Charles H. Toliver IV
Charles H. Toliver IV ()

Former Superior Court Judge Charles H. Toliver IV finished two terms on the bench this month and will join Morris James as a partner in June. In an interview with Delaware Law Weekly last week, he reflected upon his 24-year judicial career.

Q: What factors influenced your decision to retire now?

A: Length of time I’ve spent on the bench. I’ve been on the bench for 24 years and I had a desire for a change. There was no epiphany or revelation. I planned to do two terms on the bench and I’m old enough to collect Social Security and young enough to do something else.

Q: What are your post-retirement plans?

A: On June 2, I will be joining Morris James. I want to focus on alternative dispute resolution, mediation and arbitration. If something else comes up that I can be of some assistance to the firm or our clientele, I would be willing to do whatever I can do to assist our clientele.

Q: What was the biggest challenge you faced on the bench?

A: The biggest challenge for any judge is trying to understand that there are people whose lifestyles in criminal or civil cases are, in large part, probably different from a large portion of the judiciary. That’s good and bad. In other words, you have to learn to be empathetic, but not necessarily agree or be sympathetic. A judge must be able to understand and deal with different situations from levels of society from the lower end to the extreme high end. That’s the most difficult challenge: to consider issues outside of one’s own experience.

Q: Has your background helped you with understanding the experiences of individuals in your courtroom?

A: Yes and no. I had a guy once say to me in a criminal case involving drug-dealing in an impoverished neighborhood, “Judge, I know you understand about this.” I had to say, “What makes you think that?” I was raised in a two-parent household and my parents were together until my father died two years ago at the age of 91. I had never seen cocaine in any form until I came on the bench and I never saw much of marijuana. If he thought I understood the problems, I did for different reasons. My dad was college-educated and my mother had one year of nursing school. My other brother, who is six years younger than I am, went to the same college and law school I went to and worked for the Department of Education.

I grew up in a place called Dunleith. My parents were the first wave of homeowners in the area and it was, I guess, a working, middle-class neighborhood. There were professionals who lived there. We moved out in 1965 and as we were leaving Dunleith, drugs hit that environment. While I was personally not exposed to drugs, I had friends who succumbed to the bad news of drugs. People who were smarter and more athletic just fell out of sight. That had an impact on me. Those experiences helped me want to understand.

I’ve always known people from different social and economic levels as far as they are comprised of in the city of Wilmington. That has helped me to understand. I do not suggest in any way that someone who has not been associated with any particular group cannot.

[Dunleith was a Wilmington suburb built in the 1950s primarily for African-American homeowners.]

Q: Is there a decision that you are particularly proud of?

A: I believe that judges are human and can err, even when they are legally correct. I was able, through changes in the law, to redo something in two cases where I thought I was too harsh. One individual was sentenced by my predecessor, Judge [Joshua] Martin. In reviewing the kid’s file, I did not view him positively when he came up for a technical review of the sentence. But after contact with him it became apparent he received a certain sentence because it was the law at the time. When he completed the mandatory sentence based on his achievements, I reduced the sentence. I thought it was entirely appropriate because my initial view of him was incorrect. He had grown up and matured, and was working in the prison and outside in a day labor situation. I’m proud that I took a second look at him and was able to revise his sentence. I went to his wedding a few years later.

As an aside, I ran into him a few years later at the courthouse. The look on my face must have said, “If you are in trouble, I’ll kill you myself.” He stopped me and said, “Judge, I know what you are thinking, but I just came here to pay a parking ticket.” I had to laugh because he could tell what I was thinking by the look on my face.

Another gentleman came down from New York to sell drugs and the state recommended he get three years because he cooperated in a murder case. I gave him substantially more because someone died as a result of his activity. He never wrote and never complained, I don’t think he even appealed. I visited a prison one time and I asked to see the guy. I told him that I was thinking about his sentence and we talked. I asked him to write and tell me what he was doing. I told him that I wasn’t promising anything, but I may want to take a different view of his sentence. I verified what he did and talked to the prosecutor, who agreed the time he already served was appropriate. After he got out, I went to a formal event and he was there with his wife and we took a picture together. He is one of the few I’ve had to continuously pay off his statutory assessments.

I’m not proud of making a mistake and I’m legally correct in what I did, but I don’t think I was as fair as I could have been under all the circumstances. The sentence was legal, but I just had a reaction to the invasion of drugs and the harm it was doing. This guy was a part of that. He came down from New York City to pollute our community, but there is more to sentencing and being a judge in a criminal case than being punitive. I felt good that I was able to reexamine what I did and based on the distance I had traveled in terms of judicial maturation I was able to do the right thing.

I also went to his wedding. I get invited to a lot of weddings.

Q: You resentenced Lawrence Johnson, who received two life terms plus 105 years for his minor role in robbery-murder, after the U.S. Supreme Court revised child sentencing laws. How gratifying was it for you to do that?

A: That was a tough case because his father convinced him not to take the state’s plea. The plea offered was entirely reasonable for a kid who had no record, never pulled the trigger and was only a lookout. There were two shooters, who will die in jail as far as I’m concerned, but Johnson was only a lookout. It was a harsh result and the kid spent 23 years in jail for listening to a man who had never been involved in Johnson’s life. I even had another judge talk to the dad, because I couldn’t talk to him.

That case haunted me, but then the law changed, as you know. We just had Johnson’s status conference. He’s employed, has a room, is talking about going to school and has higher aspirations.

When I resentenced him, he looked up, put his head in his hands and just started crying. It was deeply moving because he made his peace that he was going to die in jail.

There can be a difference between being legally right and being just. In that case I was 100 percent legally correct, but not just because it was beyond my control. I just couldn’t convince him of the benefits of taking a plea where he would be out in four years.

Q: What was the most gratifying case you’ve been involved with?

A: I had a murder case once. I believe it was a kid who was riding on his bike and a group of guys were just firing randomly down the street. This kid and his buddy were not engaged in any criminal activity when a bullet hit the back of his head and killed him. After the case was over, there was a guy at the Rodney Square courthouse and he stopped me and asked if I was a judge and if my name was Toliver. He was tall and looked down at me. He said, “I’m the victim’s father and I want to thank you for caring.” That almost brought tears to my eyes. It made me feel good that one family viewed the institution as having concern. I never saw him after that.

Q: The James E. Cooke Jr. murder case was notable for the defendant’s frequent courtroom outbursts. How difficult was it to oversee that case?

A: The Cooke case was a retrial. Judge [Jerome] Herlihy had the difficult job of deciding complicated legal issues and dealing with an individual who we will politely say was difficult to deal with. Was it the easiest case I ever tried? Far from it. But if you asked me what I was good at, I could control the courtroom. If nothing else, that I could do. Some parts of his behavior were almost humorous, like when he would call me names. One day I told him that my wife is a lawyer from Philadelphia and she says worse things than that when she says good morning. If that is the best you got, can we please move on? Some of his threats were kind of funny. Once he said, “If I ever see you outside …” And I thought, “OK.” Another time, he called me an Uncle Tom and a slave master. I said to him, “Mr. Cooke, I’m not so sure you can be both, but I’ll consider it.”

I don’t know what he wanted me to do. I was given the case and he was arrested. What can I do? I went through a number of steps to make sure he got a fair trial. Whether he was guilty or not guilty was not my issue. My issue was to give him a fair trial and I think we did. I’ve been called worse by defendants, but his case had a lot of notoriety. I knew it wasn’t personal and I’m a professional trial judge. It doesn’t matter what you call me or if you like me or don’t like me, I must see that you get a fair trial by law and a matter of personal conscience.

Q: What is your advice to your successor?

A:Be legally correct, but try to achieve fundamental fairness to the extent you can. The system has evolved and we’ve become more administrators of justice rather than judges. That’s a necessary evolution. I would urge anyone seeking the judiciary to remember that it is not enough to be legally correct and fundamental fairness is something I would encourage judges to try to achieve. It’s not easy and it’s a consistent evolutionary process. If a judge is in the same place when they started this job, there is a problem.

Q: What is the biggest problem facing the Superior Court as an institution?

A: The number of cases being filed. Like I said, we are becoming more case administrators. That’s a necessary evil. You can appoint judges from now to doomsday and there will be cases that still need to be addressed. If I had the answer to the problem, I could retire in style. I think the judiciary is a trial-and-error practice. I think the number of specialized courts within the court have helped to address the needs of the public. 

Jeff Mordock can be contacted at 215-557-2485 or jmordock@alm.com. Follow him on Twitter @JeffMordockTLI.