In re Clontz

376 N.C. 128

852 S.E.2d 614

IN RE Inquiry Concerning a Judge, No. 18-193

Edwin D. CLONTZ, Respondent

No. 65A20

Supreme Court of North Carolina.

Filed December 18, 2020

ORDER

The issue before this Court is whether Judge Edwin D. Clontz, respondent, should be publicly reprimanded, as recommended by the North Carolina Judicial Standards Commission, for violations of Canons 2A and 3A(4) of the North Carolina Code of Judicial Conduct amounting to conduct prejudicial to the administration of justice that brings the judicial office into disrepute in violation of N.C.G.S. § 7A-376(b). For the reasons stated below, we agree with and adopt the recommendations from the Commission.

On 4 February 2019 the Commission filed a Statement of Charges against respondent alleging respondent violated Canons 1, 2A, 3A(3), and 3A(4) when he held a probable-cause hearing without a defendant's court-appointed counsel present on or about 18 July 2018. Respondent waived personal service and filed an answer to the Factual Allegations in the Statement of Charges on 28 February 2019. Respondent's hearing before the Commission was originally scheduled for 11 October 2019 but was continued until 13 December 2019. Prior to this hearing, counsel for the Commission and respondent filed a Stipulation of Facts on 19 November 2019.

On 13 December 2019 a disciplinary hearing was held before the Commission Chair Judge Wanda G. Bryant and Commission members Judge Jeffrey B. Foster, Judge Sherri Elliot, Mr. William H. Jones Jr., Ms. Allison Mullins, Mr. Cresswell D. Elmore, and Mr. Grady H. Hawkins. Based on the Stipulation of Facts and its exhibits, the Commission found the following facts by clear, cogent and convincing evidence:

1. On or about July 18, 2018, Respondent was presiding over probable cause hearings in criminal district court when Assistant District Attorney (ADA) Kristin Terwey, representing the State, made a motion to continue State v. Jermaine Logan, Buncombe County File Nos. 18CR86478–84.

2. In response to ADA Terwey's motion to continue, Mr. Logan's court-appointed attorney Roger Smith objected to the State's motion and demanded a probable cause hearing on behalf of his client. Respondent then held the matter open for the parties to confer and instructed them both to return to court at 2:00 pm.

3. Respondent did not realize that Mr. Smith was court-appointed, but was obviously aware that Mr. Logan was represented by counsel in his felony criminal matter.

4. At or about 2:00 pm, Respondent resumed court. ADA Terwey was present for the State and had secured the necessary witnesses to proceed with Mr. Logan's probable cause hearing. Mr. Logan, who had remained in custody since his arrest, was brought from the jail to a holding cell adjacent to the courtroom with a barred window looking into Respondent's courtroom as indicated in the photographs attached as Exhibits 1 and 2 to the Stipulation of Facts.

5. Mr. Smith failed to return to the courtroom at 2:00 pm as Respondent had instructed. Respondent knew Mr. Smith from other criminal cases and had previously experienced situations when Mr. Smith was not present in a timely manner for court appearances. Respondent then directed the courtroom bailiff to communicate with the other courtrooms in an effort to determine if Mr. Smith was elsewhere in the courthouse. The bailiff could not locate Mr. Smith in any other courtroom.

6. At or around 2:50 pm, Respondent had concluded the day's calendar with the exception of Mr. Logan's case and one other matter and Mr. Smith still had not returned to the courtroom.

7. Without Mr. Smith present, and knowing that Mr. Logan was represented by counsel in the felony criminal matter before him, Respondent then instructed ADA Terwey to call Mr. Logan's case for hearing. Specifically, at the start of the probable cause hearing, Respondent stated on the record as follows:

"Defense attorney has asked for a probable cause hearing. He was told to be here at 2 p.m. It is now 2:50 p.m., and the attorney is not present. State is prepared to proceed on probable cause. They will call their first witness."

8. Upon receiving Respondent's instruction to proceed without Mr. Logan's counsel present, ADA Terwey hesitated but then called her first witness as directed by Respondent.

9. During the probable cause hearing, Mr. Logan remained in the holding cell adjacent to the courtroom. Mr. Logan cross-examined the State's two witnesses through the barred window of the prisoner holding area while he remained handcuffed and without access to pen or paper. It is routine in Buncombe County for in custody defendants to remain in the prisoner holding cell during court proceedings unless a specific request is made by a party to bring the defendant into the courtroom and no such request was made in this case.

10. After the State concluded its evidence, ADA Terwey approached the bench to express to Respondent her discomfort with the hearing and her concern that Mr. Logan, if he testified without his attorney present, may incriminate himself. In response to ADA Terwey's concerns, Respondent then advised Mr. Logan that he would not be permitted to testify because he may incriminate himself. Specifically, Respondent informed Mr. Logan that he would not be allowed to speak to avoid accidentally incriminating himself and stated to Mr. Logan as follows: "I'm not going to allow you to make any statements, because this is a probable cause hearing. The State has presented their case. The standard of proof is so low – or it's lower than what would be beyond a reasonable doubt. I will let them make their argument."

11. Following Respondent's instructions to the State to make its argument, ADA Terwey proffered no closing argument and stated "I would simply ask that probable cause be found." Without giving Mr. Logan any opportunity to be heard or make any arguments in his behalf, Respondent immediately ruled in the State's favor and announced his finding that there was sufficient evidence to establish probable cause for each of Mr. Logan's charges and bound Mr. Logan's matters over to superior court.

12. Shortly after Mr. Logan's probable cause hearing concluded, Mr. Smith returned to Respondent's courtroom to find that his client's case had been adjudicated in his absence. Mr. Smith, along with ADA Terwey and two other ADAs who were present during the probable cause hearing then went into a meeting with Respondent in his chambers.

13. While in Respondent's chambers, Mr. Smith explained that he was in the District Attorney's office discussing Mr. Logan's case. Just as he had made a point to put on the record at the start of the probable cause hearing that Mr. Smith was told to be in court at 2:00 pm and was not present by 2:50 p.m., Respondent again indicated to the parties that he proceeded with Mr. Logan's case without Mr. Smith to "make a point" because Mr. Smith was not present at 2:00 pm when he had been told to return to court and Mr. Smith did not otherwise communicate his location to the Court or courtroom personnel.

14. Respondent also acknowledged in the chambers meeting that he would not have proceeded with Mr. Logan's case had he known that the Superior Court ADA prosecuting Mr. Logan's case communicated that no plea bargain would be offered if Mr. Logan insisted on a probable cause hearing that day.

15. Respondent also told Mr. Smith that because his findings had already been entered by the clerk, Mr. Smith could appeal the finding of probable cause.

16. At the conclusion of the meeting in Respondent's chambers, Mr. Smith requested to be heard on Mr. Logan's bond. Respondent informed the parties that he would entertain such a motion. After the parties reentered the courtroom, Mr. Smith advocated for a lower bond, which was opposed by the State. Respondent then lowered Mr. Logan's bond from $100,000 secured to $25,000 secured.

(citations to pages of the Stipulation and Record omitted). Based on these findings of fact, the Commission concluded as a matter of law that:

1. The Statement of Charges alleges Respondent violated Canon 1, Canon 2A, Canon 3A(3), and Canon 3A(4) of the Code of Judicial Conduct. The Commission concludes that the findings of fact support the conclusion that Respondent violated Canon 2A and Canon 3A(4).

2. Canon 2A of the Code of Judicial Conduct provides that "[a] judge should conduct himself/herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Based on the findings of fact, the Commission concludes that on July 18, 2018, Respondent failed to conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A of the North Carolina Code of Judicial Conduct.

3. Specifically with respect to Canon 2A, the Commission's findings of fact concerning Respondent's conduct show that Respondent knowingly proceeded with defendant's probable cause hearing without the defendant's counsel present to "make a point" about the lawyer's failure to appear in court at the time Respondent had directed. Respondent noted this point on the record at the outset of the hearing and reiterated it in the chambers conference thereafter. At the hearing itself, Respondent made no effort to ascertain if Mr. Logan wished to continue the hearing or waive his right to counsel and proceed. Respondent's conduct not only forced Mr. Logan to proceed without his court-appointed counsel, but also required Mr. Logan to cross-examine witnesses from behind bars while handcuffed without access to pen and paper. Respondent's conduct also threatened Mr. Logan's 5th Amendment right against self-incrimination, a point that ADA Terwey had to raise to Respondent. Finally, Respondent's conduct sent a clear message that a criminal defendant will be held accountable for the tardiness of his court-appointed lawyer. This is a point that Respondent himself stated was not directed just at Mr. Smith, but at

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