Georgia prosecutors brought Alexander Hunsberger to trial less than two years after taking custody of the murder and kidnapping defendant. But prosecutors in South Carolina spent a decade preparing to try Hunsberger for virtually the same case.
Finding that prosecutors were to blame for at least eight years of the “extraordinary delay,” a divided South Carolina Supreme Court on Oct. 12 dismissed the state’s murder case against Hunsberger and reversed earlier rulings from the Court of Appeals and Edgefield County Circuit Court.
The juxtaposition between what happened in Georgia and South Carolina “showed exactly how simple the case was” and proved “critical,” said Hunsberger’s appellate defender, Susan Hackett of Columbia.
She convinced a majority of the state Supreme Court that prosecutors had violated Hunsberger’s right to a speedy trial. The opinion relies heavily on the court’s 2012 decision in Langford, which declared unconstitutional a state law – a law unlike any other in the country – that gave solicitors control over calling criminal cases to trial.
The court viewed the law as a separation-of-powers violation that was ripe for abuse. The South Carolina Public Defender Association had argued in Langford that solicitors used their control over the trial calendar to delay weak cases and force defendants to languish in jail for years, essentially serving out sentences before having their day in court.
“I’m delighted that the court has acknowledged Langford and has articulated, to a greater extent, parts of that concept of a speedy trial in South Carolina,” Columbia criminal defense lawyer Joseph McCulloch said in reaction to Hunsberger. “We needed that elaboration.”
McCulloch serves on a committee that former Supreme Court Chief Justice Jean Toal created to help establish a new system for managing the state’s criminal trial docket in the wake of Langford. Toal was an architect of the solicitor-controlled docket law when she served as a state legislator, though she joined the Langford majority in ruling that the same law was unconstitutional.
Toal had issued an administrative order with Langford that laid the groundwork for a judge-controlled docket system. But she froze the order after solicitors balked and instead called together the committee.
McCulloch said about a year has passed since the group gave the court “very solid suggestions and insight into the various problems and what we thought could be various solutions,” but he has heard nothing in response.
Presumption of prejudice
Hunsberger’s trial judge and the Court of Appeals ruled that he failed to show that the substantial delay in his case had affected his fair trial or due process rights, largely because he was jailed in Georgia during much of the wait.
The lower courts also asserted that Hunsberger might have benefitted from the decade-long wait as it allowed him to cross-examine and impeach witnesses with their earlier testimony and because the state decided against seeking the death penalty prior to his trial.
But Supreme Court Chief Justice Costa Pleicones, who wrote the majority decision, determined that Hunsberger was not required to “show actual prejudice in order to prevail in his speedy trial claim.”
Instead, Pleicones found that the lower courts should have considered the presumptive prejudice that Hunsberger experienced while awaiting his long-delayed trial.
“This was where our brief spent the most attention and where oral argument spent the most attention,” Hackett said. “The amount of prejudice the defendant has to show is inversely related to the reasons for the delay and the length of the delay. And if there has been some sort of intentional or bad faith delay then the presumption of prejudice is automatic.”
While the decision does not establish the minimal length of delay necessary to trigger presumptive prejudice, Pleicones wrote that three years “meets the threshold requirement for a speedy trial claim.”
McCulloch applauded the opinion as being helpful to the defense bar, saying that in South Carolina “presumptive prejudice from the passage of time without action has been largely ignored.”
“There are intangible prejudices that don’t lend themselves to proof,” he added. “This is the first case that has articulated that in a meaningful way.”
In her dissent, Toal, who retired last year but continues to serve as an acting justice, agreed with the lower courts’ rulings that the delay was more advantageous than detrimental to Hunsberger’s defense.
She also rejected with the majority’s decision that “the mere passage of time is enough to find prejudice in this case.”
Attempts to speak with the state Attorney General’s Office about the case were unsuccessful.
‘We weren’t coercing him’
Prosecutors attempted to justify the delay in Hunsberger’s trial by asserting that his case was complex because it involved a crime that crossed state lines and he was eligible for the death penalty.
But Pleicones categorically rejected the state’s justifications, concluding instead that prosecutors intentionally dragged their heels in an attempt to “coerce” Hunsberger into testifying against co-defendant Steven Barnes.
Barnes, the alleged leader of a robbery and prostitution ring in Georgia, was accused of orchestrating the kidnapping and murder of Samuel Stirrup. The crime began in Georgia and ended in South Carolina, where Stirrup was gunned down in a field. Barnes allegedly fired the fatal shot.
The Supreme Court reversed Barnes’ conviction in 2014, finding that he was denied his constitutional right to represent himself at trial. Pleicones wrote the majority opinion with Toal dissenting.
Concluding that prosecutors were more focused on convicting Barnes than bringing Hunsberger to trial, Pleicones said the purpose of the right to a speedy trial “is not served when the constitutional right of a low priority defendant is sacrificed in hopes that defendant will help the state in a higher priority trial.”
Eleventh Circuit Solicitor Donald Myers prosecuted Hunsberger. He denied that he had purposely delayed the trial.
“We weren’t coercing him,” Myers said. “We never talked with Mr. Hunsberger. We talked with his lawyers and his lawyers never had any problem from what I remember.”
Hunsberger made his first motion for a speedy trial two years after his 2002 arrest. The trial judge declined to release Hunsberger at the time, but told the state to be ready to go to trial during a special session scheduled for early 2005. Prosecutors later rejected the date and the judge granted Hunsberger bail. He was subsequently extradited to Georgia, where he was convicted of kidnapping in connection with Stirrup’s death and sentenced to life in prison.
Asked why it took South Carolina about five times longer than Georgia to try Hunsberger, Myers said: “I have no idea. But mainly it’s because we had a death penalty on Barnes. That had something to do with it.”
But Pleicones flatly rejected that assertion, writing in the decision that there was “simply no evidence that the State was actually debating the capital decision” during the eight years that passed between Hunsberger’s first speedy trial motion and his trial.
The 23-page decision is State v. Hunsberger (Lawyers Weekly No. 010-078-16). A digest of the opinion is available at sclawyersweekly.com.
Follow Phillip Bantz on Twitter @SCLWBantz