Critics are questioning Buncombe County District Court Judge Shirley Brown‘s handling of a number of cases — some recent and others dating back years. One centers on why Brown convicted a man of a crime back in 1993 without his lawyer present. Another involves Brown’s written order in a juvenile case — which mysteriously disappeared, thwarting family members’ ability to appeal the 1997 ruling. And three cases beg this question: Is 11 months or more too long to wait for a written decision on awarding child custody or dividing up marital property?
Some of those cases have been the subject of complaints filed with the Judicial Standards Commission (one of them by attorney Cecilia Johnson, who is Wilson’s campaign treasurer). Under state law, however, such matters are confidential unless formal proceedings are instituted against a judge; as of Oct. 17, no such proceedings had been initiated against Brown, said Deborah Carrington, the commission’s executive secretary.
That means there’s no official way to verify those complaints or even determine how many complaints have been filed. But a few people involved in the cases in question have been willing to talk about them.
Brown, meanwhile, says she’s fairly sure that someone else filed a complaint with the commission against her opponent, Susan Wilson, over a campaign incident. Wilson says she doesn’t know of any such complaint, adding that the commission hasn’t contacted her.
Wilson concedes that during the course of her campaign, she apologized to a Buncombe County Department of Social Services administrative assistant who’d been upset about receiving a group invitation Wilson e-mailed from home, inviting employees to her April campaign kickoff.
Social Services Director Mandy Stone asked Wilson not to send out any more such e-mails, the candidate reports — adding that she hasn’t.
The missing order
One complaint involves a missing piece of paperwork that has kept a local family in turmoil for years. And though Black Mountain resident Luci Tomlin was willing to talk, she didn’t want to publicly name other family members.
Five years ago, Tomlin says her 12-year-old granddaughter accused her stepfather of inappropriately touching her breast. As a result, the girl and her 10-year-old sister were removed from their mother and stepfather’s home. At a November 1997 court hearing, Tomlin says Brown announced her finding (based on an investigation by the Department of Social Services): that Tomlin’s son-in-law had molested the 12-year-old. (Neither Tomlin nor her daughter, however, believe the molestation occurred.)
That finding was supposed to be followed up with a written adjudication order. (A new state law, in fact, dictates that as of Jan. 1, 2002, an order must be entered within 30 days after the completed hearing.)
Lawyers representing various parties in the case have unsuccessfully sought copies of the written adjudication over the years, Tomlin says; local lawyer Jack Stewart, who once represented the stepfather, agreed.
“I don’t think it was ever written,” Tomlin declares.
Brown, however, says she prepared an order and put it in the box of one of the clerks to be filed.
“I did the order,” says Brown. “I don’t know what happened to it.”
Strangely enough, she notes, nobody noticed that the order was missing until much later. And the judge says she couldn’t write a replacement order because she’d destroyed her notes once the deadline for appealing the case had passed; the courtroom audiotape has been taped over as well.
A notice of appeal must be filed within 10 days of when the written order is entered, says Kim Bonuomo, the chair of the N.C. Bar Association’s family-law section. Wilson, however, says she doesn’t think the appeal period can even start until an order is officially entered — i.e. signed by the judge, time-stamped by the clerk, and mailed to the parties involved.
Tomlin and her daughter say they tried to appeal, but without the written adjudication, the case couldn’t go anywhere.
“It did thwart their ability to appeal an adverse decision,” confirms Asheville attorney Michael Casterline, who was hired by Tomlin’s daughter at one point.
At this point, the older granddaughter is almost an adult; Tomlin says the family’s main concern is bringing her younger granddaughter, now 15, home to live with her mother, stepfather and Tomlin (who now lives with the couple). To that end, she wrote a letter of complaint to the Judicial Standards Commission in May of this year and agreed to speak to Xpress.
“That’s not right,” Tomlin declares. “[Judge Brown] has changed our life — put us on hold for five years. … [The granddaughter] needs to spend what’s left of her teenage years with her mother and dad. Maybe this will help; I don’t know.”
In three other cases, attorney Johnson gripes that Brown took too much time after hearings to file written orders. Brown reports that Johnson filed a complaint over at least some of those cases with the Judicial Standards Commission.
Asheville architect Cynthia Turner and her ex-husband, local physician Rick Burris, still shake their heads over the 19 months they waited for Brown to rule in a custody dispute over their three daughters. (Turner was represented by Johnson in the case; Burris’ lawyer was Robert Riddle.)
The trial took place on May 15, 2000; but Brown didn’t issue her draft decision — awarding the couple joint custody — until December 2001, says Johnson. In the interim, however, many particulars had changed, and the couple wound up crafting their own custody agreement.
“Trying to use the court system to solve a problem was a colossal mistake,” says Turner. “It didn’t solve the problem at all; it just made the problem worse.”
Brown acknowledges that it took her a long time to make a decision, but she says she agonized over a complicated, emotionally charged case. And in the meantime, notes the judge, the two sides had a consent order in place to guide them.
“It was hard. And probably, that same year, I did hundreds of other custody cases and got the orders out quickly,” says Brown.
As a result of their experience, Turner and the Burrises say they’re backing Wilson in the election.
Brown does concede that one case just slipped through the cracks. Arden resident Michele Grush (represented by Johnson) and her ex-husband waited 11 months to get a written decision on custody issues involving their son. Although Brown announced her finding in court on specific visitation issues the previous year, the written order wasn’t filed until Oct. 25, 2001, according to Grush and Johnson.
Grush says the delay meant she and her ex had to rely on their memories of the judge’s decision — which made a tense situation that much more difficult.
Brown says the case must have gotten refiled after the last hearing, and she lost track of it until Johnson wrote her a memo.
“I regret that,” Brown says soberly. “I’m human, and I’m sorry. … I regretfully forgot about it and dealt with it when I realized it.”
Some judicial districts, notes Brown, have a case manager for every two family-court judges, to help keep track of cases. Buncombe County, she says, has an overcrowded docket handled by six judges and one judicial assistant.
In yet another instance (filed in 1992 and tried in ’93), Johnson maintains that it shouldn’t have taken Brown nearly two years to file an order in a marital-property-division case. (The attorney does concede, however, that the case file disappeared twice and had to be reconstructed — though she insists that rebuilding the files shouldn’t have occasioned the delay.)
“This is one where the court file disappeared,” says Brown, noting that it’s not a part of the pending Judicial Standards Commission complaint. “Give me a break — 1992. … Why didn’t she file a complaint back then?”
One local lawyer (who asked not to be named) described the incidents as happening on “a few rare occasions.” Although he notes that Brown’s delays did create problems for the people involved, he adds: “I certainly wouldn’t call it [her] defining trait, in my opinion.”
Bonuomo says that in her experience (mostly in Guilford County) judges deciding child-custody or marital-property-division issues try to rule immediately after a hearing ends. But if there’s been a long trial or a case has complicated issues, judges may want to review their notes. In those situations, she says, two weeks to a month would be a fairly average time to wait for a decision, with some exceptions.
Brown sounds downright irate when asked about another accusation she says was contained in Johnson’s complaint before the commission — that the judge had asked a clerk to change the date on a judgment. Brown calls the claim “a malicious lie” that hurt the clerk’s feelings.
But the judge declined to say much about another allegation, concerning a 1996 juvenile matter that’s also part of the pending complaint. “I did nothing wrong in that case, but because it’s a confidential proceeding, I won’t talk about that one.”
“A pretty incredible situation”
Asheville attorney Jack Stewart remembers an experience with Judge Brown back in December 1993 that he calls “a pretty incredible situation.” Brown convicted Stewart’s client of misdemeanor stalking when the lawyer couldn’t be there (he was involved in a jury trial across town in U.S. District Court). In such situations, federal court trumps state court.
“She tried him without me,” marvels Stewart. “That’s pretty egregious. That’s about as bad as it gets. … I couldn’t believe it.”
Brown says she went ahead and tried the man because Stewart hadn’t given notice in time to prevent the prosecuting witness from making a fourth trip from Wilmington.
“There comes a time when you have to balance the interest of the defendant and the interest of the victim,” the judge declares. “It was a stalking case. And for these people to make four trips to Asheville and not have been heard, I thought that was the greater wrong.”
The charge was dismissed in Superior Court after Stewart argued that his client’s constitutional rights to a lawyer, to due process, and to equal protection under the law had all been violated.
Although Stewart was reluctant to say more, Brown reports that the lawyer filed a complaint about what happened with the Judicial Standards Commission shortly thereafter — which she says was dismissed as meritless.