What happens when judges police themselves in secret? Not much

Beyond mere courtroom disputes, the complaints contain serious concerns about abuse of office, including allegations of influence peddling or judges mishandling conflicts of interest.

The number of judges punished publicly as a result: zero.

A judicial ethics watchdog created in 1997 is supposed to aggressively monitor misconduct on the bench. But instead, the system run largely by judges shields the accused and buries complaints, an investigation by The Post and Courier and ProPublica found.

The Commission on Judicial Conduct shares its work with no one — not even complainants, who receive brief letters telling them when a case has been closed. In thin annual reports, it acknowledges the number of complaints and the type of alleged offenses, but it offers no details.

Unlike in other states, including South Carolina’s neighbors, it’s nearly impossible for the public to know how seriously allegations against the state’s judges are taken.

The leniency results from one of the most insular systems in the country for selecting and disciplining judges, who hold unusual political connections in South Carolina. The state legislature chooses who sits on the bench, a provision of the state constitution dating to the 1890s that was part of segregationist U.S. Sen. Ben Tillman’s agenda to disenfranchise African Americans.

Only one other state, Virginia, allows lawmakers to elect judges.

Lawmakers filled many of the openings with their fellow legislators, including several who sat on the state Supreme Court. The high court is in charge of the bench’s ethical oversight, but it has skirted the practices of virtually every other state to stack the Commission on Judicial Conduct with judges.

Year after year, they reject any punishment of their colleagues.

Elsewhere, judicial discipline has erupted in major scandal, with judges in other states removed from the bench or sentenced to prison. Legal experts say more minor punishments of less egregious offenses help stem unethical behavior.

But in South Carolina, the public is left in the dark. The judges themselves are the only ones who can decide whether grievances against them are ever divulged.

Few are willing to share.

The Post and Courier wrote emails and sent letters to 60 active and retired circuit court judges asking if they had been the subject of disciplinary proceedings. Just one responded: a retired judge who said he never faced a complaint.

The Post and Courier also conducted more than three dozen interviews and reviewed 7,000 pages of legal documents. The newspaper obtained three confidential complaints filed with the Commission on Judicial Conduct, which show circuit judges have been accused of serious misconduct.​

Circuit Court Judge Diane Goodstein, based in the small town of St. George about an hour from Charleston, faced a formal complaint in 2008 filed by South Carolina lawyer David Flowers. He alleged the judge colluded to award a lawyer friend exorbitant attorney’s fees that limited payouts to clients who had been sexually abused by members of the clergy.

The commission dismissed his complaint without explanation, leaving Flowers unsure what steps were taken to investigate his concerns.

Goodstein, one of 14 judges who sits on the Commission on Judicial Conduct, through a spokeswoman denied doing anything improper.

“I made some serious allegations,” Flowers said. “But my thought before filing was that nothing was going to happen to her, just because she was a circuit court judge. They absolutely are untouchable.”

Some lawyers and court officials contend the commission functions well and regularly scolds or sanctions lower-level judges, such as county magistrates and municipal judges. In fact, the commission has disciplined nearly 80 county and city judges over two decades, court records show.

There are roughly 1.6 million cases filed in South Carolina courts over a year and a small fraction of them result in complaints against judges, said Ginny Jones, spokeswoman for the S.C. Judicial Department.

Donald Beatty, chief justice of the South Carolina Supreme Court and also a former lawmaker, in a written statement defended the state’s discipline of judges and its process for screening them upon reelection. He assured “all legitimate complaints are addressed.”

However, state Rep. Gary Clary, a retired circuit court judge, said it is inconceivable that no circuit court judge in South Carolina has committed an infraction in more than 20 years that warranted public action.

“That defies the law of probability,” he said. “You would have to say the system is built to protect judges.”

“They Always Protect”

The “vast majority” of complaints about judges come from people disgruntled about the outcome of their cases, said John Nichols, head of the Office of Disciplinary Counsel, which conducts preliminary investigations.

Hard feelings from litigants are not unexpected for any judge, said John Freeman, a professor emeritus of professional ethics at the University of South Carolina.

“If you’re in public life, you’re going to irritate some people,” Freeman said. “That doesn’t mean you’re a bad judge.”

But even when more serious allegations of ethical misconduct are made, judges are almost never asked to publicly explain themselves.

Consider the case of Goodstein, elected to the bench in Dorchester County in 1998.

As a circuit court judge, she oversaw one of the state’s most significant recent civil cases, one that led to a $12 million settlement in 2007 that the Roman Catholic Diocese of Charleston paid to victims of clergy sexual abuse.

Questions about Goodstein’s conduct were raised in the 2008 complaint by Flowers, who represented a victim after the class-action settlement was approved.

Among other things, he accused Goodstein of conspiring to award higher fees to a family friend, Mount Pleasant lawyer Larry Richter, who represented all victims in the class action before the settlement.

Goodstein disclosed the relationship to the diocese, which waived the conflict. But Flowers later claimed that the fees she awarded to Richter were based on bogus work records. Fees to Richter’s firm totaled $2.5 million, representing roughly 20% of the $12 million overall settlement.

Richter’s billing records suggested his firm’s lawyers worked more than 24 hours on single days. In one instance, an attorney reported 92 hours of work on Jan. 10, 2006. Lawyers and staff also reported nearly 70 hours of work in 2004 and 2005 on “Feb. 30,” a date that does not exist.

In a sworn statement later provided to Flowers, Michael Virzi, a lawyer and former employee of the Office of Disciplinary Counsel, wrote that many of Richter’s billing records were “clearly false in that they are nonsensical and/or impossible.”

Richter in a statement to The Post and Courier insisted he did nothing wrong. Goodstein told the newspaper she relied on Richter’s sworn statements that said the fees were legitimate.

Flowers took his complaint to Lee Coggiola, the former head of the Office of Disciplinary Counsel, before filing a 13-page grievance. His complaint noted he had “documents to support these allegations.”

No one followed up, he said, until he received a form letter six months later telling him the complaint had been dismissed.

“I was never part of any investigation,” he said. “They never asked me for anything.”

Nichols, who replaced Coggiola in 2018, said his office conducted an “adequate investigation” and backed Goodstein’s decision to rely on Richter’s paperwork.

Flowers said he still doesn’t know whether the Commission on Judicial Conduct reviewed the billing records or investigated Goodstein’s relationship with Richter. He got no indication why they chose to dismiss the case.

“No one has ever explained to me how it is not wrong,” Flowers said. “For them to say never mind — that’s not enough.”

Others who complained about judges ran into similar roadblocks.

Brenda Bryant in 2014 alleged Greenville County Circuit Court Judge Edward Miller had issued an “illegal” arrest warrant after she refused to pay roughly $10,000 in legal fees for a court-appointed guardian. The complaint was first reported by The Nerve, a South Carolina online news outlet.

Bryant had challenged the fees. She alleged the guardian had failed to protect Bryant’s disabled daughter from physical and sexual abuse in a Greenville group home.

Bryant complained that Miller’s warrant turned her into a fugitive, forcing her to live out of state.

In an email to The Post and Courier, Miller denied Bryant’s claims and called Bryant a “disgruntled litigant.”

Bryant told The Post and Courier the warrant for her arrest is still active, and it remains unclear how seriously the state commission took her complaint.

All she received was a three-paragraph letter stating that the commission “convened” and “voted to dismiss your complaint.”

“I have no closure,” Bryant said in a recent phone interview.

Columbia lawyer Desa Ballard got a similar letter after she filed a complaint last March against Richland County Circuit Court Judge Robert Hood.

Hood had handled Ballard’s court petition to release inmate Charles Carpenter, who was sentenced in 1990 to what Ballard alleged were illegal, consecutive 25-year prison terms for dealing cocaine and marijuana in Chesterfield County.

Ballard, a professional responsibility lawyer who has practiced for more than 30 years, alleged in her complaint that Hood improperly took the state’s side and only agreed to release Carpenter if he waived his right to sue the state upon release.

Carpenter signed the waiver and turned it over to the state’s lawyers, Ballard said. But Hood never released him. He’s still sitting in prison, possibly having forfeited his right to take further legal action.

Like Flowers, Ballard notified Coggiola of her concerns in an email before filing her complaint.

Her response suggested interest. “WOW,” Coggiola wrote back on June 15, 2017, emails show.

Coggiola declined to discuss the case or her emailed reaction. “I stand by the work that was done,” she said.

Hood said he didn’t coerce the parties into an agreement.

“I expressly informed counsel it was only a suggestion, and they were free to accept or reject the resolution,” Hood said.

He called Ballard’s allegations against him “baseless, offensive and not supported by the facts.”

Within three months, the commission dismissed the complaint, offering no details.

“They always protect,” Ballard said.

Rarely Dislodged

Circuit court judges handle all major trials and are among the most powerful legal officials in South Carolina.

They hold sway over weighty criminal and civil matters that directly affect businesses, individuals and institutions. Many also have significant political ties that stretch from the courtroom to the Statehouse in Columbia.

Several got their start in the legislature, bolstering the chances they pass muster with the lawmakers who elect them. Others are married to current or former lawmakers.

From the state’s 16 judicial circuits, 49 full-time circuit court judges rule on multimillion dollar lawsuits and crimes that can send a person to death row. Anyone who has spent time in a South Carolina state prison was placed there by a circuit court judge.

Circuit judges are paid a yearly public salary of around $140,000. When they leave the bench, with a mandatory retirement at 72, they get hefty retirement packages described as the envy of other state employees.

Once chosen, these judges rarely step down. Their terms are virtually unlimited.

Every six years, they are rescreened and evaluated for reelection by a special panel that recommends names to the General Assembly for votes. Four representatives from the public sit on the screening panel, along with six lawmakers.

For incumbents and all other candidates, the screening panel conducts background checks, vets financial statements and collects feedback from attorneys through anonymous surveys.

The process rarely dislodges a sitting circuit court judge. In 2017, Judge Kristi Harrington withdrew her reelection bid and retired after lawyers complained about her courtroom temperament in anonymous surveys.

But hearings for the more than 50 active and retired circuit court judges in the last five years were rarely contentious, according to a Post and Courier review of more than 1,000 pages of screening records.

Judges rarely face opposition in their reelections. Reviews by the screening panel of prior ethical grievances are conducted behind closed doors. Nominated candidates are then typically rubber stamped by the legislature.

Many consider the process a mark of South Carolina’s distinction.

“We don’t have some of the problems in other states where they do public election of the judges or they do appointments from the governor,” said House Minority Leader Todd Rutherford, a Columbia Democrat and criminal defense attorney who sits on the screening panel. “They are vetted so much on the front end that I think we get a good outcome on the back end.”

Similar to South Carolina, about a third of other states rely on a nominating panel to vet their major trial judges before they are appointed or elected, according to an analysis from New York University School of Law’s Brennan Center for Justice.

However, that hasn’t kept those judges from being reprimanded for committing infractions or pushing ethical boundaries.

The Post and Courier and ProPublica analyzed public disciplinary actions imposed by judicial commissions and supreme courts in all 50 states.

The analysis found just three other states that have gone decades without publicly disciplining a major trial judge: Delaware, Hawaii and Virginia. Virginia is the only state other than South Carolina that empowers its legislature to nominate and elect judges.

By comparison, in Kentucky, Mississippi, North Carolina and Tennessee — Southern states that provide the most detailed disciplinary statistics — a total of 21 major trial judges were publicly disciplined since 2009.

Records from those states show public actions taken against judges for misconduct as minor as rude courtroom behavior to more serious misdeeds like an inappropriate sexual relationship with a defendant and a judge accused of obstructing an FBI investigation.

While public sanctions occur infrequently across the country, they are still a key tool for discouraging behaviors that fall into legal or ethical gray areas, said Greg Adams, a University of South Carolina professor who taught a course on judicial ethics.

“The whole idea of professional discipline is built on the fundamental human understanding that there are enforcers of the rules and there are consequences of the violations of the rules,” Adams said. “That does not happen with judges in South Carolina.”

Promised Changes

The Commission on Judicial Conduct was created in South Carolina in 1997 after a wave of scandals rocked the bench.

One involved a family court judge in York County who was accused in 1991 of coercing a woman into sex in exchange for awarding her custody of her child.

That ethics complaint against Judge Sam Mendenhall sat for three years before state prosecutors stumbled upon the issue in another case and then charged Mendenhall with official misconduct. He was sentenced to 18 months in prison.

Under the state’s old system for disciplining judges, the only circuit court judge to be publicly reprimanded for misconduct on the bench was Judge Rodney Peeples of rural Barnwell County. He prepared a will for an elderly woman and quietly made his daughters the benefactors. He then tried using his position to bully someone into making payments he said were owed to the woman.

The Supreme Court reprimanded Peeples in 1988, but it stopped short of suspending or removing him. He stayed on the bench until 2004.

The cases exposed shortcomings with an understaffed and often lenient watchdog on judicial ethics, the former Board of Commissioners on Grievances and Discipline.

The agency conducted its work in private. Those who filed complaints were under a gag order and faced legal charges if they discussed the issues with anyone while cases were pending. Findings were forwarded to the Supreme Court, which, like today, has final say in disciplinary cases.

Former Senate President Pro Tem Glenn McConnell, who is also a lawyer, said the secretive nature of the proceedings left too many unanswered questions. “And unanswered questions erode public confidence,” he said in 1994.

The legislature went to work creating a new ethics office to investigate complaints against judges.

State leaders promised changes, but they instead handed the reins of reform to the judges themselves — appointing them to make up three-quarters of the new 19-member Commission on Judicial Conduct.

That practice continued for more than a decade, even though standards written by the American Bar Association, the nation’s largest legal organization, call for an even split of judges, lawyers and citizens.

The commission added more members of the public after the ABA recommended changes in 2008. Today, there are 14 judges, seven of them from the circuit court, sitting on the commission, which has expanded to 26 members.

It is the fourth-highest such ratio in the country among 44 states with similar statewide judicial ethics commissions.

Nichols, the head of the Office of Disciplinary Counsel, said he disagrees with the ABA recommendations. Judges are “uniquely suited” for the commission because no one understands the judiciary better than them, he said.

“They’re better positioned than a practicing lawyer or someone else who hasn’t had the experience of a judge,” Nichols said.

But having them as a majority strikes a blow to the public’s confidence that legitimate complaints are being addressed, said Rebecca Love Kourlis, a former Colorado Supreme Court justice and the executive director of the Institute for the Advancement of the American Legal System. Kourlis spearheaded a 2018 study of state judicial disciplinary systems for the University of Denver-based think tank.

“That’s the fundamental concern: that judges would never discipline other judges,” Kourlis said. “That isn’t true. But the mere fact that people believe it’s true is reason enough that you’d want to balance the system.”

“An Enemies List”

Reform efforts eliminated the gag order — allowing complainants to speak publicly about their grievances — and were said to be a victory for transparency.

But the changes largely kept the previous rules intact.

Court officials still keep complaints under seal unless a case is taken to the Supreme Court for public discipline. With circuit court judges, that hasn’t happened in more than 30 years.

The dearth of public punishments likely discourages people from filing complaints, said Becky Meacham Richardson, a former lawmaker who helped push for reform in the 1990s.

“They may think twice and say why would I waste my time, because it’s already a done deal,” she said. “I think that would be very intimidating.”

Complaints, often filed by regular citizens with little to no experience with the courts, can also be difficult to process. Some are clearly written with exhibits attached as evidence, similar to civil lawsuits. Others are sent as handwritten letters that go on for pages.

A single lawyer in a given year typically reviews a stack of roughly 280 judicial complaints, which may be filed in writing or in person.

The ABA in 2008 recommended South Carolina fall in line with most other states by providing a complaint form for citizens to use, a move that would streamline the process. The group also recommended the state expand public access by allowing complaints to be submitted online.

Nichols, after taking office last year, said he has pledged to implement those changes, including a “user friendly” website and a form helping complainants “crystallize their thoughts.”

Since there is no standardized process, some who submit complaints don’t even include the judge’s name. Others harbor their grievances out of a fear of retaliation.

Lawyers almost never file complaints against judges; theirs make up roughly 1% of the hundreds that roll in each year. Coggiola, the former head of the Office of Disciplinary Counsel, said she fielded calls from lawyers who were concerned about a judge but who knew they would again have to appear before that person.

“They’re afraid of any repercussions,” Coggiola said.

Charleston lawyer Thomas Goldstein told a screening panel last fall that Circuit Court Judge Deadra Jefferson dressed him down about a complaint she accused him of filing against her. He maintained he never filed such a complaint.

“I have them all indexed,” Goldstein quoted Jefferson as saying.

Goldstein told the panel it sounded to him like Jefferson was keeping “an enemies list.”

“‘I got a list of all the people who file grievances against me,’ is how I took it,” Goldstein recalled.

Asked about the exchange by the panel, Jefferson said she keeps copies of complaints for record-keeping purposes and acknowledged a “poor choice of words.” She told the panel she remains “fair and impartial” to those who have complained about her.

She said she had mistakenly fingered Goldstein for filing the grievance when it came from one of his clients instead. “I knew he was connected with it,” she said.

Goldstein told The Post and Courier that publicly criticizing a judge before the panel was “absolutely the hardest thing” he’s done in his career.

“There’s always a potential for retaliation from any judge against any lawyer,” he said. “I’ve seen judges play favorites. I think any lawyer in the state would tell you that.”

Final Complaint

Flowers, the attorney, maintains that he paid a steep price for filing a complaint against Goodstein, though he still contends he had valid concerns about the judge.

Before signing off on Richter’s millions in fees in the diocese case, Goodstein acknowledged in court papers a “long social history” with his family.

Goodstein’s husband, former state Sen. Arnold Goodstein, was also an attorney for the Charleston County Aviation Authority, where Richter served as a board member.

Goodstein denied any impropriety and said it’s “not uncommon for a judge to have had associations with lawyers of both sides of any particular case.”

She noted that the party opposing Richter in the case, the Charleston Diocese, waived Goodstein’s conflicts. Flowers, however, had argued that it was the victims, not the diocese, who were adversely affected by her decision to grant Richter’s fees as part of the victims’ settlement.

Richter himself is a former circuit court judge who retired from the bench amid controversy in 1988.

During several days of public hearings before a screening panel, accusers testified Richter used his position to collect a personal debt, offered cocaine to a young female law student and accepted $55,000 in cash from a drug smuggler in a land deal. Richter, who has denied those allegations, went on to serve in the state Senate in the 1990s.

Richter told The Post and Courier that his attorney’s fees in the diocese case were fair. He blamed inaccuracies in the fee report on a computer program that logged hours based on tasks, and not specific dates.

He suggested Flowers was peddling “scurrilous claims.”

“For more than 10 years, the same malcontents have been attempting to peddle the same contorted story and have been soundly disregarded everywhere they have taken it,” Richter said.

Flowers said the complaint against Goodstein derailed his 20-year career. After making the complaint, the state’s Commission on Lawyer Conduct investigated him for failing to file federal income taxes for four years.

He admitted those delinquencies to investigators, and the Supreme Court suspended his law license for 90 days. In a 2013 hearing, he told the high court he was targeted in an anonymous complaint, presumably in retaliation for challenging Goodstein.

Flowers said the episode left him unable to practice law because “circuit court judges started acting differently and started ruling differently” after he filed his complaint.

“And here’s the problem that I have: In the four walls of this building you have indisputable evidence of a vile, disgusting, corrupt action that occurred in this state, and y’all have chosen not to do anything about it,” Flowers told the high court in the Feb. 21, 2013, hearing.

“Are you telling me that you’ve got circuit court judges who are ruling on the basis of things that are not in front of them but biased feelings?” former Chief Justice Jean Toal asked. “If so, why aren’t you filing complaints against them?”

“With all due respect, Your Honor, it’s because I did file a complaint against this one,” Flowers said.

“What happened with these complaints that you filed?” Beatty, now the chief justice, asked.

“They were all dismissed,” Flowers said. “They were all dismissed.”