james brown*At an Aiken, South Carolina hearing in March, Circuit Court Judge George James was asked to revisit the question of whether former James Brown trustee, David Cannon, should pay restitution on the music legend’s missing millions.

The hearing also raised questions about who was responsible for not seeking restitution in the original Cannon hearing.

In October of 2011, Cannon entered an Alford plea and was sentenced to 20 months of house arrest for taking more than $7 million from Brown.

As part of his plea bargain, Cannon was not required to pay restitution, even though he is part-owner of one of Brown’s publishing companies and has bought a million-dollar mansion in Honduras.

Documents submitted to the court by assistant Attorney General (AG) Robert McNair show that Brown took in almost $80 million between 1999 and his death in 2006, and Cannon received almost $12 million of that amount. Cannon asserted that was what Brown intended to pay him.

In the transcript of the March hearing, Judge James recounts that he “pointedly” questioned McNair about restitution after Cannon’s plea in October. McNair responded that all victims had been notified of the plea hearing, and none were present.

“I don’t know whether you can detect my amazement…, but I asked Mr. McNair if the state took any position on restitution. He said no,” Judge James said in the transcript.

Although McNair represented to the Court that no one had filed victim statements, pleadings show that former trustee Adele Pope of Newberry—who discovered Cannon’s takings—had emailed a victim’s statement to the AG’s office. Her statement was not presented.

After the October hearing, some of Brown’s children expressed their dissatisfaction with the failure of the Court to award restitution, and the hearing in March asked the Court to reopen the question.

The hearing turned into a finger-pointing session with the AG’s office, current Brown trustee Russell Bauknight, and the attorney for some of Brown’s family, Louis Levenson.

Bauknight is the sole trustee of Brown’s assets under a 2009 settlement deal brokered by former AG Henry McMaster. Bauknight was appointed by McMaster and continues to serve “at the pleasure” of AG Alan Wilson.

According to the March transcript, senior assistant AG “Sonny” Jones told Judge James that AG Wilson had no responsibility to seek restitution for the millions Cannon took from needy children, the intended beneficiaries of Brown’s “I Feel Good” education charity.

Jones argued that Bauknight should have appeared, but Bauknight’s attorneys said he offered to attend the plea hearing—and was directed by the AG’s office not to come. Levenson supported Bauknight’s account of events, asserting that he, too, was told by the AG’s office not to “show his face.”

“I was told that my presence would screw up the deal. Those were his words—Mr. McNair’s words,” Bauknight said, according to the transcript.

McNair has since left the AG’s office and was not present at the March hearing. He now works for the Lexington Solicitor’s office.

One of Cannon’s attorneys, Gregory Harris, defended McNair. “What really just sets me on fire is that Rob McNair is not here to defend himself against claims that he told Bauknight not to come…or Mr. Levenson…I just can’t imagine Rob McNair saying that.”

Cannon’s lawyers argued against reopening the question of restitution. Columbia attorney Sherri Lyndon said the Cannon plea deal was vetted by more lawyers than she had ever seen involved in a plea deal. She called Jones “disingenuous” for asserting AG Wilson was not in control of 99 percent of James Brown’s assets, and she expressed her belief that Supreme Court Justice Jean Toal would be surprised by Jones’ assertion that it was not the AG’s responsibility to seek restitution for needy students.

In victim impact statements presented at the March hearing, daughter Deanna Brown Thomas wrote, “If Mr. Cannon had not stolen this money, thus causing years of investigation and litigation, our Dad’s wishes would have been accomplished years earlier, and these stolen funds would have already been made available for scholarships.”

Brown’s estate plan left his music empire to the “I Feel Good” Trust, to provide scholarships to needy and underprivileged students in South Carolina and Georgia. He left household effects to some of his children, and he gave some of his grandchildren education trusts of up to $285,000. Brown’s will and trust were contested by some of the claimed children and by companion Tommie Rae Hynie, who asserted she was Brown’s wife and sued for a spousal share.

Brown’s estate plan said anyone who contested the will received nothing. Instead of enforcing that clause in protection of the charity, former AG McMaster brokered a settlement deal that gave over half of Brown’s music empire—intended for charity—to those who contested the will.

Pope and former co-trustee Robert Buchanan of Aiken appealed the settlement deal. They were then sued for allegedly causing “tens of millions” in damages to the Brown estate during their service as trustees from late 2007 to early 2009. In this unprecedented tort action, brought by a public official on behalf of private plaintiffs, former AG McMaster engaged the Wingate firm of Columbia to represent the AG, Bauknight, Hynie and some of Brown’s children against Pope.

The AG’s office has denied FOIA requests from The Observer for a copy of the McMaster/Wingate contingency fee contract under which the lawsuit was brought. One of the plaintiffs named in the suit, Daryl Brown, has written a letter to AG Alan Wilson that says he never signed a contract to sue Pope.

Eighteen months ago, while Cannon was still under indictment, the Wingate law firm named Cannon as a witness in its lawsuit against Pope/Buchanan.

A story about the failure of the AG’s office to prosecute Cannon nearly two years after his indictment appeared in The Newberry Observer in September 2011.

Judge James has not yet ruled on whether to reopen Cannon’s restitution proceeding, allowing victims to seek Cannon’s assets in Honduras and his ownership in the Brown publishing company as partial restitution.

“We, the Brown children, would like the Court to order Mr. Cannon to be required to pay restitution for all of the money he was convicted of stealing,” Thomas said.