Why the SC Supreme Court ordered a convicted killer released 16 years early back to prison

It was S.C. Supreme Court Associate Justice John Kittredge who may have unearthed a way to get the South Carolina judicial system out of one of its most embarrassing self-inflicted wounds in years: The supposedly legal and secret prison release of a convicted murderer 16 years ahead of time.

“We need a legal basis or principle that would allow us to invoke authority to undo this. What is that legal authority?” Kittredge asked senior assistant deputy Attorney General Heather Weiss 86 minutes into a 90-minute emergency hearing Wednesday about the legality of Jeriod Price’s release.

Weiss, standing before all five justices, struggled to find a legal rationale to give the high court so it could intervene in one of South Carolina’s most high-profile controversies in recent history.

At the time of the hearing, Price, a convicted killer described as dangerous by law enforcement, was out of prison after a now-retired judge signed an order releasing him from state prison after only serving 19 years of a 35-year murder sentence for killing Carl Smalls Jr. in 2002.

The order — releasing Price from prison 16 years early — was requested by Price’s attorney, state Rep. Todd Rutherford, agreed to by 5th Circuit Solicitor Byron Gipson, and secretly signed by now-retired Judge Casey Manning. No publicly-available record was kept of its existence.

Although Price’s release raised eyebrows and sparked controversy in the state’s legal and law enforcement community, it may well have been legal — or, at the least immune from any legal challenge because of the broad powers given to solicitors and judges.

When Weiss’s answer didn’t satisfy Kittredge, he again told her that if justices were going to order Price back to prison, they needed a legal justification for, first, assuming jurisdiction, and second, taking action.

“We are here to right wrongs, but procedure matters. Getting the case before us in a proper legal vehicle is important,” Kittredge said, speaking slowly and stressing every word. “I’m just trying to find, what is the hook? What is the legal framework or argument that allows us to go back and undo this?”

As Kittredge spoke, Weiss was handed notes from Attorney General Alan Wilson, who had argued earlier, and Bob Cook, one of the state’s top appellate lawyers with the Attorney General’s Office.

The notes referred to “Article 5,” a provision in the state Constitution that gives the state Supreme Court broad authority to issue all kinds of orders and serve as “a court for the correction of errors at law.”

Looking up, a now-confident Weiss told Kittredge, “The legal vehicle is Article 5 of the South Carolina Constitution. It puts you over the integrity of the judgments of the unified judicial system.”

That was apparently the answer Kittredge was waiting for.

He asked another quick question and got an answer. No other justices had further questions. The hearing was over.

Two hours later, acting in rare haste, three justices led by Kittredge issued a majority 3-2 opinion that voided Judge Manning’s Dec. 30, 2022, secret order releasing Price. The ruling also ordered the immediate arrest of Price to be returned to prison “to serve the remainder of his sentence.”

Kittredge was joined by fellow associate justices John Cannon Few and Garrison Hill, a newly installed justice who found himself in the position of being a crucial swing vote in one of the most highly publicized cases before the high court in years.

Chief Justice Donald Beatty and George “Buck” James dissented.

Although the high court has ordered Price to be returned the prison, his whereabouts are unknown. State and federal officials now consider him a fugitive and are actively looking for him. As of press deadline, Price was still not in custody.

Late Friday, Rutherford urged Price to turn himself in.

’Long-term implications’

At Wednesday’s hearing, Hill and Few — who signed on to Kittredge’s majority opinion — went out of their way to highlight laws requiring the state’s courts to be public.

They pointed that Manning’s order was not only issued in secret without a public hearing and no notice to the public, but that there was no record kept of its being issued. At one point in the hearing, Kittredge called the order “a phantom order,” and Hill later deemed it “an underground order.”

The justices’ one-paragraph ruling, also issued Wednesday did not reveal detailed reasons behind the decision, saying a formal explanation behind the ruling would come later.

But the lone paragraph did cite a section of South Carolina law, 14-5-10. That section expressly rules that the state courts of South Carolina are public, and their records “be subject to the inspection of any person.” The paragraph also cited a section of the state Constitution that reads, “All courts shall be public.”

Jack Swerling, a veteran criminal defense lawyer who attended Wednesday’s hearing, said the justices will no doubt deal with numerous matters in their future decision, including open courts and the high court’s jurisdiction.

Among still other issues discussed at the hearing, Swerling noted, were “mandatory minimum” sentences.

It’s a matter that comes into play because Price, also known as Jeroid, was given a mandatory sentence of 35 years at his 2003 trial, meaning he would have to serve all 35 years for shooting and killing Carl Smalls Jr. at a Columbia nightclub as Smalls lay on the ground.

Smalls had played football at the University of South Carolina, then transferred to the University of North Carolina, where he was a student when he was killed.

But Manning, who retired the last day of December due to the state’s 72-year-old age limit, let Price out of prison 16 years early because he had given confidential “substantial assistance” to law enforcement — a controversial exception to mandatory sentence law, according to Price’s lawyer, Rutherford, who told the justices that Price should stay free and that his release was lawful.

That assistance involved, in part, Price’s tip through an intermediary to law enforcement that dangerous convicted kidnapper Jimmy Lee Causey had escaped from prison, which prison officials didn’t know, and enabled the speedy apprehension of Causey, who was serving life sentences. (Causey had kept Swerling’s family prisoner during a 2002 home invasion.)

Rutherford also told the justices that the attorney general had no authority to overrule Manning’s order, and, moreover, putting Price back in prison would amount to a “death sentence” because it is now public to inmates that Price helped law enforcement.

But Weiss said, in response to Kittredge, Price is in no danger because the state Department of Corrections has plenty of measures at its disposal to keep inmates safe.

“They deal with very dangerous situations on a daily basis,” Weiss replied.

Other issues discussed in detail at the hearing were whether Attorney General Wilson had “standing,” or the right to go to court and challenge Price’s release, what precedents any high court decision voiding Price’s release might set, and whether a provision in the state’s Victims’ Rights Act requiring victims to be notified can be ignored in some circumstances.

The multi-sided controversy all adds up to a possibly lengthy future decision by the state Supreme County majority, and an equally long dissent by the two losing justices.

Beatty warned that if the state Supreme Court did intervene in this situation with so many clashing issues, justices might regret unintended consequences.

“Whatever we do today is going to have long-term implications,” Beatty said. “So now, if we are going to twist ourselves into a pretzel to make this come out right, what are we going to do with the next one? We need some framework to put forth for the benefit of the bench and bar that they might be able to follow in future cases like this.”