At least since Sir John Fortescue wrote De Laudibus Legum Angliae, arguing for justice against tyranny and setting forth the proposition of ‘innocent until proven guilty’, a concern for justice has been seen as the touchstone for the legitimacy and proper functioning of government and its legal system.

In like manner, justice and the search for truth in the American legal system has long been espoused.

In a landmark 1986 decision in Nix v. Whiteside, the U.S. Supreme Court held unanimously “the right to have counsel present all appropriate defenses does not extend to using perjury, and that an attorney’s duty to a client does not extend to assisting a client in committing perjury.”

The court, referring to an earlier decision in Strickland v. Washington, further held “In Strickland, we recognized counsel’s duty of loyalty and his ‘overarching duty to advocate the defendant’s cause.’ Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.  Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.  This principle has consistently been recognized in most unequivocal terms by expositors of the norms of professional conduct since the first Canons of Professional Ethics were adopted by the American Bar Association in 1908.”

In Bulloch v. United States, 1985, the court stated “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”

Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.

The videotapes of the August 6, 2000 traffic stop and arrest of James Spencer were important evidence and the main problem for the defendants in the lawsuit Southern Holdings et al. v. Horry County et al.

From the very beginning of this case, there was a virtual game of ‘keep away’ with the tapes by the defendants from the plaintiffs.

As early as August 14, 2000, Spencer’s defense attorney and former Horry County Solicitor Ralph Wilson issued subpoenas for “all Horry County police videotapes recorded at the scene on August 6, 2000 and the Horry County Dispatch recordings made on August 5, 2000 and August 6, 2000. The subpoenas required the “protection and preservation of all the actual, original subpoenaed videotapes and audiotapes in custody of Horry County.

Wilson never received these subpoenaed tapes. Instead, he was notified by, then, Horry County Police Chief Goward that SLED had confiscated the original audiotapes and videotapes and, therefore, Horry County could not provide them for inspection.

In a letter dated April 19, 2004, SLED Special Agent Michael Prodan states, “the State Law Enforcement Division does not have, nor ever had possession of the original videotapes or audiotapes of the arrest of James Spencer on August 6, 2000.”

Horry County police officer Jay Brantley, one of the officers involved in the August 6, 2000 incident, gave two differing explanations of what he did with original videotapes.

During a May 11, 2004 deposition, Brantley testified he kept the original videotapes until he turned them over to the Horry County Police Evidence room on August 19, 2003 – one day after he learned he would be required to provide a deposition in the case.

However, in a February 6, 2007 sworn affidavit by Brantley, he claimed, “When this litigation began, I looked through the half dozen or so tapes in this drawer and the tape containing the traffic stop at issue in this case was one of those tapes. I provided this original tape to my attorneys at the Aiken, Bridges law firm.”

So the misrepresentations and contradicting statements regarding evidence in the case began early.

The defendants’ lawyers and officials from SLED got into the act after Cain’s evaluation of the videotape copies.

On October 27, 2004, defendants’ attorney Robert E. Lee took to Cain’s laboratory what he represented as the three original videotapes and the recorder used by Brantley.

In an affidavit submitted to the court for the Southern Holdings case, Cain stated, “On October 28, 2004, before the actual examination of the three videotapes began and after I described the use of exemplar videotapes to authenticate the videotape as an original recorded by a specific recorder, defendants’ counsel Lee unexpectedly took the videotapes he had just delivered to me and left the laboratory. I was informed by Lee that he would return with the videotapes…as soon as he took care of an unexpected situation that had developed in South Carolina that required his immediate presence.”

When he returned to South Carolina, Lee told Danny Parris, Senior Litigation Consultant for the S.C. Budget and Control Board, about the authentication process.

On November 23, 2004, Danny Parris, Senior Litigation Consultant for the State Budget and Control Board wrote to Major Mark Keel of SLED concerning the tapes.

The Parris letter concludes with the following statements:

“As you are aware, the Budget and Control Board does not wish to be placed in a position of defending criminal actions or apparently paying off victims of abuse if such has occurred. The original tape of the stop is in the possession of our defense attorney, Robert E. Lee of the Aiken Bridges Firm in Florence. The tape was given directly to him by the sheriff’s department.”

“If at all possible, we are asking for SLED to take possession of the tape to use your expertise in determining if the tape has in fact been altered.”

There is a differing version of what happened when the tapes returned to South Carolina provided by plaintiffs’ attorney Michael Goldberg in a letter to Judge Bryan Harwell, dated December 3, 2004.

Goldberg speaks of a telephone conversation he had with defendants’ attorney Jay Saleeby: “I have now been told by Mr.Saleeby that SLED has confiscated the videotapes and plans to have the FBI conduct an analysis of the tapes.”

However, Glenn Elliott, attorney for the Hartness defendants, gave this description of the FBI’s involvement in the case in a response to the court: “the initial report of expert Steve Cain was the first time any of the defendants were aware that the plaintiffs believed and/or were going to allege that one or more of the videotapes from the cars involved in the stop and arrest of plaintiff Spencer had somehow been altered or erased. Attorney Lee reported this allegation to John Weaver, attorney for Horry County…as a result of this allegation of public corruption attorney Weaver and/or others associated with Horry County and the other defendants determined that the South Carolina Law Enforcement Division (SLED) should be advised and asked to look into this allegation…when Horry County reported these allegations to SLED it determined that it should look into this matter and it immediately requested that it be provided with the videotapes in question. Shortly thereafter, SLED determined it did not have the technical capability to analyze the videotapes and as a result it requested the FBI to analyze the videotapes.”

As noted on a SLED Chain of Custody report for the tapes, Andrew Bethea of SLED received the tapes from Lee on November 30, 2004. On the same day, the tapes were turned over to Capt. David Caldwell of SLED with the notation “for shipment to the laboratory for examination.”

The tapes were sent to the FBI with a cover letter from Capt. Caldwell to Kerry Haynes, FBI Engineering Research Facility Investigative Technology Division, Quantico, VA.

Caldwell’s letter of December 15, 2004, states, “Judge R. Bryan Harwell of the U.S. District Court has ordered that SLED deliver to the FBI the three (3) enclosed VHS videotapes for the purpose of examination to determine if they have been altered or edited.”

The order Caldwell’s letter refers to is Court Order 127, issued by Judge Harwell on December 10, 2004 and the letter was worded to make it sound like an order from the judge even though Caldwell took possession of the tapes 10 days prior to the order with the notation “for shipment to the laboratory for examination.”

The FBI’s own regulations prohibit the agency from conducting forensic tests on evidence for civil cases unless the federal government is a party in the suit. The federal government was not a party in the original Southern Holdings lawsui

t.On April 13, 2007, Saleeby, in a response to the court, stated, “In late 2004, pursuant to the Order of this Court, Herold analyzed 3 videotapes sent to the FBI by SLED in order to determine whether or not the tapes had been intentionally edited or otherwise tampered with. Thus, should the Court permit Steve Cain to testify, Herold’s testimony will be crucial to rebut it.”

Three weeks later, during a May 4, 2007 motions hearing, Judge Harwell addresses his supposed order to send the tapes to the FBI: “Mr. Herold (FBI) was not, to my knowledge, a 706 court appointed expert. I signed a consent order (127) that the lawyers gave me, that basically dealt with shepherding these tapes around, and that was in 2004. I don’t know whether y’all intended it to be a 706 expert, but I don’t think this order designated him a 706 court-appointed expert.”

Harwell knew of this misrepresentation as early as 2005. On February 16, 2005, Lee sent a letter to Harwell in which he stated, “As directed by Order of the Court, enclosed is a copy of the report issued by the Federal Bureau of Investigation dated February 9, 2005 regarding the videotapes at issue in this case. This report is being sent to you in accordance with the Order issued by the Court.”

To put the final nail in the conspiracy and fraud in the cover up, Saleeby agrees with Judge Harwell’s statement, making this his third, contradictory, material representation on how the tapes got to the FBI.

Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.