Journal of the House of Representatives
of the Second Session of the 110th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 11, 1994

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17. Five (5) of the most significant litigated matters in either trial or appellate court:
(a) State v. Emiah Anderson (Jasper County - Judge Floyd). This case was challenging to prove that a father killed his son then raped his daughter because the proof relied on the testimony of a young girl and circumstantial evidence.
(b) State v. Solomon Anderson (Beaufort County - Judge Brown). There was a mistrial because of a hung jury the first time that he tried this case. The case was especially important to law enforcement because a deputy's wife was raped. He was able to prove the Defendant's guilt by the wife's testimony and forensic evidence.
(c) State v. Ernest Williams, Darryl Oliver, Alvin Johnson (Beaufort County - Judge Howard). The Defendants were convicted of safecracking, burglary and drugs. The case was difficult because the defense had four lawyers and many constitutional and evidentiary questions were involved.
(d) State v. Wendell Crosby (Colleton County - Judge Howard). In this case the Defendant was convicted of Felony DUI. It was difficult to prove as there were no eyewitnesses, and the Defendant was paralyzed and had no memory of the wreck.
(e) State v. James McConnell (Dorchester County - Judge Fields). This case was significant to him, because he acted as a special prosecutor outside of his circuit. The Defendant was convicted of reckless homicide.

18. Five (5) civil appeals:
(a) Jasper County Department of Social Services v. William Bostic and Jackie Bostic, In Re: Jack Bostic and Daniel Bostic, Juveniles Under the Age of Seventeen
Ex Parte: Darrell Thomas Johnson, Jr.

The Supreme Court affirmed the lower court in Memorandum Opinion, No. 92-MO-181, filed July 6, 1992.

22. Public Office:
Assistant Solicitor, 14th Judicial Circuit, appointed 1985-1990
Deputy Solicitor, 14th Judicial Circuit, appointed 1990-present

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40. Expenditures Relating to Candidacy:
$224.70; Budget Print; July 1, 1993
This expense was for the printing of resumes, a letter of introduction, and addressed envelopes, which he mailed to each member of the General Assembly announcing his intent to run for judge.

45. Bar Associations and Professional Organizations:
South Carolina Bar Association; American Bar Association; South Carolina Trial Lawyers Association; National District Attorneys Association; Beaufort County Bar Association

46. Civic, charitable, educational, social and fraternal organizations:
USC Alumni Association; Beaufort Yacht and Sailing Club
He has been the Stewardship Chairman, member of the Vestry and Lay Reader at All Saints Episcopal Church in Hampton.

47. His entire professional career has been spent in the courtroom. During this time, he has learned a great deal about trying cases and dealing with people. A part of this was developing the ability to listen well and communicate with others. He has learned that one can command respect without being arrogant. He believes that his ability to treat witnesses, bailiffs, court reporters, spectators, law enforcement officers and lawyers fairly would be his greatest asset as judge.

48. Five (5) letters of recommendation:
(a) Charles A. Laffitte, Jr., President
Palmetto State Bank
P. O. Box 158, Hampton, SC 29924
943-2671
(b) John E. Parker, Esquire
Peters, Murdaugh, Parker, Eltzroth & Detrick
P. O. Box 457, Hampton, SC 29924
943-2111
(c) Randolph Murdaugh, Jr., Esquire
Peters, Murdaugh, Parker, Eltzroth & Detrick
P. O. Box 457, Hampton, SC 29924
943-2111

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(d) James H. Moss, Esquire
Moss & Kuhn
P. O. Drawer 507, Beaufort, SC 29901-0507
524-3373
(e) Perry M. Buckner, Esquire
P. O. Drawer 470, Walterboro, SC 29488
549-9544

The Board of Grievances and Discipline reports that no Formal Complaints have ever been filed against you.

Records of the applicable law enforcement agencies: Beaufort County Sheriff's Office, a negative; the Beaufort City Police Department is a negative; SLED and FBI records are negative.

Judgement Rolls of Beaufort County, a negative. Federal Court Records are negative. No complaints or statements have been received. To the best of my information, no witnesses are present to testify.

With that, I would ask you if you would answer any questions that Mr. Couick has for you at this time. Mr. Couick.
MR. ARMSTRONG - EXAMINATION BY MR. COUICK:
Q. Thank you. Mr. Armstrong, if you can't hear me, if you need anything, please let me know. Do you have a copy of your Personal Data Questionnaire with you?
A. Yes, I do.
Q. You may need to refer to that for a couple of questions that I have. Please briefly describe for the Committee, and I know you've described it in your PDQ, your work experience as an attorney kind of going through the positions that you've held since graduation from law school.
A. Right. Upon graduation from law school, I became a law clerk to the Honorable William T. Howell. I spent a year with him. After that, I became the first Public Defender for Allendale, Hampton and Jasper Counties. They handed me a budget and said here, start it from the ground up and I valued my experience with Judge Howell and working for that year getting to know the people in the Circuit otherwise there is no way I could have set it up.

After that, I had a chance to go with the Solicitor's office arose to work with Buster Murdaugh and I took that advance. I became an Assistant Solicitor with him and I am still with the Solicitor's Office and now serving as deputy solicitor with his son Randolph Murdaugh.
Q. In your experience since graduation from law school, just from listening to your description and from also reading through your Personal

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Data Questionnaire, I would imagine that an overwhelming percentage of your time has been put into the study and practice of criminal law?
A. That's correct.
Q. Obviously, as a Circuit judge, you're called upon to do a number of things that -- while some judges handle more criminal than others, you're called upon to know both civil and criminal law and to deal with such cases of both types. Could you tell the Committee how you would go about equipping yourself to handle both types of cases in the court?
A. I told the people at the South Carolina Bar when they questioned me that initially I would be as good as the other lawyers allowed me to be. If they come into court and they are prepared with pretrial briefs, then I'm going to be a good judge right off the bat. Otherwise, it's going to take a lot of hard work on my part which I'm willing to do.

During my time in the court, I had the opportunity as clerk for Judge Howell to observe a number of civil trials. During the criminal trials, I had to become familiar with all the Rules of Evidence, so I don't think it would be that difficult a transition.

Obviously, I'm not going to be as comfortable right off the bat in civil court as I am in criminal because I have been doing it for a number of years and I don't think there are any basic differences in the running of a trial in criminal court as it is in civil court. You're going to be bound by basically the same rules of evidence and I don't believe there would be any problem in my handling it.
Q. Have you tried -- give me, if you could, just kind of briefly describe the number of civil cases you have tried. You note a civil appeal in your --
A. That's an appeal from Family Court. I have not tried any actual civil cases. I've briefly worked on some forfeiture cases when that came to our office. I have done a number of cases for Family Court and DSS. Until recently, the Solicitor's Office had to represent the Department of Social Services and that's what that appeal is from.
Q. You note on your survey I believe that you have two children?
A. Yes.
Q. And they are, I believe, what, 12 and 14?
A. That's correct.
Q. And I take it that you have some responsibility from time to time for their maintenance and upkeep and just taking care of them?
A. Yes.
Q. I'd like to know would this interfere with your ability to perform the duties of this job?

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A. No, it wouldn't. My wife is a professional. She's a nurse. We share responsibilities real well. On the days that I can't be there to do something for the kids, she is there. On the days she can't be there, I'm there and it's something here in the Solicitor's Office and the Fourteenth Circuit, we have five counties. Until just recently, I covered all those five counties, so traveling and being away and arranging a schedule isn't anything new. It's something that we have worked with.
Q. You heard Judge -- excuse me, Senator McConnell speak earlier to judicial temperament. For the folks that have sat on the bench, there is some way to gauge their pattern, their approach to this because of past performance and through the questionnaires we received comments back and from the two judges that just appeared, they were overwhelmingly positive about their approach to being a judge and the robes didn't weigh too heavily upon them.

It's hard to do that with a person who's a private practitioner because obviously they have to be a zealous advocate. It often brings them into confrontation with other attorneys. Compare your role as an attorney and the things you've had to do as a solicitor and some of the hard approaches you take, but how you would make that transition to being a judge and what you would -- and it might be a different way, to do a different manner?
A. I think being in a Solicitor's Office is very good preparation for being a judge for the simple reason that you're invested with a great deal of discretion and you've got to use that discretion wisely and if you wanted to, you could jerk around witnesses, police officers, defendants.

You have victims' rights groups you must deal with and you have plenty of opportunities to exhibit traits that wouldn't be good for a judge, so you have to learn to balance the interest of everybody you deal with in court whether it'd be scheduling times for witnesses to appear and scheduling time for police officers to appear, whether a bench warrant should be issued, whether a case should be continued.

I think that my strongest asset is being comfortable in court being able to deal fairly with people as they come into court.

I've been fortunate during my time in court to observe some very good judges who did not have Robitis. Judges that come to mind that I would love to model myself after is probably the top would be Richard Field. He's one of the best judges I know for showing that you don't have to be arrogant to command respect. I've worked with other real good judges---Judge Howard. Judge Howard, a new judge relatively new in Charleston. These are all judges that I would like to pattern myself from that you just

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do not have to be overbearing, arrogant to be a good judge and to command respect.
Q. One thing that the Committee and I guess the General Assembly looks for is compassion among judges. They certainly want justice in this day and time when there is so much violence and everything. They certainly want a judge that's going to be tough enough on lawbreakers, but you also want a sense of compassion in a judge.

As a Solicitor or Deputy Solicitor, Assistant Solicitor, you have probably been more often than not on a different side of that issue with a person that's a defendant. How will you approach this issue as a judge? What kind of past experiences have given you an opportunity to develop your sense of compassion?
A. Well, I've seen it from both sides. I've been a public defender representing the interest of people accused of a crime. Of course, now, I'm with the Solicitor's Office. In each side, I've been an advocate, but during my 11 years in court, I've seen pain and human suffering on both sides whether it be the defendants and especially their families as the family members have always suffered and now on this side seeing the pain of victims.

Also in my capacity of representing DSS, I've been in the Family Court seeing families ripped apart for many reasons. So I don't think that anybody cannot develop some compassion to deal with the people that come to court. It's just got to be something within you.

Either you harden your heart and you become a cynic or else you try to go into court every day and at least try to meet the standards of justice, take the considerations of all the parties and you just hope that you are strong enough to meet a reasonable, just standard.
Q. How would you handle the problems inherent in ex parte communications if you were on the bench?
A. Well, I have the advantage of working for Judge Howell and I think it should be a policy that you just do not have ex parte communications with lawyers. If it's on the telephone, like I believe it's Judge Johnson said, you have to arrange a conference call. I just don't believe that it's proper for lawyers to do that.
Q. Let's say I'm practicing law and I come down and really am not in the process of practicing, but I've moved to your area with -- I believe you belong to a sailing club down there?
A. Right.
Q. And you're on the bench and I'm an attorney and we're down there one afternoon watching a football game together or getting ready to go sailing and I just happen to mention, not even a case that I'm involved

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with, but I've got a friend involved in it. What's your response going to be?
A. I'd tell you that I may be hearing that case and I don't want you to say anything about it. I just don't -- you know, flat out tell you. It's just not proper for you to talk about it. Even if it wouldn't influence me, you have to avoid the appearance of impropriety, so I would just ask you to quit.
Q. You've heard me ask the judges earlier what their term of commitment to being a judge. I would take it since you're running for the first time that you probably are committed to filling out this term. Is that the case if you're elected, you plan on serving the full term?
A. That's correct.
Q. How would you manage the docket in your courtroom? How would you make sure that you met the deadlines that seem to get harsher and harsher?
A. We have some experience with that in that we have to deal or I have to deal with criminal court. In our Circuit, our Chief Administrative judge allows the Solicitor's Office to manage the docket of criminal court and now I'm assigned to Beaufort County, we have taken steps to alleviate overcrowding at the roll call to try to space the meetings out so that all the defendants don't come jammed up where we don't have enough space.

I've given them with Solicitor Murdaugh's approval assigned court dates to come back, so they don't have to come sit around in the courtroom the whole time, especially, you know, people who have jobs and, you know, it's tough to get jobs especially down in our counties. We want them to keep them if possible, so we do work with the people down there and we try to come up with a better system.

We're always asking other solicitors, especially other judges. You've been somewhere they do it better. How do they do it? We're not routed to one system. And as a judge, I would not be routed to one particular system.

I would like to ask other judges, you know, how do you do it, how can I make this better, how can we be more efficient. So I would have an open mind and try to meet any problems that arose in that manner.
Q. Not to put you on the spot, but is it -- working with the Solicitor's Office, I would imagine that from time to time, you arrange pleas and then take those pleas before the judge for his sanction before going into court or working things out. What's the proper role of a judge in a case of a negotiated plea and what's the proper role of the solicitor? It seems like at some point, there could be a tendency for those folks to clash because there would be some disagreement. How much leeway or

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leniency are you going to give the Solicitor to establish pleas? I mean what's your role going to be?
A. My role is really to be the final arbitrator, the referee and hopefully impose justice. If someone comes to me and proposes a plea that I don't think is just either to the defense or to the State of South Carolina, I will tell them flat out that I can't accept that plea, that you have to do something else.

You either try the case or come up with a better plea agreement and that is something that we deal with every day. It's -- that's not a very unique situation.
Q. Let's say that that happens on a recurring basis that the Solicitor has made proposals to you and they're consistently too light or too heavy and you're disappointed with the Solicitor's approach to bringing pleas to you, how do you handle that?
A. I don't think it would get to a situation where I would be disappointed. A solicitor is an advocate for the State of South Carolina. The defense is an advocate for his client. They're trying to work out the best deal possible to serve each of their respective needs.

My job is to represent the system of justice and accept a sentence that I think meets what justice demands, so -- because a particular solicitor or defense attorneys keep on coming up with a proposal that I don't agree with, that isn't going to disappoint me. It's just each of our particular roles that we work with. So it's not that I'd be frustrated with them, it'd just be what I could live with.
Q. Would it ever be appropriate for you if there was a consistent pattern of that to be publicly critical of the Solicitor?
A. My policy in my job has always been that I don't try cases in the newspaper. I'm not critical of judges in the newspaper. If I disagree with a judge, I can appeal it, so I -- you don't gain anything by criticizing anybody in the newspaper. That would be my policy as a judge.

If I have a problem with a particular person, I'd call them into my office and talk about it, but I'm not going to go to the newspaper and air out a grievance I have. I just don't believe that's right.
Q. I believe you mentioned in your PDQ that you've not been rated by Martindale-Hubbell; is that correct?
A. That's correct.
Q. There is a -- the Canons are fairly broad in South Carolina in terms of what type of social hospitality a judge can accept from an attorney, but there has been a good bit of legal scholarship written on it particularly by a number of professors at the law school most recently about what a judge can accept from an attorney and there are several classes of attorney.

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They've distinguished one being an attorney that you know on a personal basis that does not appear before you or rarely appears before you. Another is an attorney that appears before you on a regular basis. How are you going to handle that? Where do you drawn the line? Is a lunch okay? Is dinner okay? Is a trip to the beach or sharing a beach house okay? Where does it stop with Judge Armstrong?
A. I think it depends on an individual, personal basis. I don't think you can set a hard and fast rule. If you've been friends all your life or from college or from law school and you have annually made a beach retreat somewhere, I don't believe there is any applicable prohibition in doing that. I think obviously that if you came into court and that person came before you, you would have to disclose it and should disclose it to any other lawyer that came before you. I think that's how you should deal with it, but I don't -- you know, if a lawyer out of the blue that you've never had any social connection with came and wanted to give you a gift, I think it would be improper and I don't think you should take it. So I think you have to judge it on a case by case basis.
Q. Let's say I'm from your county and I appear fairly often, at least once a term, and tend to handle fairly important, substantial cases before you. We've gone to the beach together for years. I own a beach house on Edisto Island and it's my beach house. You come down traditionally even before you go on the bench, once you go on the bench, do you still come or do you still hear my case when it comes up once a term?
A. You're saying I have a -- one of your cases that is coming before me --
Q. Suppose I just practice on a regular basis. I'm -- at least once a term I'm in your courtroom on a fairly important, substantial case and I live there in the county and we've been friends for a while and you've always gone to the beach with me, but now there is a little bit of a change in circumstances?
A. Right. I think you have to make that disclosure and if anybody raises a question about it or if I think deep down in my heart I couldn't be fair, then I think I would have to recuse myself just to avoid the appearance of any impropriety.
Q. What kind of burden does that put on the other attorney to have to raise that issue in your courtroom of recusal?
A. I don't think it places an undue burden on an attorney. I mean when lawyers come into your courtroom, they're advocates and they're representing their client's interest and they have to do what they think is right for their client.
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After full disclosure, if I think deep in my heart that I can adequately give both sides a fair trial, you know, the other side doesn't, then I think you would have
to to avoid the appearance of impropriety. You would have to recuse yourself, but I don't think that puts an undue burden on an attorney. Nothing that they don't have to deal with every day.
Q. Have you made a motion for recusal in your practice?
A. No, sir.
Q. I just wonder -- just wondering aloud with you, not that there is any hard and fast approach to it, but an attorney comes in, makes a motion for recusal and then has a substantive case that obviously has to follow that motion, aren't you somehow questioning whether that judge is approaching this case in the right manner and that he somehow doesn't carry an additional burden with him that might impede his decision?
A. I don't think so because I think I would just recognize that it's his role. I mean he has to do it especially in these days and times, you have to cover all your bases, satisfy your client that you're adequately looking out for your client's interest, so that's just part of the job. I don't think you would hold it against that lawyer for making a motion for recusal. I mean it's not personal, it's business.
Q. I'm reading from an article that a Professor John Freeman. You may even know Professor Freeman. And he had three rules. He suggested that the ethical problem of conflict and conduct when accepting a gift ought to be determined by a judge answering three questions. Would I do it in front of my mother? How would this look on the front of the daily news -- front page of the daily newspaper? And his last one is, if I'm nominated for a high federal position and scrutinized by the Senate Judiciary Committee, what will any Senators who oppose my nomination be able to make of it.

With those same three questions in front of you, assuming that your mother is not bothered by it and that The State paper doesn't circulate down in Colleton County, what is the answer to the third one? I mean what's likely to happen? I mean is it something that can be made of that, you would go to the beach during the summer with an attorney that practiced before you on a regular basis?
A. I don't think so. I think as long as you take it on a case by case basis, that you're honest with yourself and you're honest with the people that appear before you in court, then I wouldn't be ashamed to tell any screening committee. You know, I don't think it would be a problem. If it was, I certainly wouldn't do it.

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