Judicial Merit Selection Commission

Sen. Glenn F. McConnell, ChairmanJane O. Shuler, Chief Counsel

Rep. F.G. Delleney, Jr.,V-Chairman

Sen. Robert FordBradley S. Wright

John P. FreemanPatrick G. Dennis

John Davis HarrellBonnie B. Goldsmith

Sen. John M. “Jake” Knotts, Jr.Andrew T. Fiffick, IV

Amy Johnson McLesterHouse of Representatives Counsel

H. Donald Sellers Post Office Box 142J.J. Gentry

Rep. Alan D. Clemmons Columbia, South Carolina29202E. Katherine Wells

Rep. David J. Mack, III (803) 212-6623Senate Counsel

Fact-Finding Report

of the

Judicial Merit Selection Commission

from the

February 19, 2009, Hearing Regarding

Judge Kenneth Goode’s

Candidacy for Re-election as

Judge of the Circuit Court,

At-Large, Seat 8

Dated: February 27, 2009

The Judicial Merit Selection Commission convened at 1 p.m. February 19, 2009, and conducted an eight-hour hearing for the purpose of hearing facts related to Judge Kenneth Goode’s candidacy for re-election as Judge of the Circuit Court.

Members of the Judicial Merit Selection Commission present were as follows: Chairman Glenn McConnell, Vice-Chairman Greg Delleney, Senator Robert Ford, Senator Jake Knotts, Rep. Alan Clemmons, Rep. David Mack, Professor John Freeman, Ms. Amy McLester, Mr. John Harrell, and Mr. Don Sellers, as well as Staff Counsel Jane Shuler.

At the outset, Chairman McConnell explained the jurisdiction of the Commission as well as the parameters of the hearing. Members of the Commission unanimously agreed with the understanding that this was solely a fact-finding hearing.
Jurisdiction of the Commission for the Hearing
Specifically, on February 11, 2009, the General Assembly met in Joint Assembly in accordance with the terms of the Concurrent Resolution adopted by both Houses to elect certain judges, including a judge of the Circuit Court, At-Large, Seat 8, Judge Kenneth G. Goode.

At the Joint Assembly and upon his motion, Sen. McConnell published the following letter received from Judge Goode to the members as follows:
“State of South Carolina
The Circuit Court of the Sixth Judicial Circuit
Kenneth G. Goode, Judge
February 11, 2009
The Honorable Glenn McConnell
Chairman, Judicial Selection Committee
RE:Candidacy for Reelection to Judgeship
Dear Senator McConnell:
I have read with concern the article in today’s State newspaper concerning my candidacy for reelection. I understand the nature of the allegations which have been made. I further understand the allegations against me have arisen since the time of my judicial screening.
While I believe my decisions have been sound and appropriate in the cases reported on by the newspaper, I am also convinced it is totally unfair to the Legislature for me to ask to be voted upon with the allegations pending and with the allegations not having been fully reviewed by the screening committee.
As you are aware, judicial ethics prevent me from publicly responding to the allegations reported in the newspaper. I find myself in a situation where I cannot do anything to refute the allegations and where the Legislature is being asked to vote upon my candidacy in the face of allegations which have not been considered by the screening panel.
It is important to me that all of the facts be known before I am voted upon. I am convinced when the facts are reviewed my conduct will be found to have been appropriate in all of the cases reported upon in the newspaper.
The integrity of the judicial system demands that I not be voted upon at this time. The issues raised in my opinion go to the integrity of the process and are much greater than the issue of my personal candidacy.
In order that this matter be resolved in fairness to all concerned and in fairness to the Legislature, I ask that my candidacy be carried over and be resubmitted to the Judicial Screening Committee for full review. I look forward to this process to prove to the citizens of this great state that my judicial qualifications are beyond reproach.
I thank you and the members of the General Assembly for considering this request. I am available at the State House today should anyone have any questions for me or if I can provide any assistance whatsoever.
Yours very truly,
Kenneth G. Goode”

Senator Mike Fair then made a motion to the members of the Joint Assembly that the election to fill the position of Judge, Circuit Court, At-Large, Seat 8, be carried over and that the candidacy of Judge Goode be referred to the Judicial Merit Selection Commission. His motion was subsequently adopted by the members of the General Assembly. (House Journal, February 11, 2009, pp. 22-23).

Therefore, Senator McConnell explained that at the February 19, 2009, hearing the Commission would hear facts regarding matters in response to the motion passed by the Joint Assembly. Specifically, that motion directed the Commission to hear matters solely on the cases reported in The State newspaper on February 10-11, 2009, that is, the State v. Talisha Lavette Smith and State v. Zail Ray Gavin.[1] Thus, the purpose of this hearing was to gather the facts related to Judge Goode’s handling of these matters and submit a fact-finding report to the members of the General Assembly for consideration. Senator McConnell further noted that the hearing was not convened for the purpose of finding Judge Goode “qualified” or “unqualified.”

The articles referenced in The State were as follows:
Title: “Exclusive: Senate president to vote against judge”
Summary: Senator McConnell confirmed on February 10, 2009, that he will vote against the re-election of Judge Goode due to his pattern of “abuse of discretion.” Specific concerns were raised regarding Judge Goode’s handling of the Richland County child abuse case where he gave no prison time to Talisha Smith. Also, specific concerns were raised over the State v. Gavin case where there were Peeping Tom and indecent exposure charges in Richland and Lexington counties. Gavin had prior Peeping Tom and indecent exposure convictions and he had violated probation; however, he was sentenced by Goode to no more than six months in prison. Senator Fair agreed with Senator McConnell’s sentiments and introduced a bill January 29, 2009, requiring mandatory prison sentences of two years for child care providers convicted of seriously harming children.

Title: “The Fallout”
Summary: On December 8, 2009, Judge Goode gave a woman no jail time after she admitted injuring an infant at a day care center. Since then, the 5th Circuit Solicitor’s Office has asked Judge Goode to reconsider his ruling; Judge Goode had not responded as of February 11, 2009. Senator Fair’s bill that would require mandatory prison sentences of two years for child care providers convicted of seriously harming children would also require a minimum of two hours training yearly for home day operators. (Transcript of Public Fact Finding Hearing on February 19, 2009, pp.3-10) heretofore referenced as Transcript).

Report of the Facts based on the Testimony Presented and Exhibits Entered into the Record

Opening statement—Judge Goode

Judge Goode opened thanking the Commission for allowing him to provide additional information as it seems necessary and appropriate on the two cases that were previously handled by him. He explained that he grew up in a family of modest means in Fairfield County and worked his way through Furman as well as U.S.C School of Law. Judge Goode stated that he practiced in his hometown of Winnsboro for 20 years and was elected to the Circuit Court bench in 1999. He explained that he is proud to be a public servant and attempts to do his job with diligence. He noted that he has issued thousands of rulings in both civil and criminal cases as well as imposed thousands of sentences on criminal defendants. (Transcript, pp. 12-13).

With respect to the Smith case, Judge Goode stated that it has always been his intention to reconsider the sentence in that case, which was evidenced by an order he signed just one to two days after the sentence was issued.He explained that he has not been assigned to Richland County since that week and had not heard it. He stated, “I have read the transcript in that case, and based on the transcript, I believe the sentence needs to be reconsidered.” (Transcript, p.13).

Judge Goode reported that he had scheduled a hearing on the reconsideration motion for this week, but he continued that hearing to a later date, as to rule at this time would call into question the ultimate disposition. He did not want the integrity of the final sentence he pronounces to be tainted by the appearance that it was motivated by inappropriate considerations. (Transcript, p.14).

He stated that he tries to treat everyone who appears before him in the same manner as he would want his family members and himself treated. He stated that he keeps on the back of his placard on the bench the inscription,“courtesy, timeliness, and fairness,” as a reminder of how to treat people who appear before him. (Transcript, p.15).

Judge Goode explained his general philosophy when he sentences a defendant who has pled guilty; that is, he considers the following elements in making his sentencing determination: rehabilitation, deterrence, and punishment and he formulates a combination of those to determine a just sentence.When sentencing a defendant who has caused bodily harm to a victim, he noted that he gives weight to the victim’s medical records,because it’s the professional opinion on the condition of the victim after the crime. When imposing a sentence, Judge Goode stated that within his judicial discretion, he will listen to the solicitor, the victims, and the defendants.He noted that he will give great weight to a professional’s opinion about the injuries, when available. (Transcript, pp.15-17).

State v. Talisha Smith
The Transcript of Record reflected that Judge Goode presided over the December 8, 2008, Guilty Plea and Sentencing Hearing of Talisha Lavette Smith. Ms. Smith pled guilty to Section 16-3-95, “Great Bodily Injury to a Child,[2]” a crime that carries a maximum sentence of 20 years and is considered a violent offense, which requires registry with the DSS Child Abuse and Neglect Registry. Judge Goode sentenced Ms. Smith to 10 years suspended to 5 years probation with any mental health counseling recommended and that she be placed on the DSS Child Abuse and Neglect Registry. (Exhibit 1, p. 30; Transcript, p.19).
Judge Goode’s Initial Testimony
Judge Goode initially testified that he signed an order to reconsider Ms. Smith’s sentence within one or two days after sentencing and that he has not heard that matter yet. He noted that he believed it was an appropriate case for reconsideration.He stated, “I have read the transcript. I think it is--and I have signed an order that I will resentence in that case, and I feel that it is an appropriate case for resentencing.” (Transcript, p.18, p. 20, 33).

He further testified that,to his recollection, admission notes from an emergency care facility related to the victim’s injuries and some photographs were put forward. Judge Goode reported that no admissible evidence was offered concerning the permanency of the injuries suffered by the victim. He explained that another solicitor initially handled this case but she was on maternity leave. He reported that the plea proceedings took about 30 minutes. (Transcript, pp.22- 24).

As for the comment he made which upset Patrick and Michelle Gaddie, the victim’s parents, regarding Sgt. Patrick Gaddie’s army attire, Judge Goode noted that he was trying to compliment the Sergeant, and his comment somehow got twisted. At the hearing, he turned and apologized to the Sergeant and explained that he was trying to compliment him on defending our country. (Transcript, pp.23- 24, 36).

According to Judge Goode, it was not unusual with a serious injury for there to be expert medical testimony and evidence. He stated that it was unusual for the State not to have an expert in a serious case. He further testified that he has been reading the rules on reconsideration and there is a conflict on whether he can receive additional evidence, unless under extraordinary circumstances. He explained that Court Administration will allow him to hear the matter in Richland County. (Transcript, pp. 26-27, 29).

Judge Goode stated that there was no plea recommendation by the solicitor, and this case was pre-tried in chambers. He testified that while there was not testimony from law enforcement and no medical records presented, the solicitor asked for substantial jail time. Judge Goode also testified that he had no recollection of the pretrial conversations, except as to the solicitor stating a particular range she thought appropriate. He stated that the solicitor’s office set this matter for a plea hearing, as the solicitor controls the docket in Richland County. (Transcript, pp.31- 35).

Patrick Gaddie’s Testimony (Victim’s Father)
Sgt. Patrick Gaddie offered his testimony and submitted an Affidavit of Complaint regarding Judge Goode’s comments and the lenient sentence imposed at the Smith sentencing hearing. Sgt. Gaddie testified concerning a report in the past two days from a speech language pathologist who is working with Kendra, and that she stated in her report that Kendra’s speech is progressing at a much slower rate, she continues to wear a bib now due to drooling, and it continues to be a present problem due to her traumatic brain injury she received in March. He noted that this was a life-changing injury for his daughter. (Exhibit 3; Transcript, pp.36- 39).

He explained that the Investigator Richard Carter with the Richland County Sheriff’s Department investigated this case. Sgt. Gaddie stated that he initially worked and met regularly with Solicitor Anna Good and she had a packet of medical records related to Kendra. Sgt. Gaddie further stated that his wife and he insisted on no plea and felt it was a strong case for the jury. (Transcript, pp. 40- 45).

According to Sgt. Gaddie, information was passed to Judge Goode, but he was not sure if it was the packet of medical information. He reported that before the guilty plea started, he saw the Solicitor, defendant’s attorney, and Judge Goode go back in chambers. Sgt. Gaddie testified that his wife spoke eloquently about Kendra’s injuries at the plea hearing but he did not speak. He explained that there were no other witnesses there, as they did not think they needed them, since the defendant was pleading guilty. He noted that he thought the evidence presented by the Solicitor Fent, whom they worked with for a few weeks, was enough. Sgt. Gaddie explained that it was his interpretation at the sentencing hearing that Judge Goode was more worried about the guilty, Ms. Smith, than the Gaddie family. He stated that they thought they were there at the sentencing hearing to punish Ms. Smith for what she did to his daughter. He also noted that Judge Goode commented, “some wrongs cannot be made right.” (Transcript, pp. 45- 51).

The Transcript of Record reflects with respect to that comment, Judge Goode stated:

“We have a, a morose sharing of issues here: you lost a newborn child, I lost a newborn child, and of course the victim of this tragic, tragic situation. The government of the United States through the Constitution has put on my shoulders to do what is legal and what is right, and that's, that's an easy thing to do sometimes. Sometimes it's anything but easy. Part of my job is to --excuse me. Sometimes your mind take you places that you don't like to go, and I know you know this as well or better than me. But there are some wrongs that simply can't be righted.” (Exhibit 1, p. 28).

Michelle Gaddie’s Testimony (Victim’s Mother)
Ms. Gaddie, who offered an Affidavit of Complaint against Judge Goode’s handling of Ms. Smith’s sentence, first described the background of her daughter’s case at the public hearing, stating that the injury occurred on March 19, 2008 at the home of Talisha Smith who ran a day care for children in her home. She noted that Ms. Smith pled guilty to the charge of “Great Bodily Injury Upon a Child” on December 8, 2008, which is a felony abuse charge caring a maximum sentence of 20 years. (Exhibit 4, Transcript, pp. 52-55).

According to Ms. Gaddie, at the very beginning of the hearing, Judge Goode appeared to lose his train of thought at which times, he would bring his hand to his head. She noted that she spoke at length at the sentencing hearing about the extent of Kendra’s injury. Ms. Gaddie testified that she felt Judge Goode took a great interest in Ms. Smith’s anxiety and how sentencing would hurt her children. She also stated that the arresting officer Carter was present at the hearing, but Judge Goode only wanted to hear from her husband and her. (Transcript, pp. 55-57).

She explained that the solicitor informed her it was not necessary for Officer Carter to testify due to the fact Ms. Smith was pleading guilty and due to the severity of the crime. Ms. Gaddie reported that she read a very lengthy Victims’ Impact Statement at the sentencing hearing. She stated that she does not recall Judge Goode stating, “Be happy to hear from the family or police officers,” as reflected on line 23, p. 15 of the Transcript. Ms. Gaddie testified that she saw Judge Goode flipping through the photos of her child taken when she was in ICU showing great bodily injury. She indicated she was satisfied with the performance of the Solicitor at the hearing and noted that she offered photographs of her daughter’s injuries for the record; two of which show the handprints on the right side of her daughter’s face. (Transcript, pp. 57-66).