Journal of the Senate
of the First Session of the 111th General Assembly
of the State of South Carolina
being the Regular Session Beginning Tuesday, January 10, 1995

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the theory and general technique be generally accepted in the scientific community, and the use of prior criminal convictions in a civil trial.

Judge Martin's record since his election to the circuit court bench in 1992 was criticized by the Bar, anonymous respondents to the Joint Committee's survey, and witnesses who filed affidavits and testified before the Joint Committee. The Joint Committee's attention was drawn to his record of reversals on appeal. Judge Martin's record on appeal is poor as he has been reversed, in whole or in part, in seven of the eight reported appellate opinions appealed from his decisions. He testified that he has been affirmed in eight unpublished opinions, but the Joint Committee does not search for any candidate's unpublished appellate decisions because they are not included in the computer database in which the Joint Committee conducts its research and they are often based on technical grounds such as situations in which the error was not preserved for appeal. The Joint Committee does recognize that its statistics on the appellate record of Judge Martin and all other candidates do not reflect unpublished appellate decisions. The Joint Committee did not consider this information about Judge Martin's appellate record to be determinative of his fitness for further service on the bench, but used it to help direct the Joint Committee's inquiry concerning his legal knowledge and ability.

The Bar found Judge Martin not qualified and said that it found significant concerns about his knowledge of the law and his ability to overcome this deficiency. The Bar's statistical survey on all current members of the judiciary up for re-election or at the mid point in their terms also indicated that there were major concerns with Judge Martin's knowledge and ability. Judge Martin rated the lowest of any judge in the Bar's empirical survey. Some of the witnesses who testified in favor of Judge Martin expressed concern over the number of people who responded to the Bar survey and felt that all of the survey respondents could not have practiced before Judge Martin. The Joint Committee considered the input from the Bar, but recognized that the respondents were anonymous members of the Bar who may or may not have had any direct knowledge of Judge Martin's capabilities. The Joint Committee did, however, note that the number of respondents for Judge Martin were similar to other judges who had been on the bench a similar length of time in a circuit of a similar size. The Joint Committee considered this information from the Bar only to direct the Joint Committee's inquiry and did not believe it to be determinative of Judge Martin's capabilities.

The Charleston County Solicitor, Mr. David Schwacke filed an affidavit and testified before the Joint Committee. Mr. Schwacke testified that he came before the Joint Committee because he considered it his duty to

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respond to published reports that he had stopped bringing cases with an identifiable victim before Judge Martin. Solicitors are charged by law with setting the criminal docket in South Carolina courts, and the reports stated that Judge Martin had, in Charleston County, been relegated to driving under the influence and similar matters in criminal court. Mr. Schwacke testified that he had not commented publicly on this matter before coming to the Joint Committee as he believed that Judge Martin's screening was the proper forum for his remarks. The Joint Committee reviewed the following matters brought to its attention by Mr. Schwacke:
(1) State v. Myers: Mr. Schwacke testified that in a pretrial hearing Judge Martin ruled that:

(a) a marine vessel could not constitute a habitable dwelling for the purpose of an arson prosecution; and

(b) the arson indictment be amended to burning of crops and other types of property, a lesser non-included offense.

This case was appealed to the South Carolina Supreme Court who reversed both rulings. Judge Martin testified that the definition of a marine vessel as a habitable dwelling was an issue of first impression in South Carolina. The Joint Committee agreed and did not find cause for concern in Judge Martin's ruling on that point. The Supreme Court ruled that Judge Martin had erred when he allowed amendment of the indictment to include a lesser, non-included offense.
(2) State v. Hazelton: Mr. Schwacke testified that Judge Martin:

(a) ruled that the defense could not cross-examine the state's witness who was facing pending criminal charges at the time of his testimony as to any plea offers or promises of leniency; and

(b) precluded the defense attorney from arguing that the jury could not consider the criminal records of the state's witnesses as affecting their credibility.

Judge Martin testified that he did not allow the defense to cross-examine the witness as to plea offers or promises of leniency because he said the solicitor's office is noted for reneging on plea bargains and if they really wanted this witness to testify, and they were going to honor the offer they had made to him, they could have done something more substantial than just make a promise. Judge Martin also noted that the witness had been charged, but had not been convicted of any crime at the time of the trial. On the second issue, the candidate stated that the argument of prior convictions would have had to have been allowed on direct or cross-examination in order for the jury to be exposed to it, but then said that the general notion that anything presented in final argument has to be

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derivative of the evidence presented at trial is not necessarily always the case. This case is currently on appeal.
(3) McInnis v. Medlock: Mr. Schwacke testified that Judge Martin signed an order to show cause in this matter before the time to answer had run. Mr. Schwacke testified that this was a case involving the seizure of cash and that he was not aware of any exigent circumstances which would have justified immediate injunctive relief to protect the property. Judge Martin testified that he had no memory of signing this order, but that the signature on the order was his. Judge Martin speculated that the order may have been placed on his desk for signing like many orders are throughout the course of the day, but that the matter had not been assigned to him for trial and he should not have received the order because he does not serve as administrative judge. He testified that if the order had been mailed directly to him, he would have read it and taken it to the administrative judge. Judge Martin stated that he is sure he read the order, but that he might not have been aware that the defendants' period of time in which to answer had not yet run. The Joint Committee was very concerned about this matter as it is an instance in which Judge Martin must have signed an order he did not understand. Judge Martin should have forwarded the order to the administrative judge, or at the very least, understood what he was signing.
(4) Mr. Schwacke reported an incident in which he was in the courtroom for jury qualification and heard Judge Martin qualify two jurors who did not live in Charleston County. Mr. Schwacke testified that Judge Martin found the two jurors qualified for service in Charleston County even after they informed Judge Martin that although their driver's licenses indicated they lived in North Charleston, they resided and paid taxes in Dorchester County. Judge Martin responded that he has never made a juror serve if they are not a resident of the county in which the case is being tried, and if this happened, there must be some reason why the juror continued to serve. He also indicated that no one ever brought this problem to his attention. Mr. Schwacke should have perhaps brought the matter to Judge Martin's attention, but the solicitor should be able to presume that every judge understands the fundamentals of juror qualification. The testimony on this issue was in conflict and because the Joint Committee did not have a transcript of the proceedings, it could not determine which version of the events was more accurate.
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(5) State v. Whaley: Mr. Schwacke alleged two errors in this trial:

(a) The defendant indicated that, although he wished to be represented by an attorney, he was displeased with his current counsel and wished to have a new attorney appointed. Mr. Schwacke said, and the transcript the Joint Committee reviewed reflected, that instead of appointing another attorney, Judge Martin required the defendant to represent himself and did not warn him about the potential perils of pro se representation.

(b) Judge Martin dismissed the indictment because of inconsistent verdicts. Judge Martin charged the jury on both larceny and burglary. When the jury returned a verdict of guilty on the burglary charge and not guilty on the larceny charge, Judge Martin indicated on the record that he found the verdicts to be inconsistent and was, therefore, dismissing the charges and setting the defendant free. Mr. Schwacke approached the bench and asked to be heard on the issue at that point, but Judge Martin did not allow Mr. Schwacke to state his objection and said that the solicitor was free to appeal.

As to the first alleged error, Judge Martin testified that he was sure that he did not deny the defendant the right to be represented by counsel. After the pertinent part in the transcript had been read to him, however, he stated that he probably did neglect to warn the defendant of the consequences of representing himself and he probably should have warned him or given him another lawyer, but it appeared to him that the defendant was abusing the system and that is why he proceeded. The trial transcript clearly reflected that Judge Martin forced the defendant to represent himself and did not warn him of the consequences.

As to the second alleged error, Judge Martin testified that he set the defendant free not because the verdicts were inconsistent, but because he was sitting as the thirteenth juror and believed the evidence did not support the verdict. He could not recall why the transcript did not reflect this reasoning and could not, even with significant assistance from the Joint Committee's counsel, clearly articulate the standard for a new trial based on the thirteenth juror doctrine. He also testified that the doctrine of double jeopardy has an impact on the thirteenth juror doctrine so as to allow a remedy of dismissal rather than the legally correct remedy of a new trial absolute. Judge Martin testified that he should have allowed the solicitor to put his objection to Judge Martin's dismissal of the matter on the record.

Judge Martin acknowledged that his failure to warn the defendant of the perils of pro se representation was probably reversible error, and the

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South Carolina Supreme Court recently reversed Judge Martin on both Mr. Schwacke's alleged points of error. The Joint Committee was particularly troubled by Judge Martin's inability to explain his reasoning and his confusing testimony about the thirteenth juror doctrine and the law regarding inconsistent remedies.
(6) State v. Dawson: Mr. Schwacke's first issue in this matter was whether or not the jury should be instructed to not draw inferences from the defendant's failure to perform a field sobriety test. Mr. Schwacke acknowledged that this is an unsettled question of law and, therefore, the Joint Committee could not find fault with Judge Martin's charge on this issue.

The second issue concerned an allegation that Judge Martin incorrectly placed the burden of proof on the defendant in a pre-trial suppression hearing. Judge Martin responded that the state always has the burden of proving the defendant's guilt and that the burden should never be shifted to the defendant, but that he did not know if the solicitor was correct in alleging that he erroneously placed the burden of proof on the defendant. The Joint Committee did not have a trial transcript to refer to on this point.
(7) State v. Reno: Mr. Schwacke alleged Judge Martin erred by charging the jury that it could not consider the defendant's failure to take a Data Master test. Judge Martin testified that he allowed the solicitor to argue that the defendant refused the test and that he believed his charge to be proper. The Joint Committee's research indicated that the propriety of Judge Martin's charge is an unsettled question of law and, therefore, it could find no fault in his charge.
(8) State v. Moore: In this driving under the influence matter, the beginning portion of defendant's breathalyzer video was erased due to an attempt to comply with a court expungement order in an unrelated driving under the influence case recorded on the same videotape. Instead of excluding the videotape as Mr. Schwacke argued would have been proper, Judge Martin dismissed the indictment. Judge Martin testified that he felt that the solicitor's office was guilty of prosecutorial misconduct in this case in that they erased evidence that could have been exculpatory for the defendant or could have led to a defense verdict. The trial transcript reflects a different or perhaps confused reasoning, however, as Judge Martin stated on the record that he was not dismissing the case for prosecutorial misconduct. The law requires a finding of prosecutorial misconduct in order for a judge to dismiss an indictment, and there may have been evidence in the record to support such a finding, but

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Judge Martin specifically stated on the record that his ruling was not based on such a finding. Appellate courts have great difficulty in reviewing matters in which the record is unclear, causing additional expense for litigants. Judge Martin testified that he probably should have been clearer as to his grounds for dismissal.
(9) State v. Smalls, State v. Tisdale, and State v. Passmore: These were driving under the influence matters in which Judge Martin did not give the mandatory minimum sentence. In State v. Smalls, the statute required a sixty-day mandatory minimum sentence, but Judge Martin suspended incarceration upon two years concurrent probation. Judge Martin testified that the statute does not allow him to reduce a mandatory minimum sentence and that he would stick to the letter of the law if re-elected.

The solicitor also pointed out that immediately before Judge Martin sentenced the defendant in State v. Smalls he discussed on the record the fact that he knew the defendant's father who is a minister. After both Judge Martin and the solicitor testified on this issue, the Joint Committee accepted the solicitor's determination that there was probably no impropriety in Judge Martin's comments.
(10) State v. Foran: This was a driving under the influence, second offense matter in which Judge Martin dismissed the indictment on grounds of double jeopardy. The Charleston Grand Jury originally no billed the offense against the defendant because the original indictment indicated it was a third, instead of second offense. The charge was then presented to another grand jury at a later date with the proper indictment. Judge Martin held that the first grand jury dismissal barred subsequent prosecution based on double jeopardy. The first case did not reach the point where the jury would have been sworn in, and jeopardy would not have attached. In response to the Joint Committee's practice and procedure questions, Judge Martin had answered the question about when jeopardy attaches correctly. He did, however, still maintain that his order was correct in this matter because he believed that the state had manufactured a case against the defendant and was guilty of prosecutorial misconduct. The Joint Committee reviewed the transcript in this matter and it clearly indicates that Judge Martin's dismissal was on the grounds of double jeopardy. Judge Martin testified that his decision was based on prosecutorial misconduct, even though that might not have been clear on the record. He stated that there might not have been double jeopardy in this case. This case concerned the Joint Committee as it

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was another example of Judge Martin's lack of clarity in some of his rulings.

The Joint Committee is not an appeals court and did not attempt to play that role when reviewing Judge Martin's decisions in the cases listed above. The Joint Committee did, however, attempt to determine whether Judge Martin understood the issues in those cases and whether his reasoning and the rulings that flowed therefrom were logical. A witness who testified on Judge Martin's behalf indicated that Judge Martin ought to be held to the same standards as other judges. The Joint Committee agreed and considered Judge Martin's responses to the solicitor's testimony in conjunction with his performance on the Joint Committee's practice and procedure questions.

Mr. Schwacke testified that he did not approach Judge Martin with his concerns about Judge Martin's performance because he felt it would be fruitless. The Joint Committee believes that such a conversation with Judge Martin might have been a good idea, but understands Mr. Schwacke's reluctance to do so given Judge Martin's general demeanor when criticized (discussed below) and his experience with Judge Martin in State v. Whaley when Judge Martin refused to allow Mr. Schwacke to question his ruling.

Judge Martin testified that he believed the complaints about his service on the bench are driven by the Charleston County Solicitor's office. He testified that it did not appear to be a racial issue, but rather one driven by the solicitor's disdain for some of Judge Martin's rulings and perhaps personal dislike. The Joint Committee offered Judge Martin the opportunity for the Joint Committee to subpoena witnesses and investigate specific allegations, but Judge Martin declined the offer.

The Joint Committee received two transcripts from sources who wished to remain anonymous. The first transcript was from a case in which Judge Martin was reviewing an appeal from a magistrate. There was some question in the case about whether the defendant had waived his right to a six-person jury. Judge Martin reviewed the magistrate's return, but then, even after both attorneys agreed it was not proper, took the testimony of witnesses. The Joint Committee believes that although Judge Martin was seeking to protect the defendant's constitutional rights, he should have followed South Carolina Code Section 18-3-70 which provides that no witnesses may be called when the circuit court is entertaining an appeal from a magistrate.

The second transcript was from a legal malpractice matter in which Judge Martin refused to allow a law school professor to testify on the issue of negligence because the introduction to the Code of Professional

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Responsibility for attorneys provides that it is not to be the basis of civil liability. The professor testified that he would not be basing his testimony solely on the Code of Professional Responsibility, but Judge Martin nevertheless refused to allow him to testify. No witnesses came forward to testify on this matter and it was, therefore, difficult for the Joint Committee to find fault with Judge Martin's handling of the case.

The Joint Committee subpoenaed a Charleston attorney, Mr. Reese Joye, to discuss Judge Martin's handling of a driving under the influence matter, State v. Terry. Mr. Joye reviewed the transcript of the hearing with the Joint Committee and responded to questions about the proceeding. The Joint Committee was primarily concerned about two aspects of the Terry trial. The first was Judge Martin's apparent reliance on appellate courts to correct his errors. In Terry, Judge Martin often responds to objections by saying "your objection is noted for the record." He apparently intends this to mean that the objection is overruled, but noted for the record. He used the phrase repeatedly in Terry and did not give the objecting attorney an opportunity to articulate the grounds for the objection. Along the same lines, Judge Martin said several times in Terry that if he was wrong the Supreme Court would correct him. Judge Martin testified that he thought he needed to be clearer in his rulings and would do so if re-elected.

The second concern the Joint Committee had with Judge Martin's handling of the Terry matter was his apparent confusion about the fundamental issue of when a defendant is due Miranda warnings. The defendant sought to exclude certain statements he made to the police prior to being advised about his right to counsel. The law essentially provides that the defendant must be given Miranda warnings if he is in custody and the police seek to interrogate him. Both the defendant and the police officer testified that the defendant was not free to leave when he made the statements, which is the classic legal test for when a person is in custody. Judge Martin ruled that the defendant was nevertheless not in custody at the time and that the police would have had to arrest him before he was entitled to Miranda warnings. The Joint Committee did not seek to second-guess Judge Martin's ruling on this matter, but is concerned by the unclear ruling as reflected in the transcript.

The following individuals testified on Judge Martin's behalf:
(1) Mr. Gary Ling stated that Judge Martin has a reputation for integrity and honesty in trying to reach a just and fair result. He also said that Judge Martin has the qualifications to understand legal issues and is also briefed by his clerk and the lawyers appearing before him in their briefs.

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(2) Mr. Brent Clinkscale testified that he tried a complicated malpractice case before Judge Martin in which he made numerous rulings on motions and other evidentiary matters both favorable and unfavorable to Mr. Clinkscale's client. He testified that he observed Judge Martin to have a diligent work ethic and competent judicial decision-making ability.
(3) Mr. William Runyon testified that he was surprised at all the talk of Judge Martin not having knowledge of the law and that up until this year, there had been no question concerning Judge Martin's competence. He also said that if circuit judges are always supposed to be right, then we don't need a Court of Appeals or Supreme Court. Mr. Runyon stated that Judge Martin is intelligent and qualified for this position and that many of the negative statements about him were coming from young, inexperienced lawyers.
(4) Mr. Barry Baker testified that Judge Martin can communicate well with people and makes people feel comfortable in his court.
(5) Mr. Brad Riesen testified that he has heard nothing but good things about Judge Martin's competence and the way he handles his courtroom.
(6) Mr. William Hill testified that Judge Martin is not a 4 on a scale of 1 to 4 on knowledge of law, but there is no perfect man or woman on the face of the earth who can meet every qualification. He testified that Judge Martin's skills are more than adequate.
(7) Ms. Tara Anderson testified that the solicitor's office quit bringing cases involving victims in front of Judge Martin because he was not a rubberstamp for them. She said that Judge Martin is ethical, respectful, polite, and courteous.
(8) Mr. Anthony O'Neill testified that Judge Martin is a role model in the African-American community. He also said that Judge Martin has a basic working command of the law, applies the law fairly, is impartial, possesses honesty and integrity, and has a feel for the community.
(9) Mr. John Chalmers testified that he has tried a civil case in front of Judge Martin and that it was refreshing to be in front of a judge without any trepidation or fear of being made to look a fool or to be reprimanded in front of a client or the jury. Mr. Chalmers also testified that although Judge Martin may be weak on his grasp of civil procedure, a good grasp of it will come with time. He suggested that Judge Martin could re-attend the judicial training school in Nevada. He also said the reason we have the Court of Appeals and the Supreme Court is because judges make mistakes and
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that it is not unusual for a judge to make an error of law or procedure in a courtroom.

3. Professional Experience:

Judge Martin enjoyed a successful law practice before his election to the bench, but did not have experience with sophisticated matters. He practiced with the Honorable Richard Fields from 1966 to 1968. Judge Martin testified that during this time he engaged in a general practice of law, but did not handle any trials on his own with the exception of a master-in-equity matter.

Judge Martin served as the director of the Neighborhood Legal Assistance Program from 1968 to 1973. This program provided free legal services to indigents and Judge Martin had substantial administrative responsibilities, but the responsibility for trying cases was delegated mostly to the chief counsel. Judge Martin did, however, handle cases in circuit court during this time.

From 1974 to 1984, Judge Martin served as a part-time assistant solicitor for the Ninth Judicial Circuit. He prosecuted drug, assault and battery, burglary, and other criminal matters. He was also appointed by the Attorney General as special homicide prosecutor for a controversial case in Spartanburg. Judge Martin also had a private practice during this time, handling mostly civil cases and appearing in court about once or twice a month.

In 1984, Judge Martin was elected to the House of Representatives where he served until his election to the bench in 1992. He maintained his private practice during this period, working primarily on civil matters.

The Joint Committee asked Judge Martin to provide it with examples of cases he had handled over the years that he considered to be complex in nature. Judge Martin testified that he could not recall any complex civil matters and cited only one complex criminal matter. The complex criminal matter he cited was an Operation Lost Trust defense.

4. Judicial Temperament:

The input the Joint Committee received on Judge Martin's temperament was mostly very positive. Judge Martin exhibits compassion and other qualities and character required for a judge of outstanding judicial temperament.

There were, however, two instances in which Judge Martin appeared to have little patience for those who challenged his abilities. The Joint Committee believes that Judge Martin's unwillingness to recognize his mistakes and shortcomings is perhaps a partial explanation for the

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