by LAURA HUDSON || Intrigued by the article published on November 13 entitled “Special Treatment for Lawyer-Legislators Is Subverting Justice in SC,” I elected to do a deeper dive into the phenomenon of the legislative branch taking over the judicial branch in South Carolina. The selection of judges in our state has become little more than a gravy train for legislators, their family members, their law partners and friends.
Let’s start with the manner in which Circuit Court, Administrative Law Court, Master’s in Equity and Family Court judges are chosen: South Carolina is one of only two states which allows the legislature to choose judges (Virginia is the other).
This process starts with the Judicial Merit Selection Commission, created in 1996 by constitutional amendment. This commission is peppered with legislators, defense attorneys and recently one non-attorney with a crime victims’ background who currently is the district director for U.S. Representative William Timmons.
Members include Senate appointees Senator/ attorney Luke Rankin, Ronnie Sabb, Tom Young, private attorney Pete Strom and non-attorney/ former victims’ advocate Hope Blackley Logan. House appointees are Representative/ attorney Murrell Smith, Todd Rutherford and Chris Murphy. Other House appointees are private defense attorneys Andrew Safran and Lucy McIver. Note that all members are defense attorneys except one and that six of the ten are legislators.
There is no prosecutor, no law enforcement representative, no Attorney General and no average citizen on the Judicial Merit Selection Commission … even though all of these people, one would think, represent important stakeholders in the criminal justice system.
Oh, there is a Citizens’ Review Committee in the geographic region where the candidate would preside if selected. But that committee is appointed by … guess who? The legislator from that region!
Two current legislators’ wives are on the Circuit Court (and one husband is currently on the Merit Commission), one recently retired legislator’s son was just appointed to the Circuit Court and there are many former Senators, Representatives, law partners, etc. in judicial positions throughout South Carolina.
Such cronyism should have no place in the selection of judges in our state.
(Click to view)
(Via: Travis Bell Photography)
More on this process: After candidates express interest in a judgeship, evaluations are conducted by the Commission. Once these evaluations are completed, the commission drafts a report to the General Assembly detailing its findings. This report qualifies only three candidates of the commission’s choosing as being “fit” for judicial service. The report becomes final forty-eight hours after it is published, at which point the candidates may openly seek support from members of the General Assembly.
After receiving the list of approved judicial candidates, the Senate and House of Representatives hold a joint session wherein they elect a judge to fill the vacancy from the “fit” candidates. The House, being more numerous than the Senate, has the most influence in the outcome of an election.
At the county magistrates’ court level (where 85 percent of cases are heard) the Senator in that county makes the sole selection. The Governor is supposed to approve these choices, but by tradition, has little input.
This process has not gone totally unnoticed by members of the General Assembly: One bill (S. 250) introduced by Senator Mia McLeod would stipulate that a person may not be elected or appointed to a judicial office that is filled by election or appointment of the General Assembly if that person is an immediate family member of a sitting member of the General Assembly, or a former member of the General Assembly whose most recent term of legislative service ended less than one year prior to the General Assembly’s election or appointment of the office in question.
Certainly, a laudable start.
Another bill (S. 561) introduced by Senator McLeod proposes that the Judicial Merit Selection Commission change its process for nominating candidates by releasing a full list of qualified candidates to the legislature not just three candidates of its choosing.
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(Via: Travis Bell Photography)
Yet another bill (S. 562) by Senator McLeod – cosponsored by Senators Mike Fanning and Katrina Shealy (above) dares to require members of the General Assembly who are licensed attorneys practicing law in the courts of the state to recuse themselves from voting in all Judicial elections!
None of the three bills have had any debate or seen any movement in the legislature …crickets!
A good start down the road to reform would be to undertake a major expansion of the Judicial Merit Selection Commission to include all stakeholders in the judicial system – including prosecutors, the Attorney General, a representative of the Governor’s Office, law enforcement, crime victims and private citizens.
A similar inequity exists in the Sentencing Reform Oversight Committee that recently produced a one-sided slate of bills (all stalled in Committees or on the House and Senate floors) last legislative year without the benefit of all the stakeholders. No legislation affecting the criminal justice system should be considered without the early input of all those affected.
How does this ongoing cronyism affect the average citizen who appears before our justice system? It gives lawyer-legislators on both the Sentencing Reform Oversight Committee and those on the Judicial Merit Selection Commission a decided “leg-up” in the courts. Judges whose position is controlled by legislator-attorneys are fearful of ruling against those attorneys in court.
Here is one example: A handsome 17-year-old man, DaVon Capers, was hungry for a hamburger after a ball game between Dutch Fork and Lexington High schools in 2014. Capers stopped at the Cookout restaurant on Main Street in Lexington – where he was stabbed and bled to death.
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(Via: Rutherford for S.C. House)
His attacker was represented by Representative Todd Rutherford (the House Minority Leader and a member of both the Judicial Merit Selection Commission and the Sentencing Reform Oversight Committee).
The young 19-year-old accused murderer was placed in his home with an ankle monitor and restrictions, which he violated, but was not sanctioned by a Lexington judge. Before trial was set, Rutherford had not one, but two “Stand Your Ground” hearings … both of which he lost. Trial was set for two years later in 2016 which resulted in a hung jury. The lone dissenting juror stated she “didn’t want such a young man to spend most of his life in prison.”
The solicitor, Rick Hubbard, stoically resolved to retry the case and Judge “Bubba” Griffith of Greenwood set a date certain for the next year, trying to work around Rep Rutherford’s schedule in the General Assembly. This is becoming increasingly difficult, though, after S.C. Chief Justice Donald Beatty recently expanded the court rule from attorney/ legislators being able to avoid trials during the regular session of the General Assembly – five-to-six months out of the year – to include any meeting of the General Assembly, which can hold hearings year-round).
Lawyer-legislators never have to go to court!
In 2017, all the parties to this case reassembled, including 22 members of the victim’s family and friends, only to have Representative Rutherford claim that he had not received the notice and was not prepared for trial. Rutherford was an hour-and-a-half late for the court. Judge Griffith not only excused Rutherford but blamed himself for Rutherford not opening his email notice.
Finally, in 2019 – five years after the murder – the victim’s suffering family went back to trial where Rutherford again tried to resurrect the “Stand Your Ground” defense, self-defense and other arguments.
Fortunately, the jury rejected his arguments and the murderer received thirty years for taking the life of DaVon Capers. What a travesty: A waste of taxpayer money … a portrait of lawyer-legislator privilege and five years of agony for the Capers family.
“Justice delayed is Justice denied” (attributed to William Gladstone). Crime victims, by constitutional right (Article I, Section 24) have a right to the “reasonable disposition and prompt and final conclusion of the case” This right has never been balanced with the delaying tactics of trial attorneys.
(Click to view)
(Via: Travis Bell Photography)
Of course, Representative Rutherford is not the sole gamer of the biased system in South Carolina. Another phenomenon of the Legislative Branch trying to take over the Judicial Branch is the onslaught of numerous bills to usurp the sentencing of the court to allow early release of those incarcerated … overriding the contract with the victim made in open court.
The “hired help” at the Department of Corrections will be deciding who gets out into the public, not judges. All these efforts are labeled “Second Chance” legislation, “giving hope to those incarcerated.” The only thing these bills are creating is a second chance for another victim to be assaulted, raped, harassed or murdered with no hope for safety.
Other legislation seeks to end all mandatory minimums for most all offenses and loosens the penalties and lessons the amounts of drugs for traffickers and distributors (not possession) that ruin our communities and fuel gang activity. Even worse, Chief Justice Beatty mandated that only the most violent criminals should post bond … releasing hundreds of accused offenders back into our poorest communities with no supervision. I call it “catch and release” … kind of like a fishing tournament.
Now that the offender has no incentive to show up for court, a warrant must be sought and served – forcing law enforcement to spend their precious and expensive taxpayer-funded time trying to find hundreds of accused offenders to haul them to court. Judges at both the magistrate and circuit court level are reluctant to issue bench warrants because of Beatty’s decree – and many refuse to hear motions to revoke bond- particularly on defendants represented by lawyer-legislators.
What a waste of taxpayer dollars! No offender will ever show up for court. What a travesty!
Since the successful effort to empty our prisons in 2010 (the General Assembly is unwilling to fund the jails and prisons), murder is the highest it has been in five years in our state. According to SCDC Director Bryan Stirling, 65 percent of those left in prison are violent. But those so-called “non-violent offenders” who were released to the custody of Probation, Parole and Pardon Services were more likely to have been pled down from violent offenses – and have rap sheets like a full roll Charmin toilet paper.
Reform of the entire South Carolina criminal justice system is long overdue, but all stakeholders must be included in seeking the solutions. A storm of criminal activity is coming to South Carolina and the nation. Public safety is being ignored. Citizens need to speak up.
ABOUT THE AUTHOR …
Laura Hudson is the executive director of the South Carolina Crime Victims’ Council (SCCVC), the chief nonprofit organization in South Carolina advocating the development of crime victims’ rights and services.
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