attempted on numerous occasions to make clear to the public, to the bench, and to the bar that the sealing of any part of a court record is a serious matter requiring lawful authority and specific findings of fact that justify the sealing…
Turning to the proceedings in this case, Judge Manning made no attempt to determine whether the law permitted any portion of the proceedings to be closed to the public…. To overcome [the] presumption [of openness], the party seeking to close any proceeding must present evidence supporting the closure, and the court considering closure must make specific "findings which explain the balancing of interests and the need for closure of the proceeding" ….
As to Judge Manning's attempt to seal the "ORDER REDUCING SENTENCE," we begin by making clear that even if there were lawful authority to seal a portion of the record here, and even if there were a sufficient factual basis to support sealing a portion of the record here, the order itself should never have been sealed…. In an appropriate case, if there is legal authority and a sufficient factual basis, the circuit court may issue an order sealing a portion of a court record. But the act itself—the order of the court—must never be sealed unless specifically permitted by statute. See, e.g., S.C. Code Ann. § 17-30-100(C) (2014) (mandating that orders authorizing interception of electronic communications must be sealed); S.C. Code Ann. § 63-7-2600 (2010) (requiring sealing of "all court records" related to termination of parental rights). Without such specific statutory authority, an order of the court "shall, at all times, be subject to the inspection of any person interested therein."
Here, however, there is no authority to seal anything….
{At oral argument, counsel for Price argued it was necessary to seal the information underlying the decision to release Price from prison "to protect the identity of someone that was still in the Department of Corrections in recognition that telling the world—including the victims in this case—what happened and who was involved, that it would put his life in jeopardy." While we are sensitive to these concerns, the criminal justice system confronts situations on a regular basis in which confidential informants, cooperating codefendants, and other witnesses provide information that will put their lives or safety at risk when their cooperation is discovered by those implicated. We are certain the General Assembly was aware of this concern when it enacted section 17-25-65, yet the General Assembly chose not to address the concern.
We find Price's alleged cooperation with the State documented in the materials submitted to Judge Manning does not differ in any significant manner from the same type of cooperation that becomes public on a regular basis in other cases. We are confident that to the extent any such concern for the safety of a cooperating inmate arises in the future, the State, counsel for the inmate, and the circuit court may effectively deal with that concern without sealing any portion of the record….}
The court also concluded that the trial court proceedings violated the state Victims' Bill of Rights, though that was not an independent basis to set aside the order.
Two Justices dissented, concluding that the sentence reduction shouldn't have been vacated, but all the Justices agreed that the sealing was improper. Justice James's dissent also explained why Price's sentence may have been reduced:
Price was convicted of murdering Carl Smalls in 2003 and was sentenced to thirty-five years in prison. His conviction was affirmed by this Court in 2006. While in prison, Price allegedly assisted the South Carolina Department of Corrections (SCDC) in three particulars. The record shows the State relied upon all three in requesting the circuit court to reduce Price's sentence from thirty-five to nineteen years.
First, according to an unsigned addendum attached to the circuit court's order, Price alerted SCDC at some point that a fellow inmate had escaped from prison and been on the run for three days.
Second, an SCDC inmate swore by affidavit that he saw Price rescue a correctional officer from serious injury or death after the officer was attacked by several other inmates. There is no affidavit from the officer who was attacked.
Third, a former correctional officer swore by affidavit that another correctional officer told her Price had rescued the other officer from harm after being attacked by an inmate. This affidavit is rank hearsay, and there is no affidavit from the officer who was supposedly attacked. These three accounts—an unsigned addendum, an affidavit from an inmate, and a hearsay affidavit—convinced the State to request a sentence reduction. Perhaps the State investigated the accounts to verify they were true. While the truth of Price's alleged heroics is not before us, their suspect veracity is perhaps one reason for the State's regret over choosing to ask for a reduction….
Senior Assistant Deputy Attorney General Heather Savitz Weiss represents the state.
