August 2010

Judge Tupper - In Search Of Innocence And Guilt

Author: Paul deVere | Photographer: John Brackett

He was at the ripe old age of 37 (or was it 38?) when the five members of the Beaufort City Council asked him if he wanted to be a municipal court judge. That was 23 years ago. Part of his job (he shares this duty with Judge Mary Sharp), based on a Supreme Court ruling, is to set bail, twice a day, 365 days a year (yes, including Thanksgiving and Christmas) for all folks in Beaufort County’s four municipalities (Beaufort, Port Royal, Bluffton, Hilton Head) who are in the unfortunate circumstance (suspected of breaking a law) of having the need of someone (a judge) to set bail.

That’s part of Judge Ralph Edwin (“Ned”) Tupper’s job.

Another part is conducting bench trials and jury trials. “Bench trials are where a judge sits as both the judge and the jury. The city of Beaufort does it Monday and Thursday afternoon at 3 o’clock,” Tupper explained. There can be as many as 200 [traffic related violations] in one day.

If you’ve ever gotten a speeding ticket (in the city of Beaufort), there is a 50/50 chance you’ve stood before Judge Tupper. That’s pretty simple stuff. You pay your fine or go to jail. Or you ask for a jury trial.

“Most people plead guilty or what we call plea bargain. So it doesn’t take days and days or hours and hours. Typically [dealing with traffic tickets], it’s a couple hours on Monday and Thursday,” Tupper said. “We also hold jury trials. We schedule one term of jury trials, meaning a week, once every six weeks. Believe it or not, somebody’s entitled to a jury trial for a speeding ticket if they want it.”

He gave an example. “I am always impressed with jury trials—how serious a jury takes their responsibility for something that you and I might call minor, as long as you and I are not the ones on trial. I remember a number of years ago where they spent hours on whether someone was guilty of parking in a handicap space. They did a good job. There were issues.”

Ned Tupper grew up in New Jersey and New York. But his affair with South Carolina began when he attended Newberry College, located in the small town of the same name, northwest of Columbia. It deepened when he went to the University of South Carolina law school where he returned to become dean of admissions for two years. He left South Carolina for a short time to clerk for the U.S. Tax Court in Washington, D.C.; but in 1978, the lure of the Lowcountry got to him, and he moved to Beaufort to open a private practice.

Why Beaufort? “Oh gosh. Everything. Frankly, it reminded me of eastern Long Island where I graduated from high school,” Tupper said.

But it was his job between getting his undergraduate degree from Newberry and law school in Columbia that provoked an interest in the judiciary. “It was probably my experience as a probation officer just outside New York City. That was a very eye-opening experience for me, because I came from a white, middle-class family. I hadn’t seen a lot of stuff that really happens. That year or so, I dealt with people who were charged with everything from petty crimes to felonies who were on probation. I think that’s what interested me. That’s probably what steered me in that direction.” Tupper explained.

The Beaufort City Council reviews municipal court judges every two years. That means Tupper has passed muster 12 times.

“I was quite humbled to be asked that first time. I was only about 37 or 38 years old. Quite frankly, I still feel pretty humbled when they reappoint me,” Tupper said.

What may impress Tupper the most, and maybe humbles him the most, is the judicial system he’s been involved with all these years. While municipal jurisprudence may be “entry level” in terms of the courts of the land, the same rules apply throughout the country, whether it’s someone accused of driving without a license or a capital crime, like kidnapping or murder, when it comes to a jury trial.

“What a jury does is determine the facts from the testimony of the witnesses. At the conclusion, the judge tells them what the law is. Then they deliberate and determine whether or not the state or city has proved a reasonable doubt whether or not someone, in fact, violated the law. And the reasonable doubt standard is the highest standard in the law,” Tupper said.

“The simple reason for that is, it’s sort of like the same reason why we have to let people out, Tupper explained. “Anybody who studies the Constitution or history knows that when the Constitution was written… well go back and read the Declaration of Independence or the Bill of Rights, or read the Federalist Papers. The framers of the Constitution wanted to make sure that the government that they were establishing didn’t do to its citizens the same thing the king did to them. The Declaration of Independence goes through a number of grievances, explaining to the world the reason why the colonies were separating themselves and declaring independence from England. They didn’t feel they were being treated fairly in a number of ways, a lot of which had to do with the law and judges. The judges, back then, were appointed by the king and served at the pleasure of the king. If the king didn’t like what the judges did, the judges were fired.

“Today, I know a number of people who would like to revive that practice,” Tupper said, laughing.

“I’ve never, ever been pressured by City Council,” he continued. “The judicial department is totally separate from the legislative department, meaning city council, and the police. We are not a branch of the police. We’re our own independent branch and that’s what the law provides and that’s how the framers of the Constitution wanted it. All the things that apply to big government, in terms of safeguards, also apply to the smallest government.”

Setting bond may be one of Tupper’s toughest jobs and one that few people understand. “Judges get criticized because they let somebody out of jail. People are missing the point. Just because someone is charged with something doesn’t mean they’re guilty of it. The responsibility of a judge is to determine only two things at a bond hearing: one, flight risk. In other words, is there a good chance they may not show up in court? And two, are they a danger to the community?

“If they are either one or both of those, it is incumbent upon a judge to set a cash bond. But, if not, a cognizance bond is required; they do not have to post money. The people who complain about that should be complaining to Thomas Jefferson and John Adams, because that’s Constitutional law. But you find people don’t understand the system, if you read what the bloggers write. I’ve always found over the years that people complain about things until they’re arrested. Then they want every single right. They forget the world is round,” Tupper said, smiling.

Beaufort being [beautiful, wonderful, eccentric] Beaufort, Judge Tupper remembers his “15 minutes of fame.” It was 1992. Beaufort was in the throes of being “discovered” as a very cool tourist destination. But on Saturdays, street preachers would congregate on Bay Street, extolling the virtues of a very specific type of Christianity (their own) and, on occasion, pick out a female tourist in short-shorts, as focus of their wrath. This was often done with bull horns from the back of pickup trucks. Not too good for business on Bay Street. But it went Federal.

As the New York Times put it: “At the center of the dispute is a Beaufort ordinance that prohibits ‘willful’ disturbances involving ‘loud and unseemly noise’ on the city’s streets. A group of preachers from around South Carolina has asked the Federal court for an injunction against enforcement of the ordinance and has instigated a series of protests leading to the arrests of more than 40 preachers.”

And who was the judge presiding over those cases? Judge Ned Tupper. In the Times articles, he was described this way: “The 44-year-old municipal judge is known for dispensing justice in cases of minor offenses with a puckish, lighthearted humor.”

Judge Tupper, at the front lines, has a slightly different take.

“I had a lot of friends from across the United States call me and say, ‘What are you doing putting ministers in jail?’ Again, I don’t make up law. I can only talk generally. Generally speaking, those folks who were included in that were really, really good people who were making a point. Some folks agreed with them and some folks didn’t. But I can tell you, since that point in time, a lot of those people have become my friends, and I’m a lawyer as well; some are even clients on a small type basis. It was a very interesting time.”

Ned Tupper is a judge in a small town, at the “entry level” of the judicial system. But he has his expectations of himself, the prosecution and the defendant. “The most important thing is this is the only time most people are going to appear before a court. To me, it’s of primary importance that they feel like they were treated fairly and given the opportunity to tell their side of the story. That’s really all I can do.”

But when pushed to the wall and asked how he can conclude reality from fiction, truth from untruth, he has a relatively simple answer. “When people ask, ‘What’s the best training to be a judge—to make those decisions as to who’s telling the truth and who’s not telling the truth?’, my answer is, ‘Raise a teenager.’”

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