Published Thursday, May 08, 2008 1:24 PM
Updated Thursday, May 08, 2008 6:31 PM

 

Scott’s calls from jail released

The scope of the sights and sounds available from State Sen. Randy Scott’s driving under the influence arrest was expanded this week when a judge ruled recordings of calls made by Scott from jail could be released.

During a hearing in Greenwood on Tuesday, Circuit Judge James Williams dissolved the temporary restraining order he issued last Friday. That order had essentially blocked The Post and Courier from publishing the recordings, even though the newspaper had obtained them from the Dorchester County Sheriff’s Office through the Freedom of Information Act (FOIA).

Sheriff Ray Nash said he was told by his office’s legal advisor, Jerry Finkel, that the recordings would be discoverable, like the videos showing Scott in custody that were released last month.

“He advised me that there was no legal basis for not releasing them and we should release them without delay,” Nash said.

“It would have been wrong not to release them,” he said.

In the meantime, the recordings surfaced on at least two political blogs.

“The judge agreed the tapes could have conceivably already been disseminated around the world,” said John Kerr, attorney for The Post and Courier.

Kerr said he understands why Williams issued the order last week.

“He wanted to be careful and ensure he had a chance to gather the facts,” Kerr said.

Kerr said Williams had to perform a “balancing act” between the First and Sixth amendments, which protect the freedom of the press and a defendant’s right to a fair trial, respectively.

“The judge has a duty to balance those two Constitutional rights because one does not have precedence over the other,” Kerr said.

Williams applied a three-pronged test to whether the recordings should be released, Kerr said. Williams had to determine if the release of the recordings would produce pre-trial publicity that couldn’t be mitigated in other ways, Kerr said.

There are ways to mitigate the publicity, Kerr said, including voir dire, the process of questioning potential jurors to weed out those with possible bias.

“We knew it was an uphill battle because the tapes had already been leaked,” Scott’s attorney Robby Robbins said. “I think that is ultimately what he (Williams) hanged his hat on.”

Robbins said he argued before Williams that the recordings should not be released because Scott was not advised of how they would be disseminated afterward. He also contended that the taping of the calls was wrong because it violated Scott’s right to spousal privilege.

“It’s appalling that the sheriff would be taping calls between a man and his wife, particularly when that man is incarcerated,” Robbins said.

“Quite frankly, what a husband says to his wife while he’s behind bars is none of the public’s business,” Robbins said.

Scott, who is up for re-election in the June 10 Republican primary, was stopped April 19 after deputies reported seeing him driving erratically. He spent the night in jail and was released on a personal recognizance bond the next morning.

While in custody, Scott made seven calls — five to his wife Amanda and two to Gina Sams, senior administrative assistant to Dorchester County Council, Robbins said.

In one call, there’s an exchange between Scott and his wife on whether it would be appropriate for Magistrate Michael Londergan, a relative of Scott’s, to come to the jail and conduct a bond hearing.

“He will be in trouble though,” Amanda says.

“He will not,” Scott replies. “All he’s got to do is set — he’ll have to set bond for everybody here. He’ll have to work a little bit.”

Amanda asks if she should tell Londergan to “come on down” to the jail.

“You damn right,” Scott says, raising his voice. “I mean, I’ve been waiting in this damn jail and he’s trying to call [Magistrate Penny Merriman]. He’s got to set bond for everybody. But (expletive), he could get me out of this damn jail if he could get off his lazy (expletive). He don’t want to do nothing.”

During the conversations, Amanda says she tried to call Merriman as well as Chief Magistrate Glenn Stephens and Magistrate Tera Richardson.

“All them damn magistrates and I can’t get none of them,” Scott says at one point.

During a call made around 5:45 a.m., Amanda tells Scott she will chat with him later.

“What you going to chat with me about?” Scott asks.

“A lot,” she says. “A lot of things.”

“Tell me,” he says.

“No. We’re being recorded, you know,” she says.

Scott laughs quietly.

“I’m a little bit smarter than you,” she says. “A lot.”

Scott was twice unsuccessful in reaching Amanda from his holding cell telephone, so he called Sams and asked her to call Amanda and advise her to answer a line in the Scotts’ garage, Robbins said.

When Scott tells Sams he’s in jail during one call, she says, “Oh my god.”

Sams asks Scott, “Are you okay?” She later asks again, “Are you okay?”

“Oh yeah,” Scott says. “Thank you for tonight too. Okay, just call her for me, okay? I appreciate it.”

Robbins says despite “very slanderous allegations” made on political Web sites, Scott was “thanking her (Sams) for helping him out with the calls.”

“She (Sams) was nowhere near Randy that night,” Robbins says. “She was with her family.”

Scott and his legal team maintain that the arrest was politically motivated.

If Nash’s actions weren’t politically motivated, he would have given Scott’s defense team an opportunity to object to the recordings being released, Robbins said. But Nash didn’t do that, he said.

Robbins said Scott’s legal team made both oral and written requests to Nash that the recordings not be released until a hearing could be held before a circuit court judge.

Nash said he provided Scott’s lead attorney Reese Joye with a copy of the calls last Wednesday and released the recordings to the Post and Courier and Stender and Associates the next day because he had “no legal grounds to deny the (FOIA) requests.”

“They can say it’s politically motivated but that doesn’t make it true,” Nash said.

“My motivation is not political,” he said. “My motivation is making sure justice is served. We didn’t create these circumstances.”

Nash said every call made from the jail is recorded. The automated disclaimer heard by both the caller and the recipient says the call “will be recorded and subject to monitoring at any time,” meaning there is no expectation of privacy, Nash said.

Contact David Berman at 873-9424 ext. 214 or dberman@journalscene.com