Like those who glorify military service and war, many people mistakenly believe courtroom battles are all fought above board by honorable lawyers when, in reality, they can often be down and dirty fights between legal Goliaths. I think I still suffer post-traumatic stress disorder from my service as a foot soldier in the Swerling & Harpootlian v. the Honorable Lawrence E. Richter War of the mid-1980’s.
I was drafted late into the war the origins of which remain shrouded in mystery to me but, as I recall, it all started with a Swerling & Harpootlian trial presided over by Judge Richter in Columbia. Apparently, Judge Richter flexed his judicial muscles causing Swerling and Harpootlian to have hurt feelings. They launched the first salvo of the war when a decision by Judge Richter was affirmed by the South Carolina Court of Appeals.
The case on appeal involved the $5,140.00 prize awarded for the largest fish caught during the James Island Yacht Club King Mackerel Fishing Tournament. Ice was discovered in the gullet of the 29-pound Mackertel, the largest by a substantial margin, was disqualified. When the fisherman who caught the frozen fish sued to collect the reward, Judge Ricther flexed his judicial muscles again and tossed the case out of court.
For some inexplicable reason, the Honorable Randall Bell began his appellate court decision addressing the case by quoting the Bard’s dialogue by Trinculo defending his drunk friend Stephano by calling Caliban a “deboshed” fish. A more complete quote of the dialogue is, “Thou liest, most ignorant monster. I am in case to justle a constable. Why, thou deboshed fish, thou, was there ever man a coward that hath drunk so much sack as I today? Wilt thou tell a monstrous lie, being but half a fish and half a monster?” Who knows, perhaps Swerling & Harpootlian’s case before Judge Richter involved to jostling a constable, whatever that means, but it was enough for open hostilities to break out. Swerling and Harpootlian decided to send a copy of Judge Bell’s decision stuffed into the mouth of a fresh caught Mackerel to Judge Richter’s chambers in Charleston.
Oh, the gauntlet was thrown and the battle lines were drawn. This time it was Richter who retaliated. He struck a blow below the belt and had printed flyers distributed to all the winos in Columbia inviting then to enjoy free food and beverages at the Swerling & Harpootlian lavish annual Christmas party. Touche!
It was then that I was drafted into service. I was instructed to have $500.00 of food from a client’s Chinese restaurant delivered to Judge Richter’s chambers at the old Charleston County Courthouse. The old courthouse at the Four Corners of Law was built sometime back in the 1700’s and provided cramped quarters. I didn’t know, as I’m sure you don’t either, how much $500.00 worth of Chinese food could stink up a courthouse. I don’t think Judge Richter ever completely got the smell out of his chambers.
I am thankful Judge Richter never learned I was the Swerling & Harpootlian operative who delivered the coup de grace that ended the war. To my knowledge, Jack Swerling, Dick Harpootlian, and Larry Richter reconciled and remained good friends thereafter, but what of us foot soldiers who carry the emotional scars of their war? No medals, parades, or reparations were offered by either side. We few, we happy few, we band of brothers, who stood together in the fight, shall never hold our manhood’s cheap and will have to console ourselves with the knowledge the practice of law doesn’t have to be stodgy and can sometimes be fun and lighthearted.
Being as old as I’m getting to be, I sometimes wonder if I get the facts of the stories I write about jumbled up and confused. I’ll be sitting at my desk and a case I tried forty-five years ago will pop into my head and I’ll decide I want to write about it. Like a case I tried in the Folly Beach Municipal Court in 1980 when I represented a schoolteacher arrested and charged with disorderly conduct for performing oral sex on the beach on Folly Beach. She was mortified she would lose her teaching certificate but, to be honest, I wasn’t sure what, if anything, I could do for her.
Folly Beach is affectionately known as the Edge of America and has always enjoyed let’s just say a colorful reputation. It sat along the main sea route leading to Charleston Harbor and the many shipwrecks along its shore first earned it the name Coffin Island before developers, wanting to turn it into a resort destination, changed its name to Folly Beach. “Folly” because its an old English word for lush greenery, but it could just as aptly meant the more modern connotation of a foolish act that leads to a bad outcome as in my schoolteacher’s case.
Trials on Folly Beach were held in the evenings after the part-time municipal judge, Martha E. Hass, finished her day job as a College of Charleston Business Law professor. She was a good bit older than me but had graduated USC law school the year after I became a lawyer. It was my first time appearing before her and she struck me as a hardnosed, no-nonsense kind of judge. The schoolteacher and I sat in the makeshift courtroom waiting our turn watching Judge Hass mete out tough justice to all manner of assorted characters accused of committing one bizarre disorderly act after another on the island. My poor schoolteacher became more and more nervous with each guilty verdict and sentence.
We were thankful when it turned out we were the last case on the docket that night. By the time we were called, the courtroom had almost emptied out much to my client’s relief. Folly Beach didn’t have a police department, it had a Department of Public Safety, and our case was being prosecuted by the Fire Chief Wallace Benson, who had apprehended my client in the act. It was obvious he thought what my client had been caught doing was funny, but you could also tell Judge Hass didn’t think it was funny in the slightest. I misread her anger completely thinking she was going to come down on my client like a ton of bricks but, halfway through the Chief’s presentation of the evidence against my client, Judge Hass interrupted him to ask where the gentleman was my client allegedly committed the disorderly conduct with. The Chief was surprised by her question and stammered he didn’t know. Judge Hass announced, “Case dismissed for failure to prove who the moving party was.” The finality of her decision was emphasized by the banging of her gavel on her bench.
It was as if the weight of the world had been lifted off my client’s shoulders and she started crying. I walked her out to her car and stood there watching as she pulled away. When I turned around, there was Judge Hass. She asked if I’d like to get a bite to eat with her at one of the many fine seafood restaurants on the strip. I did and we shared a wonderful meal, a couple of drinks, and a great conversation together that night. What a delightful person she turned out to be, smart as a whip and funny too. She told me stories about growing up in Charleston and her love of boating and fishing the beautiful rivers and estuaries that surround us.
I never appeared before Judge Hass again but never forgot her either. Here it is almost 50 years later and I still remember that trial like it was yesterday, or think I do anyway. To be sure, I looked her up online wanting to find a picture of her to go with my story. Of course, she’d aged as I have but I still recognized her. I also wanted to make sure I’d gotten the spelling of her name and the facts straight for my story so I pulled up her Post & Courier 2023 obituary and was relieved to confirm I still got it. Right there in her obituary in black and white it says, “She earned M.A.T, M.B.A., and Juris Doctor degrees from the University of South Carolina. She was a complex person with great Ability and talent. She grew up and worked in a man’s world and was not afraid to speak her mind. Early in her career she practiced Family Law and served as a Folly Beach Magistrate. She was especially proud of the fact that the police learned quickly not to bring cases against prostitutes unless they also brought in the johns…” I wonder if she was referring to my case.
The Rule of Law embraces three related principles: no man is above the law, government officials possess only the powers the law gives them, and, when they exceed those powers, an independent judiciary must be available to curtail their abuses. These principles were established a hundred and forty-four years ago in the case of United States v. Lee, 106 U.S. 196 (1882). Mary Lee, inherited Arlington House and 1,100 acres in Virginia across the Potomac River from Washinton, D.C. from her great-grandmother, Martha Washington. She lived on the property with her husband, General Robert E. Lee, until the Civil War during which Congress passed a special tax on Confederate property. The tax due on Arlington House was just $92.07 but the tax commissioners refused to accept payment from Mrs. Lee’s agent and demanded the tax be paid in person. The Federal government seized the property for unpaid taxes and began building the Arlington National Cemetery. After the war, the Lees’ son claimed the tax sale was illegal and sued to evict the Federal agents occupying the land. Justice Samuel Freeman Miller wrote for the Supreme Court, “no man in this country is so high that he is above the law” and “all the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” Lee won the case and the Government was forced to purchase the land from him at fair market value.
The Rule of Law is currently being tested in the case of Trump v. Internal Revenue Service, No. 1:26-cv-20609 (S.D. Fla. 2026). Littlejohn, an employee of an IRS subcontractor, was indicted for the unlawful disclosure of President Trump’s and other wealthy people’s tax returns in violation of 26 U.S.C. 7213(a)(1). Littlejohn pled guilty and was sentenced to sixty months in prison. Several other people whose returns had been disclosed timely filed lawsuits within the two years allowed under 26 U.S.C. 7431(d) and the DOJ zealously defended those actions.
Two years and three months later, President Trump, his sons, and businesses filed a lawsuit seeking $10 Billion dollars in reputational and business damages. DOJ never filed an answer to the complaint and no discovery was conducted. The Court was concerned about the suit being collusive and ordered the parties to file briefs addressing whether the case presented a “case and controversy” required for Federal Court jurisdiction under U.S Const. Art. III, cl. 1. Neither party filed a brief but, instead, on May 18, 2026, not four months after the case was filed, Plaintiffs filed a Notice of Voluntary Dismissal. Two days later the DOJ published a “settlement agreement” providing for the creation of a $1.776 Billion Dollar “anti-weaponization fund” to be financed with taxpayer dollars. The settlement agreement was signed by White House counsel who was neither listed as an attorney of record nor admitted to practice law in Florida. The DOJ also issued a “Release Order” signed only by Acting Attorney General Todd Blanche releasing the President, his family, businesses, and affiliates from “any and all claims, counterclaims, and causes of action … that have or could have been asserted” by the IRS.
A motion was filed to set the settlement aside as a “fraud on the Court.” Plaintiffs protested the court lacked jurisdiction to hear the motion since the underlying “ordinary” case had been settled and dismissed by the parties. The Court disagreed and stated, “The issue before the Court is whether … [the parties] ignored ethical norms, court rules, and legal authority to manipulate the judicial process. The issue is whether they did so to gild their efforts to gain unprecedented access to public funds with the patina of legitimacy. There is nothing ‘ordinary’ about this case…”
The Court went on to rule it had jurisdiction to consider collateral issues under both Rule 11 and the Court’s inherent powers to assure “the integrity of the Court’s jurisdiction and process” and ruled the case violated the case and controversy clause of Article III. “A justiciable controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). “There is no Art. III case or controversy when the parties desire precisely the same result.” GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375, 383 (1980).
The Court specifically found, “… Plaintiffs improperly employed this lawsuit to justify a particular award in this matter – access to taxpayer funds and exemption from audits and other investigations…” The extraordinary $1.776 Billion dollar award “fashioned by the parties for claims that were never litigated, and have yet to be defined, on behalf of unidentified third parties whose future remedies bear no relationship to the claims in this case, indicates that real adverse interests were never before the Court.” Considering the exceedingly brief four-month history of the case, the almost total absence of any docket entries indicating any adversarial actions had been taken, and the Defendant’s deviation from basic litigation strategies pursued in similar cases, the Court concluded, “… Defendants actions (or inactions) as directed by DOJ, and the subsequent ‘resolution’ of this lawsuit leads the Court to conclude the Parties interests were one and the same.” “This action was never about a party seeking judicial resolution of a legal issue or factual dispute. The nature of the suit itself and the conduct of the Parties and counsel from its filing make plain that this was an attempt to use the Court to provide some legitimacy to an agreement to confer immunity to people and entities affiliated with the President and to earmark billions of dollars from American taxpayers to redress grievances not defined in the lawsuit.”
Undoubtedly, Plaintiffs will appeal the District Court’s decision, and we have not heard the last of this latest attack on the Rule of Law. South Carolina Lawyers for the Rule of Law publish this article in the belief that the greatest protection against tyranny is an active, informed citizenry backed by a system of shared power, the rule of law, and strong democratic institutions. When people know the facts, participate in governance, and refuse to let unjust or illegal orders go unchallenged, tryany has no place to take root.
Fitzgerald v. National Rifle Association, 383 F. Supp. 162 (D.N.J. 1974)
Far as I know, nobody in my family was ever a lawyer before me. My father owned a trucking company and I thought his friend and lawyer, Charles J. Irwin, was about the coolest guy I’d ever met. Not at first because of his legal skills but because he drove a light metallic blue, convertible Jaguar XKE. He was the New Jersey State Senator for Union County who lived in a beautiful home in Mountainside, New Jersey where my father would sometimes take me to visit. I remember he had a trophy case full of memorabilia from when he and his beautiful wife, Dianna, were the National roller skate dancing champions. He was the first person to take notice of my desire to become a lawyer and invited me to attend an actual trial with him when I was still in high school. I still remember him turning to me with a smile and saying, “watch me pluck the feathers out of this turkey’s ass,” before doing just that to a witness on cross examination in the trial. He offered me a summer law clerk job after my first year of law school.
Problem was I was a student at Rutgers School of Law in Camden, New Jersey, across the river from Philadelphia, and his office law firm was located in Newark, across the river from New York City. Of course, I took the job and that meant I had to drive forty-five minutes each to the train station in Trenton, then ride the NJ Transit train another forty-five minutes to downtown Newark, and then walk the four or five blocks to his office . The experience was worth every minute of the commute to and from his office that summer each morning. Only to do it in reverse vat the end of every day. The experience working for Mr. Irvin that summer was worth every minute of the commute.
I was one of six law clerks that summer. Charlie, as we were instructed to call him, graduated from Harvard Law School and founded the very successful law firm of Irwin and Post. One of his memorable clients was Val Forgett, Jr., who made a fortune circumventing strict gun control laws by manufacturing replica muzzle loaded, black powder firearms. Mr. Forgett’s friend, Thomas Fitzgerald, didn’t think the NRA was conservative enough and wanted to run for office on the NRA Board. He tried to place an ad in The American Rifleman magazine supporting his candidacy, but the NRA rejected his ad. Charlie was hired to sue the NRA and assigned us as law clerks to work on the case.
As a 1L student I was one of the youngest and least experienced law clerks, so I was assigned to research the ways the NRA operated as a quasi governmental agent. I was surprised how much the State and Federal governments had ceded authority for the regulation of gun training and licensing to the NRA but ultimately that issue turned out to have no effect on the court’s favorable ruling. What I enjoyed most about the clerkship was the lunch sessions presided over by Mr. Irvin. He would order in lunch for everybody and we would all eat sitting around the large table in his conference room. Charlie would go around the table asking each law clerk for a summary of what they had done that morning. Then we’d all discuss whatever topic an individual law clerk was working on and Charlie would give insights on how best to proceed. The discussions were always interesting and animated. Almost every Friday, Mr. Irvin would distribute a new draft of our brief with editorial comments on where more work needed to be done. I was amazed how the brief came together as a group effort all of us were proud to have contributed to.
People generally, but law students too, think courtroom victories are attributable to brilliant lawyers, but, in reality, they are more often the result of the cooperative efforts of many lawyers working together. By the end of the summer and my clerkship that summer the brief was finished. I followed the case and Mr. Irwin’s career closely. He won the case on September 23, 1974 after I’d begun my second year of law school. The issue the Court relied on in granting relief was the NRA Board’s breach of the fiduciary duty to conduct fair and open corporate elections. The American Rifleman was forced to run the ad but Mr. Fitzgerald lost the election. Val Forgett graduated to manufacturing military jets for sale on the international arms market. Mr. Irvin was first appointed by the Governor as the first Director of the New Jersey Department of Consumer Affairs and later as the first Chairman of the Casino Development Authority when gambling was legalized in Atlantic City. Later he went on to represent sovereign Native American tribes to establish their own casinos across the nation. He was wearing western garb looking more and more like Gary Spence, the Wyoming lawyer, in the last picture I saw of him before he passed away in 2005.
I am sure my MAGA family and friends will be surprised to learn I began my career by helping sue the NRA for not being conservative enough. I didn’t go on become a Second Amendment lawyer but what I learned that summer working for Mr. Irvin was the importance of collaboration between lawyers in the real-life practice of law. No lawyer knows all the answers, can do it all themselves. Sadly today client’s cases are too often treated like commodities, traded by lawyers to other lawyers for a share of the fees generated without any thought of working together on the case. The cases suffer and the lawyers never learn to become better lawyers. I admire Charles J. Irwin today for so much more than his XKE but most of all for him teaching me working collaboratively with other lawyers can help you win impossible cases against seemingly invincible opponents.
When we were kids fussin’ over something silly, somebody would always say, “Well, don’t make a federal case out of it!” Then, in what seemed like the blink of an eye, I found myself handling my first Federal Court criminal case. And what heinous crime was it that required prosecution in the Federal Court? Well, it seems the City of Columbia had been forced to expend a considerable sum of money unclogging a storm drain clogged with what must have been five or six years of unsolicited bulk mail advertisements. Bulk mail advertisements an older, long-term mailman had tossed down the storm drain to keep from having to carry in his shoulder bag in the Carolina heat. They made a Federal case out of it alleging his actions violated Title 18 of the United States Code, Section 1703(a), which makes it a crime for a Postal Service employee to unlawfully “secrete, destroy, detain, delay, or open” mail entrusted for delivery in violation of the Postal Regulations. An offense that carried a maximum penalty of five years in prison.
Not only had the defendant postman been charged criminally, but he’d been fired from his job of almost thirty years. Being out of work, he didn’t have enough money to hire any of the more experienced criminal defense lawyers in the firm, so, he hired me even though I’d never stepped foot in a federal courtroom. Fortunately for him, what I lacked in experience, I made up for with incredibly good luck.
First of all, James Bell, a lawyer for the Postal Workers union was representing the postman on a grievance relating to his termination and he was willing to help me out with the trial. I was encouraged to learn Jim also represented the Hell’s Angels and knew his way around the Federal courtroom but that was just the beginning of my good fortune. We drew the Honorable Robert W. Hemphill as our United States District Court Judge as our trial judge and Jim had been Judge Hemphill’s law clerk when he first graduated law school.
Jim filed a motion requesting that Judge Hemphill issue an Order staying the grievance until after the criminal trial to preserve the postman’s Fifth Amendment right against self-incrimination but Judge Hemphill gruffly denied the motion in about five seconds. This shook my confidence in Jim’s prior association with the judge but Jim confidently reassured me everything would work out. What choice did I have but to believe him as the trial began. We sat patiently at the defense table as the prosecutor stood up to address the jury.
The prosecutor began by telling the jury he was not a Department of Justice attorney but had flown down to Columbia all the way from Washington, D.C., and that he proudly represented the United States Postal Service, not the United States of America. Jim tapped me on my shoulder and whispered, “See, I told you everything would turn out.” Judge Hemphill stiffened in his high-back chair behind his elevated desk, his complexion darkened, and he interrupted the prosecutor in the middle of his opening argument, “You aren’t suggesting to the jury the Post Office isn’t part of the United States government, are you?” The overconfident prosecutor stammered, “No. No, sir.” “That’s good because as I recall the Postal Service is authorized by Article I, § 8, cl. 7 of the United States Constitution.” I don’t know what else the prosecutor had written down for his opening statement, but it was obvious it would continue along the same lines. The polished prosecutor began to look every bit as inexperienced as I was struggling to wing it with a new opening statement on the fly. It was Jim who suggested I reserve my opening statement until after the Post Office presented their case, a move I wholeheartedly supported not wanting to make a fool of myself in front of the jury and Judge Hemphill like the prosecutor had just done.
The prosecutor seemed to recover as he began presenting his evidence consisting of testimony and photographs of the sewer drain being unclogged of sopping wet flyers and advertisements and by the testimony and introduction of the postman’s signed confession. Things weren’t looking good for the postman. Looking back on it, I don’t think there was much any lawyer could have done on cross examination, but back then my anxiety grew that my inexperience caused me to miss some opportunity to blunt the evidence against my hapless client. Before I knew it the prosecutor rested his case, and the time had come when I was going to actually have to do something. My heart was racing a mile a minute but, before I could stand up to say anything, Judge Hemphill chimed in asking, “Mr. Prosecutor, the offense charged is failing to deliver the mail in violation of the Postal Regulations. I don’t recall you having entered the particular regulation he is accused of violating into the record.” The prosecutor froze like a deer in headlights before he frantically began searching through the files on his desk for the regulation . Visibly frustrated, he sheepishly asked the judge for 15 minutes to run to the courthouse library to locate the regulation in the Code of Federal Regulations. Judge Hemphill granted his request and said court would be in recess for fifteen minutes as the flustered prosecutor fled the courtroom.
You’d think the prosecutor, being an attorney employed by the Postal Service, would know the Code of Federal Regulations is so voluminous it takes up two or three rows of shelves in the library and would have asked for more time. Just finding the seven or eight volumes of regulations related to the Postal Service somewhere in the middle row already took more than the fifteen minutes granted. Being unable to find the regulation he was looking for in those volumes within another fifteen minutes, the prosecutor gave up and returned to the courtroom empty-handed to avoid further antagonizing Judge Hemphill. When he admitted he was unable to produce a copy of the regulation, Judge Hemphill granted a directed verdict of not guilty and, amazingly, I had won my first Federal Court criminal trial without having to say or do much of anything.
Because the criminal case fell apart, so did the grievance and the postman was not only reinstated but given a desk job to finish out his years before retirement . I couldn’t say I gained much in the way of experience from the trial, but I could say I was undefeated as a Federal Court criminal defense attorney. Oh sure, luck played an enormous role in my victory, but, as I think back on the trial all these years later, I still feel justice was done. I had something every bit as valuable as good facts and favorable law, I had a deserving client. My postman had faithfully delivered the mail through the rain and heat for almost thirty years until his arthritic knees were giving out. What he’d done was wrong, but not five years in prison wrong. He saved his customers the burden of having to throw the junk mail out themselves. The case taught me, as long as you have a deserving client, you always have a chance in a trial. Well, a deserving client, luck, and a Judge like the Honorable Robert W. Hemphill.
Ledford v. Dep’t of Public Safety and State Fund, 428 S.C. 399, 832 S.E.2d 571 (2019).
I can guarantee sooner or later in your career as a lawyer you will be bullied by a judge. There is an old saying that was attributed to Ralph Waldo Emerson by the jurist Oliver Wendell Holmes, Jr., “when you strike at a king you must kill him.” It is hardly surprising this saying caught Justice Holmes’ attention as it certainly applies when a lawyer moves to recuse a judge. How you respond when you are bullied will help define you as a lawyer. A lawyer I represented, E. Hood Temple, refused to sacrifice his client to avoid the personal risk and cost of upholding his attorney’s oath and, by doing so, defined himself as one of the finest lawyers I have ever known.
Allow me to begin Hood’s story at what would normally be the end. Seven years after Hood’s client was bullied, denied compensation for the combined effects of two admitted, career ending work-related injuries, called a liar, and threatened with criminal prosecution by a Workers’ Compensation Commissioner unless he settled his claim on grossly unfavorable terms. Seven years after that same Commissioner also called Hood a liar for refusing to bend a knee and referred him for disciplinary action. Seven years of mounting legal fees and costs, acrimony with other commissioners, and anxiety about personal consequences before the South Carolina Supreme Court finally asked his opposing counsel, who was present when the bullying occurred, what had happened and, as a result of what she said, ruled:
We hold the Court of Appeals erred in finding Commissioner Barden was not required to recuse herself. There was evidence in the record – including Temple’s affidavit – to support Ledford’s contention that Commissioner Barden threatened criminal prosecution unless the case settled. Given the serious allegations lodged against Commissioner Barden, coupled with Commissioner Barden’s adamant denial of threatening Ledford with criminal prosecution unless he accepted the Fund’s settlement offer, we questioned Respondent’s Counsel, Sarah C. Sutusky, at oral argument. Ms. Sutusky was a party to the conference call that underlies the recusal motion, and she corroborated the contents of Temple’s affidavit.
How we got to this remarkable Supreme Court decision is an all too rare story of personal courage and professional integrity worth telling.
Hood was a successful trial attorney and a respected Pee Dee citizen long before his client was bullied by Commissioner Barden. He was a member of the South Carolina bar who served leadership roles in both the state and local bar associations. He received the South Carolina Association of Justice’s Public Citizen Award for his dedicated service to his community. Prior to this incident, he had never felt compelled to file a motion to recuse a judge or commissioner but, when confronted with the bullying of his client in this case, Hood didn’t hesitate to protect his client’s rights and his own integrity.
Both Hood and his client, Scott Ledford, were clients any lawyer would be proud to represent. Scott served as a South Carolina Highway Patrolman for seventeen years. He earned the rank of lance corporal and was a member of the prestigious ACE Team which provides motorcycle escorts for visiting dignitaries. He ran lawn care and fishing guide businesses to supplement his patrolman income. Hood represented Scott for two admitted work-related injuries. The first occurred when he suffered muscle contractions from being tasered in a training exercise so severe they caused compression fractures to four of his thoracic vertebrae. Scott’s claim for his taser injury was settled for a 25% scheduled loss to his back on what’s called a Form 16 preserving his right to seek an increase in the future if his condition worsened. Scott returned to full duty as a patrolman after the settlement and suffered his second accidental injury in a motorcycle wreck pursuing a motorist. Based on the combined effects of both injuries, the State Disability Board determined Scott was unable to return to active duty as a patrolman and granted him disability retirement. Hood was representing Scott to recover workers compensation benefits for the combined effects of his two admitted, career ending injuries when the bullying occurred.
Scott’s claim was initially heard before Commissioner Andrea Roche, who ruled Scott was entitled to ongoing medical treatment and compensation for his motorcycle accident. No appeal was taken from Commissioner Roche’s Order. A year and a half later, the State Fund alleged Scott had reached maximum medical improvement and filed an application to stop payment of his temporary total compensation and to determine permanency. The Fund’s claim was heard before Commissioner Susan Barden.
Those of us who practiced workers’ compensation law were all too familiar with Commissioner Barden’s conservative awards. She was well known for using dubious credibility findings to gut deserving claims for workers’ compensation benefits. Still, Hood didn’t move to recuse her on that ground and presented his evidence at the stop-pay hearing. A month after the hearing, Commissioner Barden called and requested a telephone conference with the attorneys. She began the conference by saying she didn’t believe anything Scott said at the hearing except for his name and age. She indicated she had conducted an investigation into his prior taser injury and accused Scott of lying about his condition following that injury. She commented, “while he may be a former member of the South Carolina Highway Patrol ACE Team, he was not a member of the Truth Team.” She accused him of lying about his earnings from his lawn and fishing guide businesses and called his CPA prepared tax returns “creative accounting.” Commissioner Barden mentioned that, although she had a legal duty to report Scott to the Attorney General to be prosecuted for insurance fraud and perjury, if he settled his claim for whatever “minimal offer” the Fund might make in light of her conference call, she wouldn’t have to make the referral.
Hood was so shocked he immediately dictated a memo of what had been said. He hired a lawyer and ethics professor to research the applicable law and advise him how best to proceed. He ordered a transcript of the hearing held before Commissioner Roche so he could compare Scott’s testimony between the two hearings. He discussed the potential consequences of filing a motion to recuse Commissioner Barden with Scott, who, to his credit, also stood firm. Hood filed his motion, together with a memorandum of law, his affidavit swearing as to what had happened during the conference, and an affidavit of Scott’s CPA attesting his tax returns had been prepared in accordance with accepted accounting practices. It should be noted, opposing counsel chose not to file any response to the motion, supporting memorandum, or affidavits. Still, Commissioner Barden denied the recusal motion without even bothering to hold a hearing and ruled:
“… [Hood] alleges that the undersigned must disqualify herself on the grounds that ‘she threatened criminal proceedings unless the case settles.’ This is a false statement of fact and a frivolous allegation. The undersigned made no such proclamation, either expressly or impliedly. Counsel for the claimant has made such statement with the knowledge that it is false, or at best, a reckless disregard for its truth or falsity. The undersigned will not consider a frivolous and materially false statement as reasonable grounds for disqualification.
Her denial of the motion to recuse was followed by her shockingly unfair Order accusing Scott of being a liar and a criminal, his lawyer of being a liar and unethical, his CPA either being a liar or incompetent, and all of his doctors of being dupes for believing Scott’s lies about his injuries. And, for his admitted, career ending injuries, she ordered that he repay the Fund $18,932.80 in temporary total benefits he’d been paid under Commissioner Roche’s unappealed Order. Adding insult to injury, she also referred Hood to the Office of Disciplinary Counsel for sanction or disbarment.
Commissioner Barden chose the wrong lawyer to falsely accuse of professional misconduct. If she thought accusing Hood of unethical conduct and referring him to the ODC would cause him to tuck tail and run, she was sorely mistaken. All it did was cause Hood to hire me as appellate counsel and we filed a request for Review of Commissioner Barden’s Order by an Appellate Panel of the Workers’ Compensation Commission. The Panel declined Hood’s invitation during oral argument to question opposing counsel as to the truth of what had happened during the conference call and took their fellow commissioner’s word nothing happened. The Panel affirmed her denial of the recusal motion and her credibility findings but reversed her grossly unfair denial of benefits. The Panel awarded Scott an additional 15% disability of his spine and reversed her finding the Fund was entitled to an overpayment. If the Panel thought their Order would placate Hood, they too were sorely mistaken. Hood and I filed an Appeal to the Court of Appeals. Unfortunately, the Court of Appeals ignored the fact opposing counsel had never disputed Hood’s recusal motion or affidavits and felt Commissioner Barden’s findings constituted “substantial evidence” constraining their ability to reverse the Panel’s decision. If the Court of Appeals thought their affirmation would dissuade Hood from pursuing the matter further, they too were sorely mistaken. Hood and I filed a Petition for a Writ of Certiorari to the South Carolina Supreme Court. All the while, Commissioner Barden’s disciplinary referral of Hood languished with the ODC being afraid to take sides.
I already told you at the beginning how this story ended by quoting from the Supreme Court’s decision. Lawyers are taught never to ask questions they don’t already know the answers to and I have been asked why Hood and I kept asking for opposing counsel to be questioned about what happened not knowing what her answer would be in advance. We asked because Hood knew the truth of what had happened and I knew no lawyer in his or her right mind would accuse a judge of such blatant misconduct in a hearing attended by opposing counsel, if it wasn’t true. We both knew opposing counsel had declined to refute what Hood alleged in his motion and affidavit when afforded the opportunity. And Hood knew Ms. Sutusky personally and refused to believe she would violate her attorney’s oath by testifying falsely. So called rules of examination and cross-examination of witnesses aren’t hard and fast and sometimes must give sway to special circumstances in the search for the truth. Thankfully, even though it took seven years, the Supreme Court finally asked opposing counsel what happened and, as stated in their decision, based on what she said the king, or should I say queen in this instance, was slain.
I guess that’s not quite the end of Hood’s story. On remand Hood was able to settle Scott’s claim on favorable terms, Barden’s complaint against him with the ODC was dismissed, and Commissioner Barden’s was allowed to retire as a Workers’ Compensation Commissioner saving countless other attorneys and claimants from her heavy-handed brand of justice. Like the Supreme Court, Hood and I commend Ms. Sutusky for her candor and professionalism, but to my way of thinking, the real hero is E. Hood Temple who refused to be bullied, refused to throw his client under the bus, and honored his attorney’s oath at great personal expense and risk. I take little credit for the ultimate victory in his case, but I will take credit if his story encourages other attorneys to stand firm and honor their oaths when they are confronted by a bully in a black robe in the course of their own practice.
If you want to be a trial lawyer, you might consider forgoing the big bucks offered by big law firms and consider starting your career as a Prosecutor or Public Defender. Then, instead of being stuck drafting legal pleadings, motions, and briefs a senior partner will take credit for, you will be more likely to try cases in real courtrooms. For my money, being a Public Defender will give you the best training because prosecutors too often get lazy having their cases pre-prepared for them by the police while public defenders have to fend for themselves. One of the best trial lawyers I had the pleasure of trying several cases with was Jim Smiley who started out as a Charleston County Public Defender. I remember one case in particular in which Jim’s experience and dedication won what is usually a slam dunk case for the prosecution.
It was a controlled buy narcotics case. A controlled buy works like this: someone caught selling or possessing drugs is threatened with significant jail time unless they agree to buy drugs from their supplier for the police. To ensure the buy is “controlled,” the snitch meets with the police at a predesignated location before the buy where he is searched, wired with a tape recorder, and given marked money to buy drugs from their dealer. The police observe the informant going to and from the dealer’s residence to make the buy. The informant immediately returns to the designated location after the buy and turns over the drugs and the tape recording to the police. To protect the snitch’s identity, the police wait a couple of days before arresting the dealer. A controlled buy is usually a guaranteed trial victory for the prosecution but cutting your teeth defending impossible cases is what teaches Public Defenders how to become real trial lawyers.
Jim’s client denied he sold drugs to the informant who he said gave him the marked money to repay a prior debt. Never mind what that prior debt may have been for, he refused to cooperate or plead guilty. Jim thoroughly reviewed all the reports, carefully listened to the tape of the buy, and discovered a thirty second silence on the tape that potentially blew a big hole in the prosecution’s controlled buy theory of the case. When and how he used this discovery was a master class in trial advocacy.
Jim didn’t ask many questions as the detective laid out the controlled buy playbook for the benefit of the jury on direct examination. By the time the detective finished it sure sounded to the jury like Jim’s client was guilty beyond a reasonable doubt. On cross examination, Jim began his attack. “Why do you search the informant before you gave him money to go buy drugs with?” “We searched him thoroughly to be sure he didn’t have the drugs on him.” “And, you said you watched him going to and from the dealer’s residence, why is that?” “We maintain surveillance to make sure he didn’t have the drugs hidden somewhere along the way to buy the drugs.” “And you searched him and kept him under surveillance to prove the drugs he gave you after the buy must have come from the defendant, isn’t that right detective?” “Yes, sir.”
Then Jim played the tape, with the volume turned up so everyone could hear the background noise Jim heard – footsteps. To emphasize what he’d heard, Jim paced back and forth in front of the jury box in perfect time with the muffled footsteps you could hear on the tape. Steady at first but then, all of a sudden, Jim froze like someone had yelled “red light” in the childhood game as the footsteps stopped. Jim stood frozen in front of the jury for the entire thirty seconds before starting to pace again when the footsteps restarted. He paced until you could hear the informant knocking on the defendant’s door followed by a brief hey and hi, you got the money, yeah, thanks, and see you later. Then you could hear the door close as Jim once again paced with the uninterrupted footsteps back to the detective where you heard the informant turn over the drugs and tape. When the tape finished, Jim asked, “So detective, my question to you is this, since you had him under surveillance the whole time, what was he doing during those thirty seconds when he stopped walking on his way to allegedly buy drugs from my client?”
You could see the look of panic on the detective’s face as he looked towards the prosecutor who was just as surprised as he was. Finally, the detective was forced to admit he was parked down the street to avoid being seen and the informant wasn’t in his line of sight when he walked around the corner of another building in the dealer’s apartment complex. Jim pressed his advantage, “Well, he knew the location this buy would go down because he’s the one who gave it to you, isn’t that right detective?’ “So he could have hidden some drugs there and picked them up after you searched him, couldn’t he?” “So, since you couldn’t see him when he went around the building, you don’t know what he was doing during that missing thirty seconds he was out of your sight, do you detective?” “And from all you or anybody else can tell from the tape, the informant could have been giving him the marked money to repay a debt owed to my client for some other reason, couldn’t he?”
Just like that the detective and prosecution lost control of their controlled buy case because of Jim Smiley’s hard work and experience . He showed the buy wasn’t controlled and, therefore, the prosecution had failed to prove his client’s guilt beyond a reasonable doubt. Just as important as the missing thirty seconds on the tape, was how Jim was able to demonstrate it and its significance for the jury. That level of trial advocacy can’t be taught in a law school classroom; it can only be learned in a real courtroom. If you want to become a real trial lawyer, you might consider beginning your career in a job that will actually give you some real trial experience.
Irving Steinberg never let a little thing like childhood polio hold him back, he went on to become a lawyer. When he opened his law office at 61 Broad Street in downtown Charleston in 1927, he never let a little thing like antisemitism hold him back either, he built a successful law practice representing clients other gentile lawyers wouldn’t represent. He helped draft and pass the Workers’ Compensation Act in 1936 protecting all South Carolina workers. He helped organize the churches during the struggle for civil rights becoming a member of the politically powerful Broad Street Ring of lawyers. And, somehow he found the time to mentor a very young lawyer showing him the true meaning of winning .
As a new associate in Irving Steinberg’s law firm, he asked me to accompany him to a worker’s compensation hearing in Dorchester County. He gave me his keys and sent me to fetch his car parked at Batson’s, the last service station in downtown Charleston, where only Mr. Steinberg was allowed to park. Mr. Batson, wearing his signature pith helmet, had Mr. Steinberg’s white Cadillac Eldorado convertible, with red leather interior, all gassed up and the top down ready to go before I got there. Not recognizing me meant Mr. Batson had to give me a long speech telling me how lucky I was to be working for Mr. Steinberg while I became more and more anxious not wanting to keep Mr. Steinberg waiting. I finally got away and picked Mr. Steinberg up in front of the office. He jumped into the passenger seat and told me to head for the interstate. It was a beautiful day that no one enjoyed more than we did riding out of town in Mr. Steinberg’s Eldorado with the top down.
The hearing wasn’t scheduled until later that afternoon and I wondered why we were leaving so early. First stop was a little corner store off the side of the road in the tiny town of Dorchester, South Carolina where Mr. Steinberg was greeted like Hollywood royalty. He talked for a good forty-five minutes with the store owner. As I waited with the car drinking a coke word of Mr. Steinberg’s visit must have spread as children began to appear out of nowhere just to get a look at him. Finally, after laughs, hugs, handshakes, and endless pats on children’s heads, we were on our way again but still not heading to the hearing. Next stop was a lawyer’s office in downtown St. George where Mr. Steinberg spent a good hour politically strategizing and shoring up a long-standing client referral source. Mr. Steinberg had a quick wit and kept the lawyer laughing throughout their meeting but, as with the store owner, I could tell there was a true bond of friendship between them.
Finally, it was time to drive to the hearing. We arrived a good half hour early. To my surprise Mr. Steinberg told the Commissioner he’d settled the case with the insurance adjuster. The Commissioner was glad to hear it but told Mr. Steinberg, that being the case, there was no need for Mr. Steinberg to have made the trip. Mr. Steinberg disagreed, saying he had other business in the area and how he was always glad to see the Commissioner reaffirming their friendship as well. He then explained to the Commissioner when the hearing was called, he was going to ask that the Commissioner award his client a twenty percent disability to her foot, the adjuster would argue for five percent based on the doctor’s impairment rating, and the Commissioner should then award his client fifteen percent, the amount he and the adjuster had agreed upon to settle the case. By this time the adjuster had arrived with the clincher settlement agreement and check in hand, agreed to the settlement, and jokingly accused Mr. Steinberg of highway robbery. Mr. Steinberg jokingly shot back accusing the adjuster of being a miserly skinflint and said he was lucky to be getting off so easy. The Commissioner, adjuster, and Mr. Steinberg all had a good laugh. About that time, Mr. Steinberg’s client arrived and Mr. Steinberg asked to speak with her outside.
We went outside and Mr. Steinberg uncharacteristically fussed at his client, asking her, what are you doing? The bewildered client didn’t know what to say. Mr. Steinberg told her to untie the shoe and instructed her on how to limp around on her left foot as he explained how the no-good, good for nothing company doctor had only given her a five percent rating to her foot but he knew the Commissioner and was going to get her way more than that. So, back into the hearing we went. The client limping on her untied left shoe, Mr. Steinberg passionately arguing she was entitled to a twenty percent award, and the adjuster just as emphatically arguing for the doctor’s rating. The Commissioner complimented both of them for their fine advocacy on behalf of their clients and, following the script, awarded Mr. Steinberg’s client fifteen percent. The actual hearing didn’t take five minutes. The clincher agreement was signed by the client, signed off on by the commissioner, and the settlement check delivered to Mr. Steinberg. Everybody was happy and hands were shook all around. The adjuster knew Mr. Steinberg probably could have gotten twenty percent and was glad to close his claim without having to hire a lawyer. The Commissioner was glad to have a free afternoon and clear another case off his docket. Mr. Steinberg’s client thought Mr. Steinberg hung the moon and she was right. And, me, well I learned what real winning in a courtroom looks like. A good lawyer leaves the courtroom with a smiling client. A truly great lawyer leaves with everybody smiling.
The local narcs could never catch the east side curb side drug dealers who had look outs and would scatter before the narcs could get close to them. So the narcs staked-out the dealers to catch College of Charleston students buying weekend party supplies. They would observe a sale and radio a description of the student’s car to waiting police cruisers who would blue light the students for minor traffic offenses as a pretext to search for the drugs they already knew they had. One Friday evening, the narcs observed a car pull up and exchange something with a dealer. An alert went out over the police radio, “green Mustang 5.0 just pulled up and bought something.” A more seasoned supervisor quickly squawked back over the radio, “Never mind, that’s just Bobby Howe picking up his fee for the weekend.”
Although Bobby much preferred cash, his easy payment plans for criminal fees were as flexible as his office accounting system. Some of his fees I recall included a new screen porch on the back of his house, a built-in sauna, a gigantic jacuzzi tub, new hardwood floors, and more rooms painted than the Plaza Hotel but the fee of his I want to write about this morning involved ten gallons of top-secret anti-fouling black paint the Navy used on nuclear submarines.
Bobby had a bad habit of leaving his 17 foot 1963 Boston Whaler tied up to whatever dock he ended up at after a long, hard day partying out on the water. The factory installed blue anti-fouling paint had long since lost its effectiveness, so he’d often end up having to spend hours scrapping barnacles off the bottom his boat by hand at local car washes. He figured the submarine paint was worth a fee because it would last forever and he never gave a second thought to it being highly illegal for anyone to possess any.
Bobby being Bobby could hardly wait for the submarine paint to dry before taking his boat out for a shake-down cruise in the harbor. He was still dressed in his suit slacks and white shirt as he rode full throttle across the harbor in the late afternoon sun. There’s no telling what other contraband may have been on board when the military style speed boat with a 50 caliber machine gun mounted on the bow pulled up alongside and the captain, dressed in full military body armor, began hailing him over a megaphone. Bobby thought he heard, “We are armed, and will use force!,” so being Bobby he kept looking straight ahead and kept going at full speed. Again, he heard, “We are armed and will use force.” What? Over a couple gallons of lousy paint Bobby thought to himself but, not wishing to be machinegunned to pieces, he decided to throttled his engine back and talk his way out of it. When the military craft slowed alongside, he heard the captain actually ask, “Are you a member of the Orange Force?” Confused, but relieved at the same time, Bobby replied, “Well, no, officer, I was just out test driving my new paint job.” Before he could regret mentioning the paint, the military craft sped off in another direction. It turned out Bobby had gotten himself tangled up in a military training exercise on securing Charleston harbor in the event of a terrorist attack.
Bobby’s father nicknamed him Cat because cat’s have nine lives but I’m afraid his father seriously underestimated the number of lives Bobby would run through. Whatever number that number may have been, he was clearly down another life because of this submarine paint fee. He lost that 63 Whaler in Hurricane Hugo, so we never found out how long that illegal submarine paint would keep the barnacles off the hull, but I’ll just bet, like Bobby himself, nothing ever stuck to it.
My friend, Bobby Howe, the Plea King of the Charleston County Court of General Sessions, was without a doubt the quickest lawyer on his feet I ever met. He once put me in a case representing a husband and wife charged with trafficking more than 100 grams of cocaine. That’s Trafficking 3rd Degree, a violent felony carrying a mandatory twenty-five years in prison, no probation, no parole. To boot, they were also charged with possession or distribution of drugs in the proximity of a school, also a violent felony carrying fifteen years on top of the underlying drug sentence. To put it in legal terms, they were in some really deep shit.
What they really were “keepers” in the parlance of the drug trade. They kept the real trafficker’s cocaine in their house for safekeeping, literally in a safe only the trafficker had the combination to open. They were chosen for the job because they had no prior records and neither of them used or sold drugs. The husband worked a legit 9 to 5 job while the wife was a student at Trident Tech studying to be a phlebotomist. And how much were they paid to be keepers? Not much more than the free rent on their nice home. It seemed like a good deal to them because they mistakenly thought, as long they weren’t actually doing the dealing, they’d be safe too. They thought that right up until they were led out of their nice home in handcuffs following the execution of a search warrant by the Drug Task Force that found the trafficker’s couple kilos of cocaine they were keeping safe in his safe.
I wasn’t privy to where Bobby got the sizeable fee we were paid but was glad for the referral. We reviewed the search warrant and found it was solely based on information provided to the Drug Task Force by a “confidential reliable informant.” We naturally asked our clients who knew what they were doing and both said they never told anybody they were keepers to keep from being robbed or worse themselves. From that we logically deduced it was the actual dealer who was the informant. He’d probably been caught dealing and offered a deal in exchange for him ratting out the person he got his drugs from.
Thus began the legal battle to compel the Drug Task Force to disclose the identity of the so-called confidential reliable informant. The law recognizes the government has a privilege to withhold the identity of confidential informants; however, it is not an absolute privilege. A court can order disclosure when required by fundamental fairness. The United States Supreme Court held the courts must balance the need to protect informants and to encourage citizens to provide information to police against the defendant’s right to prepare and present a defense. The privilege is most frowned upon when the informant was a participant in the alleged crime, the only witness relied upon obtaining the warrant, and it can be shown the informant may have information establishing the defendant’s innocence.
The Task Force steadfastly denied the dealer was the informant forcing us to file a formal motion to compel his disclosure. As the date for a hearing approached, the Solicitor assigned to prosecute the case requested a meeting. He conceded our clients might be patsies but maintained, even if we were right about the dealer being the snitch, our clients would still be guilty of the crimes alleged and still be facing the minimum, mandatory sentence of twenty-five in prison. Bobby just smiled sensing the makings of a plea bargain. After some back and forth Bobby negotiated a sweetheart deal for our wayward couple. The clients would plead to Trafficking, more than ten but less than twenty-eight grams, still a violent felony but only carrying from three to ten years and eligible for parole and also plead to possession or distribution of drugs in the proximity of a school, carrying up to fifteen years but also eligible for parole, with the sentences to run concurrently. Furthermore, Bobby could pick which judge he wanted to plead before.
Bobby explained to our clients, if we lost our motion, they would almost certainly have to serve the mandatory twenty-five-year sentence, while, if they took the plea they could serve as little as three and a third years before making parole. Probably a little on the rosy side as legal advice goes but arguably within the realm of possibility. Being young kids scared to death of spending eternity in prison, they wisely decided to accept the plea.
Bobby picked the Honorable Richard E. Fields to plead before. Judge Fields was an old family friend who genuinely loved Bobby. While it no longer mattered since our clients were pleading guilty, Bobby still argued to Judge Fields it was probably the real dealer getting away scot-free who ratted out our clients. We both, Bobby for the husband, me for the wife, emphasized our client’s young age, lack of a prior record, and sincere remorse for getting themselves involved in such a serious crime. Judge Fields spoke nicely to our clients and almost apologized to them for having to impose concurrent sentences of ten years for Trafficking 3rd Degree and seven years for the proximity charge. As we let out a big sigh of relief and turned to leave, Judge Fields almost apologized to us and said under his breath, “I couldn’t do any better than that.”
This is the part of the story where Bobby being quick on his feet paid off for our clients. Without skipping a step, Bobby performed a perfect pirouette in the courtroom, turned back towards the judge and said, “Well, Judge, since you asked, Trafficking 3rd degree is still considered a violent offense under Code Section 16-1-60 requiring that they serve one-third of the sentence, or three and a third years, before being eligible for parole, so if you gave them the same sentence but switched the ten years you gave them for the trafficking charge with the seven years you gave them for the proximity charge, it would be the same sentence but they’d only have to serve two and a half years rather than three and a third years before being eligible for parole the way the way the sentence is now.” It surprised Judge Fields so much he revised his sentence the way Bobby requested.
Back at the office, it took me a pencil, paper, calculator, and a good five minutes to calculate what Bobby had calculated in his head in the time it took him to turn around. My dear friend may have at times needed remediation on the law, procedure, and evidence, but he was lightning fast on his feet in a courtroom. Any reasonable lawyer, me included, would have been thanking their lucky stars for the incredible deal we’d gotten our oh so guilty clients, but not Bobby. He made a great deal even better so fast it would have made your head spin as fast as he spun around in the courtroom that day.
7213(a)(1). Littlejohn pled guilty and was sentenced to sixty months in prison. Several other people whose returns had been disclosed timely filed lawsuits within the two years allowed under 26 U.S.C. 
7431(d) and the DOJ zealously defended those actions.
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