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BAR RESOLUTIONS: Dillon County, Chesterfield County, Marlboro County, Darlington County

2. Positions on the Bench:
Circuit Judge, Fourth Judicial Circuit; elected to term beginning June, 1984 to June, 1988; reelected to term beginning July, 1988 to June, 1994

The Board of Commissioners on Grievances and Discipline reports that no Formal Complaints of any kind have ever been filed against you. The Judicial Standards Commission has no record of reprimands against you. The records of the applicable law enforcement agencies: the Marlboro County Sheriff's Office, a negative; Bennettsville City Police Department, a negative; SLED and FBI records are negative.

The Judgment Rolls of Marlboro County are negative. Federal court records show no judgments or criminal actions against you. There was one civil rights action brought against you and others. Our information

Part of what has come out of that is this general sense that some folks think that -- and I say some folks. Folks that are quoted in newspapers or whatever think that for whatever reason you have a special relationship with a particular class of folks in South Carolina, public officials namely, that causes you to be called to sit on these cases for some special reason. And that because of that you are either directed by some higher authority or by some higher calling that you have to take care of their interest.

And I say that because I know that it comes up in some complaints that we're going to hear later, but it also comes from many of these newspaper articles.

What can you tell this Committee about your impression of why you are -- is it just an inordinate amount of times you're called upon to handle these cases or is it just that yours tend to be treated more in the newspapers than anybody else? What's caused this level of notoriety about the cases that you handle?

As a result of that, I'm one of the judges close to there and I've been sent there to handle these cases. And I -- most of the cases to which you refer arose in Horry County and the basis for that is the judges there frankly recuse themselves.
Q. For what reason do they recuse themselves? What is your understanding of the reasons they recuse themselves?
A. Well, for instance, I tried and convicted -- a jury convicted an auditor there of 37 years. I would suggest probably that a resident judge has had a friendship with that individual for many years.

I was a trial judge when the detention center man was charged there. I could understand why the resident judge would not have done that. And those sort of cases where there was some personal or professional reason or whether they were in the court house would be the reason that I would suggest that.

For instance, in my county when my supervisor was recently charged with a matter, I recused myself. And that's the basis, I think.

With regards to the public officials that have been before me, I have given some probation. I have fined some, I have put some on public service. I've done all three. I've incarcerated some. As a trial judge, some have been found not guilty by the jury, and as trial judge, some have been found guilty.

Just recently, I directed a verdict of not guilty because I concluded under the facts of the law that that direction was warranted, so I guess I've had some significance cases.
Q. Judge, I'm not attempting to give more attention to this off base -- I mean off the bat because there are other things I'd like to address, but one thing that comes through in the complaints is this sense that there is some improper behavior on either your part or someone else's part in your participation in these cases.

I've tried to in my own way analyze it and I come up with one of three things is happening and I need your help. These folks either say it's bad because you go there with some nefarious purpose, that you've got some special relationship with these folks that are to be sentenced and that you're either instructed to handle it by some higher authority or you have some special reason for handling it.

Or perhaps you're just weak on public officials in terms of your sentencing and there is no real ethical problem that you have with that, but

I'm trying to figure out where in that -- one of those three camps we end up and I'm looking for you to assist me. I mean do you have any special sentencing philosophy that applies to public officials that puts you in that second camp that would --
A. Well, I appreciate your concerns. I really do. First let me say that with regards to the public officials that I've sentenced in Horry County and we must discuss Magistrate Archie Lee, to my knowledge, I'd never seen him at that time. I have never seen him since. Again, I sentenced Mr. Ball who was the auditor there. I sentenced him to three years in jail. I never knew him before and never seen him since.

The judge does not call the cases in this state. The Solicitor calls the cases and when I'm assigned by the Chief Justice of this State, I accept cases that the Solicitor calls and why the Solicitor calls them before me, I don't know. But I accept my responsibility when the case is called. Does that answer your question?
Q. Part of it. And that's -- I'm glad you went into that aspect of it because it certainly helps me break it down. When you were in those cases, when the Solicitor called that case and you're sitting there on the bench and one judge as you said earlier has probably already recused himself, did anyone make a motion including the Solicitor that you should be recused from hearing this case because of some special relationship with --
A. No motion has ever been made by any solicitor for me to recuse myself. And I say to you categorically upon my honor that no special relationship ever existed and in most instances, I didn't even know the individuals until I got to court. I assure you of that, sir.
Q. So as I said I've got three things I'm trying to figure out. One is that you fall into Camp 1, one in Camp 2, one in Camp 3 --
A. If you take them one at a time, I'll be glad to answer.
Q. And --
A. I'm frankly glad that you raised these issues.
Q. Right. And Camp 1 is that you have a special relationship and for that reason that's why these things happen and you addressed that. You said that you had no special relationship in terms of knowing them or some other connection and that no motion for recusal was made?
A. Yes, sir.

Does your sentencing philosophy for whether it be first time offenders or second time offenders or third time offenders who happen to be public officials differ at all from your sentencing philosophy for a first, second or third time offender if they were not a public official?
A. It does not. I apply the same criteria. Perhaps I'm a little more harsh with the public officials in that where they violated a public trust, I look at it very seriously. For instance, the auditor there of 38 years, the gentleman I think was maybe 66 or 67 years old, I incarcerated that gentlemen for three years. I was criticized very heavily by his friends. I felt it appropriate.

On another case, I sentenced a SLED agent to three years. That sentence was subsequently reversed by the Supreme Court, but I felt that justice dictated that. So I -- that -- I have no special philosophy about it except I generally hold a public official to a higher accountability.
Q. And, Judge, so if you don't fit in the first camp or the second camp -- and I'm not trying to reach a result.
A. I understand.
Q. I'm just trying to understand. It would be then that these folks are not given any special treatment because of a relationship you have with them nor are they are given a special treatment because of your status, they're treated just the way anybody else is? That's --
A. There is no question about that. You've got to let the sentence fit the crime, you've got to let it fit the defendant and we've got to look at

Let me say this to you, if I may during the course of nine and a half years, I suspect that I have sentenced and do sentence about 1500 people a year, which would equate to something like ten to fifteen thousand during the nine and a half years and I would suggest to you that of that number, few victims and no defendants agreed with me. I'm sure of that. But I did my best using the judgment and applying that judgment to the law of the case, walked out of that courtroom with a clear conscious. I didn't always maybe do the right thing, but I did what I thought was right and I accept responsibility for those judgments.
Q. Judge, I'm from the country and I'm kind of simple minded, but I want to keep my three camps going. What I want to do is not only get you to address it in this format because it makes it easy for me to understand, but also the witnesses that come before this Committee?
A. Yes, sir.
Q. If we -- if you don't -- if Number 1 doesn't apply because there's no special relationship and you didn't go down there with a purpose in mind and Number 2 doesn't apply because --
A. Let me correct you, I didn't go down there. I was sent there on a regular scheduling order by the Chief Justice.
Q. Right. Yes, sir. And Number 2 doesn't apply because you don't treat public officials more leniently as a class than anybody else, then we end up in this third which is what you called fair that everybody is treated the same. If that is the case, it would seem then that if we would look at your overall sentencing pattern for everyone else as compared to these folks, it should fairly well approximate each other?
A. I think so.
Q. If the facts of the situation are roughly the same?
A. I believe that you will find that that's the case.
Q. What I would like for you to do, if you could, at this moment, and particularly with the Archie Lee situation is without -- I know that a judge's discretion is sacrosanct and I do not mean to question you. If you could briefly tell me once again, though, what's been reported widely the reasons for your sentencing of Judge Lee at this level and if you could roughly compare it without even giving a name of another defendant or if -- or with some type of guideline that may be out there that you would think would show that it was a fair sentence?

On the other hand, the courtroom was full of people who were urging leniency for Magistrate Archie Lee. Among those urging leniency was the former sheriff of Horry County, Junior Brown; the present chief deputy, all of his female employees, a niece of his wife, a former magistrate, a former municipal judge and all his neighborhood urging leniency and why were they urging leniency? First, he was 65 years of old -- of age, suffering from glaucoma and heart problems. He had immediately resigned when this unfortunate incident came to light and thusly had been publicly humiliated and ridiculed. He stood before me a broken man.

Testimony was that his wife had been invalid for 14 years and she couldn't even drive a car. It was uncontradicted that while his conduct was bad in other areas that as to that good lady, he was the only one to stay with her at night. He did the cooking and he did the grocery shopping. And his -- and that lady's niece stood before me in tears and said to me, Judge, there is nobody to take care of my aunt if you put Archie Lee in jail.

Now, I considered these factors and I considered what he did. I also considered alternative sentencing. I concluded that if we believe truly in the concept of alternative sentence, here was a man who posed no danger to anybody in his lifetime, had been publicly humiliated. I then came gave him three years. I suspended it. I placed him on probation for one year. I gave him 400 hours of public service. I fined him $500 and I ordered that he accept mental health counseling. My judgment was on the facts before me that that was fair to the victims, it was fair to the defendant, it was fair to society.

Permit me to add one further thing, since that sentence, I have examined it in the context of the sentencing guidelines that this Legislature will be considering in January. The sentence that I gave would have been indicated under those guidelines. Knowledgeable people tell me under the federal guidelines that probation would have been indicated. I can assure you without equivocation that the present presentencing guidelines would have mandated probation. I have no qualm with anyone who feels different. It was a judgment call made with the best judgment that I had and I stand by it quite frankly. Understanding that these people have an emotional involvement, I understand their opinion, I accept their judgment. I have no fault with it whatsoever. I just respectfully disagree under the facts of that case.
Q. Judge, making sure --

Now if I may say one further thing, I strongly considered giving him 90 days at the Detention Center and letting him go home at night. I was concerned about his safety. Many of those people out there would have been before him and sentenced by him and I just wasn't going to put that 65-year-old man in that situation. That was another consideration, I'd have to tell you. I was concerned about the safety of a former judge incarcerated in the system. And I apologize for talking too long.
Q. No problem. I'm glad to hear what you had say. Judge, have you ever had occasion to sentence someone in a similar situation where there was a repeated pattern of this type of conduct and the person was not a public official?
A. I have never had a case like this, Mr. Couick.
Q. So there is no way that we could draw an analogy --
A. No, sir.
Q. -- of your sentencing?
A. Let me say this and the record will reflect, now I was appalled at his conduct and embarrassed for him and the judiciary. I was. And the record will reflect that. I never had this situation before. No, sir, I have not confronted that sort of thing.
Q. Judge, making sure I understand, you mentioned the sentencing guidelines. It's my understanding that there are certain factors that you take into account when you locate on the grid where a person would fall?
A. Yes, sir.
Q. I want to make sure I understand how you would go through your reasoning. If -- is it true or not true that Judge Lee would have not had any previous convictions?
A. Yes, sir. Thank you. First, let me say that while as to these victims, this would have been a violent imposition upon them, these were nonviolent cases. Judge Lee had never had a prior conviction. He had an exemplary civic reputation. He was chairman of the Democratic Party.

I wish I could say, Mr. Chairman, he was also the chairman of the Republican Party, but he was not. Never had he had a prior conviction.

Criticism has made me a better person, I think, and I think it will make me a better judge. I have no problem with that, but I am not going to skirt my duty as a judge of this state because of criticism. It's what I do.

It's a judgment call and I made it and you know, as I have indicated, I don't call these cases. I hope that they call them because someone thinks I'm competent to handle them. I can only hope. But that's the basis for it.
Q. Judge, I had noted for the other candidates that were here today that we had sent questionnaires to your home circuit and asked the members of the bar there to respond to several questions. We did receive some commentary back from members of your Circuit and I will say that some of those did say that you were too harsh in sentencing as opposed to too lenient.
SENATOR SALEEBY: I'll ditto that.
Q. You'll ditto that.
A. I've been criticized for that, too.
SENATOR SALEEBY: My boys say he puts them away too long, but I don't reckon it disqualifies him.
Q. Judge, what is your continued commitment to serving on the bench? How much longer do you plan to serve if you're reelected?
A. I fully intend health permitting, and I'm in excellent health, to serve my entire time. My mandatory date of retirement ends at the end of this coming six-year term, so Mr. Saleeby and his friends hopefully will have to look at me for the next six years. I enjoy my work and I love it and I'm dedicated to it.

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