In re Beckham, 26038.

• Decision Date: 19 September 2005
• Docket Number: No. 26038.,26038.
• Citation: 620 S.E.2d 69
• Parties: In the Matter of Newberry County Magistrate Joseph Griffin BECKHAM, Respondent.
• Court: South Carolina Supreme Court

620 S.E.2d 69

In the Matter of Newberry County Magistrate Joseph Griffin BECKHAM, Respondent.

No. 26038.

Supreme Court of South Carolina.

Submitted July 6, 2005.

Decided September 19, 2005.

Henry B. Richardson, Jr., Disciplinary Counsel, of Columbia, for Office of Disciplinary Counsel.

W. Chadwick Jenkins, of Newberry, for respondent.

PER CURIAM:

In this judicial disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RJDE, Rule 502, SCACR. In the Agreement, respondent admits misconduct and consents to the imposition of an admonition, public reprimand, or suspension not to exceed ninety (90) days pursuant to Rule 7(b), RJDE, Rule 502, SCACR. We accept the Agreement and suspend respondent for sixty (60) days. The facts as set forth in the Agreement are as follows.

FACTS

I.

A defendant was charged with criminal domestic violence (CDV). When the matter came to trial before respondent neither the victim nor the arresting officer were present to offer any testimony against the defendant. The defendant was present but did not plead guilty. Notwithstanding the foregoing, respondent found the defendant guilty of CDV. The only information in support of this finding was the law enforcement incident report.

Thereafter, the defendant's attorney contacted respondent over the telephone. During the ex parte conversation, the attorney convinced respondent that he had erroneously found the defendant guilty.

During the telephone conversation, respondent told the attorney that if he filed a motion to reopen the case, he would grant the motion. It appears respondent agreed to grant the motion to reopen without notice or opportunity to be heard being afforded the State or the victim and, for purposes of this Agreement, respondent does not deny these facts. However, respondent represents it is possible he checked with law enforcement to see if the State objected to the reopening or that the attorney told respondent he had talked with law enforcement representatives and they had no objection. The matter was reopened and the defendant was found not guilty.

A representative of the Sheriff's Department signed the Ishmell¹ order after respondent told the attorney he would grant the motion to reopen. The Ishmell order designates the reason for its issuance as "signed off in error." Respondent now recognizes this was not an accurate statement since he had not found the defendant guilty as the result of clerical error, but as the result of judicial error.

After discussing this matter with ODC and his own attorney, respondent now recognizes he was in error in finding the defendant guilty under the circumstances and, in fact, his actions constituted judicial misconduct, albeit unintentional. Respondent now recognizes and acknowledges that his ex parte conversation with the defendant's attorney and, additionally, his ruling on a motion without giving the State an opportunity to be heard constituted misconduct. In mitigation, respondent represents he agreed to reopen the matter as he did because it was so very clear to him that he had committed reversible error in his handling of the matter.

Respondent acknowledges that the inaccurate statement on the Ishmell order constitutes judicial misconduct. After discussing this matter with ODC, respondent is now aware that Ishmell orders are authorized only under limited circumstances to correct clerical errors and the use of such orders under the circumstances here constituted judicial misconduct.

For quite some time and long prior to respondent's magisterial appointment, it was standard practice in the Newberry County Magistrate's Court for a representative of the Sheriff's Department to appear at bench trials in criminal cases in lieu of the appearance of the arresting officer and/or complaining witness(es). In addition, unless the defendant was represented by counsel, it was standard practice to have the Sheriff's Department representative (who had no first hand knowledge of the case) to testify for the State by reading the information from the incident report. If the defendant was represented by an attorney, the case would be continued until the arresting officer and/or the complaining witness(es) could be present.²

Respondent represents he followed the procedure described above as it was used by his predecessors and by current Newberry County magistrates. Respondent correctly asserts that hearsay evidence is not inadmissible per se, but is admissible unless an objection is made in a timely fashion. ODC does not dispute this contention.

After discussing the Newberry County Magistrate Court's procedure and related legal principles with ODC and his own attorney, respondent now recognizes that the Magistrate's Court was, in effect, depriving pro se defendants of the constitutionally guaranteed right to confront their accusers. This practice constituted judicial misconduct, albeit unintentional. Respondent warrants that, in the future, he will cease allowing defendants to plead guilty or be convicted solely on the basis of incident reports.

ODC does not contend that it is judicial misconduct for a judge to allow hearsay testimony into a proceeding where there is no objection, even in cases where a defendant is pro se, but, instead, contends that fundamental principles of jurisprudence require some admissible evidence of the commission of a crime as a prerequisite to proceeding with a criminal case. In addition, ODC contends Magistrate's Court should not accommodate the prosecution and deprive pro se defendants of basic constitutional rights.

The Court emphasizes that while a criminal defendant may plead guilty without any evidence of his guilt being submitted, a defendant who pleads not guilty cannot be convicted solely on the basis of a police incident report. The burden is on the government to prove a defendant's guilt beyond a reasonable doubt based on competent evidence.

II.

For many years, respondent had been personal friends with both a law enforcement officer (Officer) and a public official (Official). A vacancy which would constitute a promotion for the Officer became available.

The Official, while not formally the promoting authority, had sufficient input in the selection process such that, in all likelihood, his recommendation would be followed. Respondent met with the Official for the purpose of recommending the Officer for the promotion. Respondent admits that, under the circumstances, he improperly lent the prestige of his judicial office for the purpose of benefiting another.

III.

It is standard practice in the Newberry County Magistrate's Court system not to have scheduled bond hearings but, instead, to have bond hearings as needed. Instead, a magistrate or magistrate's employee telephones the detention center several times a day to determine if a bond hearing is necessary. If a hearing is necessary, a hearing is held by a magistrate for the entire detention center population awaiting bond hearings. This procedure was being used before respondent's magisterial appointment, is used by the Chief Magistrate, and respondent assumed the procedure met published requirements.

As a result of discussions with ODC, respondent is now aware that the procedure is not in strict compliance with procedures for bond hearings as set out in the Chief Justice's administrative order dated November 28, 2000. The Chief Justice's order requires bond hearings to be scheduled at least two times a day. The order is included in the instruction course given to all magistrates by South Carolina Court Administration prior to assuming magisterial duties and a copy is included in the Bench Book provided by South Carolina Court Administration to all magistrates and other summary court judges. Respondent acknowledges that failure to follow a court order constitutes judicial misconduct.

ODC does not contend that the foregoing procedure prejudiced any individual defendants, but only that the procedure does not strictly conform to the Chief Justice's directives. In mitigation, respondent was in a dilemma because the instructions from the chief magistrate were at variance with the provisions of the Chief Justice's order.³

IV.

Respondent is married to the daughter of William Frank Partridge, Jr. (Father-in-law). Father-in-law is an attorney. His offices are in Newberry and, on occasion, he defends cases in Newberry County Magistrate's Court (but not before respondent), prosecutes cases in family court for the Solicitor in Newberry County (thereby representing the State), and serves as a part-time municipal judge. Father-in-law has a son, William Franklin "Troup" Partridge, III (Brother-in-law), who is also an attorney with his principle office in Columbia.

For purposes of this Agreement, the parties believe that Brother-in-law was a friend of Eric Boland. Mr. Boland's son, Matthew Boland (Matthew), received a speeding ticket from South Carolina Highway Patrol Trooper M.K. Horne. Trooper Horne issued a ticket to Matthew alleging he was driving 85 M.P.H. in a 55 M.P.H. zone (a six point violation). Mr. Boland contacted Brother-in-law and Brother-in-law contacted his father, Father-in-law, about representing, assisting, and/or advising Matthew in connection with the ticket.

At a regularly scheduled weekly luncheon between respondent and Father-in-law, Father-in-law told respondent he needed to speak to Trooper Horne about Matthew's ticket and asked respondent to convey that message to Trooper Horne. Thereafter, respondent delivered Father-in-law's message to Trooper Horne during a conversation in respondent's office.

Respondent represents Trooper Horne spontaneously volunteered something to the effect "tell Father-in-law not to worry about it [Matthew's ticket], I'll mark it not guilty." Respondent further represents he did not ask Trooper Horne to provide any assistance to Father-in-law or Brother...