Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for abruptly dismissing a jury when defense counsel had not arrived in the courtroom by 8 a.m. even though he knew the building was still locked; failing to inform the defendant and defense counsel there was a way to get into the locked courthouse, which facilitated an impression of bias in favor of the prosecution who knew from previous experience that they could knock on the door to be admitted; refusing to allow defense counsel to explain what had happened on the record; and abruptly disqualifying himself, causing the parties substantial delay and inconvenience. Chiles, Order (Arizona Commission on Judicial Conduct April 9, 2012).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline & Disability Commission publicly reprimanded a judge for taking action in 2 cases following ex parte communications from the defendants’ parents, 1 of whom was a court employee and 1 of whom was a former client. Letter of Reprimand (Karren) (Arkansas Judicial Discipline & Disability Commission April 27, 2012).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline & Disability Commission publicly censured a judge for delay in several cases. Letter of Censure (Keaton) (Arkansas Judicial Discipline & Disability Commission April 27, 2012).
  • The California Commission on Judicial Performance severely admonished a judge for making denigrating and undignified comments to litigants and related parties in 5 family law proceedings; inappropriately commenting on complaints made against him; viewing litigants’ web posts about matters pending before him; independently investigating facts; and failing to disclose on the record information that was reasonably relevant to the question of disqualification. In the Matter of Friedenthal, Decision and Order (California Commission on Judicial Performance April 3, 2012).
  • Approving the findings and recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for driving under the influence and crashing the vehicle she was driving. Inquiry Concerning Nelson, 95 So. 3d 122 (Florida 2012).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for holding a hearing on a motion for disqualification alleging a conflict between the attorney and the judge’s wife, communicating ex parte with his wife about the motion, calling his wife as a witness, questioning the attorney’s clients, and threatening to file a complaint with The Florida Bar. Inquiry Concerning Cohen, 99 So. 3d 926 (Florida 2012).
  • Accepting the findings and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for (1) being habitually tardy for hearings, first appearances, and trials and (2) making a statement introducing his religious beliefs into decision-making. Inquiry Concerning Singbush, 93 So. 3d 188 (Florida 2012).
  • Granting an application filed by the Commission on Judicial Qualifications, the Iowa Supreme Court publicly reprimanded a judge for operating a vehicle while intoxicated. In the Matter of Block, 816 N.W.2d 362 (Iowa 2012).
  • Affirming the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court removed a judge for (1) inappropriate financial transactions and practices, including misappropriating public funds; (2) failing to ensure that a business-attire policy was properly enforced and did not deny people access to the court; (3) knowingly rehiring an unqualified magistrate, misrepresenting that he was qualified, and requiring him to sign bench warrants, contrary to statute; (4) hiring her niece; and (5) making misrepresentations during the investigation and hearing, including lying under oath. In re James, 821 N.W.2d 144 (Michigan 2012).
  • Pursuant to the judge’s agreement, the Nevada Commission on Judicial Discipline publicly admonished a judge for his conduct when his former bailiff was charged with domestic violence. In the Matter of Melville, Finding of Fact, Conclusions of Law, and Consent Order (Nevada Commission on Judicial Discipline April 13, 2012).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for presiding over 8 matters involving his paramour’s relatives without disclosing the conflict; engaging in ex parte communications with his paramour and her relatives concerning 4 of the matters; and making dispositions in 5 of the matters that conveyed an appearance of favoritism. In the Matter of Young, 974 N.E.2d 658 (New York 2012).
  • Based on a stipulation of facts and consent, the Oregon Supreme Court publicly censured a judge for a 16-month delay in issuing a decision in a divorce case. Inquiry Concerning Avera, 283 P.3d 923 (Oregon 2012).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a judge for telling a defendant, “I’ll beat your ass if you call me a liar.” In the Matter of Martin, 734 S.E.2d 165 (South Carolina 2012).
  • Pursuant to the judge’s agreement, the Tennessee Court of the Judiciary publicly reprimanded a judge for releasing his son on his own recognizance after his arrest for driving under the influence. Smith, Letter of Reprimand (Tennessee Court of the Judiciary April 2, 2012).
  • Adopting the findings and recommendation of the Commission on Judicial Conduct, to which the judge agreed, the Wyoming Supreme Court publicly censured a judge for comments he made at a city council meeting about towing charges. In the Matter of Lopez, 274 P.3d 405 (Wyoming 2012).

Disingenuous

A special Alabama Supreme Court has affirmed the decision of the Court of the Judiciary suspending Chief Justice Roy Moore from office without pay for the remainder of his term for ordering all probate judges to follow the state’s same-sex marriage ban despite a federal court injunction requiring the issuance of marriage licenses to same-sex couples and for failing to disqualify from the state case on same-sex marriage after taking a position on the issue in the order to probate judges.  Moore v Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017).

In early 2015, a federal district court enjoined enforcement of Alabama laws banning same-sex marriage, and the Eleventh Circuit upheld the injunction, but the Alabama Supreme Court held the state ban was constitutional.  Several days after the U.S. Supreme Court’s June 2015 decision on same-sex marriage in Obergefell v. Hodges, the Alabama Supreme Court invited argument on the effect of Obergefell on its prior decisions.  In July, lifting a stay it had entered pending the U.S. Supreme Court decision, the federal district court stated its injunction was binding on all Alabama probate judges.  In September, 2 probate judges filed petitions with the Alabama Supreme Court seeking a writ of mandamus directing them not to issue marriage licenses to same-sex couples.

On January 6, 2016, believing, as the special Court found, that the “Court was taking too long to decide the issue” and “deciding he could wait no longer,” the Chief Justice filed an administrative order that stated:  “IT IS ORDERED AND DIRECTED THAT:  Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.”  In the administrative order, the Chief Justice did not mention the federal injunction or the Eleventh Circuit’s decision upholding the injunction.

In March 2016, the Alabama Supreme Court dismissed the probate judges’ petitions seeking a writ of mandamus.  The Chief Justice participated in the decision, writing a special concurrence into which he “copied and pasted substantial portions” of his administrative order.

Based on a complaint filed by the Judicial Inquiry Commission, the Court of the Judiciary found that the Chief Justice, in the administrative order, had demonstrated an unwillingness to follow clear law, had decided substantive legal issues while purporting to act in his administrative capacity, had substituted his judgment for the judgment of the entire Court on a substantive legal issue in a case then pending in that Court, and had interfered with the legal process and remedies in the U.S. District Court and the Alabama Supreme Court; the Court also found that the Chief  Justice should have disqualified himself from the decision on the probate judges’ petitions.  The Court of Judiciary decision is summarized in a prior blog post, “Not about same-sex marriage.”

The special Supreme Court held that the Court of the Judiciary’s findings were supported by clear and convincing evidence.  It is notable how often the special Supreme Court concluded, either directly or by agreeing with the findings of the Court of the Judiciary, that the Chief Justice’s administrative order or his defense of his conduct was disingenuous, not credible, or misleading.  For example:

  • The special Court repeatedly noted that the Chief Justice omitted from his arguments that his administrative order had “ordered and directed” probate judges not to issue marriage licenses while they were unquestionably bound by the federal court injunction. For example, despite the “ordered and directed” language, he argued the order was merely a “status update.”
  • The Court found that the administrative order “served no purpose, other than to create confusion among the probate judges.” The Court of the Judiciary had noted that only 20 of Alabama’s 68 probate judges are lawyers.
  • The Court found that the Chief Justice’s failure to mention the federal injunction in the order was intentional but that that omission did “not absolve him of inciting those bound by it to disobey.”
  • Although the Chief Justice stated in the order “I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell,” the special Court explained that “[s]tating that one is not at liberty to provide guidance while taking great pains to include several pages of legal analysis and argument is disingenuous.”
  • The Court of the Judiciary found that the Chief Justice’s brief description of Obergefell in the order was “at best incomplete and at worst intentionally misleading” and that his use of caselaw was “incomplete, misleading, and manipulative.”

The Alabama Supreme Court that issued the opinion was comprised of 7 special justices chosen by random from a pool of retired appellate, circuit, and district justices and judges after the other supreme court justices recused themselves from the Chief Justice’s appeal.  Documents in the case are available on the Court of the Judiciary web-site.

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance removed a judge who (1) in 8 cases, without complying with minimal due process requirements, found unrepresented defendants who requested a modification of probation had violated their probation and imposed time in custody; (2) in 6 cases, improperly increased or threatened to increase the defendant’s sentence for asking questions regarding the sentence or offering a defense; (3) in 5 cases, asked defendants convicted of speeding violations if it felt good to “peel out” and conditioned their sentences on their responses, having predetermined that there was only one truthful answer based on his personal experience; (4) in 7 cases, informed unrepresented defendants at arraignment that their only choices were to plead guilty or accept diversion without advising them of their constitutional right to plead not guilty and have a trial; (5) issued bench warrants for absent defendants because their attorneys were not present when the case was called and refused to recall the warrant when the attorney later appeared and explained his or her absence; and (6) made inappropriate comments in 14 instances that disparaged counsel or suggested, as a “joke,” that a person appearing before him was about to be remanded to custody. Inquiry Concerning Velasquez, Decision and Order (California Commission on Judicial Performance April 25, 2007).
  • The California Commission on Judicial Performance publicly admonished a judge who (1) abused his authority in issuing orders to show cause regarding sanctions and (2) treated an attorney in a sarcastic and belittling manner. In the Matter Concerning Sohigan, Decision and Order (California Commission on Judicial Performance April 26, 2007).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge, and imposed a $3,500 civil penalty, for privately handling 2 cases for an acquaintance. Public Reprimand of Thuet (Minnesota Board on Judicial Standards April 20, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge who failed to make payments he owed under a confession of judgment and settlement of a claim related to his former law practice and, in the litigation the creditor was forced to commence, filed a verified answer that contained defenses he acknowledges were invalid. In the Matter of Honorof, Determination (New York State Commission on Judicial Conduct April 18, 2007).
  • Approving the recommendation of the Commission on Judicial Fitness and Disability, the Oregon Supreme Court suspended a judge for 30 days without pay for repeatedly admonishing and belittling defense counsel in a criminal trial and terminating defense counsel’s opening statement and some of his cross examination. Inquiry Concerning Ochoa, 157 P.3d 183 (Oregon 2007).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s public reprimand of a judge for failing to treat a defendant’s brother with dignity, courtesy, and respect. In re Lewis, Order (Utah Supreme Court April 26, 2007).

Affirming discipline in Alabama same-sex marriage case

A special Alabama Supreme Court has affirmed the decision of the Court of the Judiciary suspending Chief Justice Roy Moore of the Alabama Supreme Court from office without pay for the remainder of his term for directing or appearing to direct all Alabama probate judges to follow Alabama’s marriage laws in complete disregard of a federal court injunction; demonstrating an unwillingness to follow clear law; deciding substantive legal issues while purporting to act in his administrative capacity; substituting his judgment for the judgment of the entire Alabama Supreme Court on a substantive legal issue in a case then pending in that Court; interfering with the legal process and remedies in the U.S. District Court and/or the Alabama Supreme Court; and making a public comment about a pending proceeding and then failing to disqualify from the case.  Moore v Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017).  The Court that issued the opinion was comprised of 7 special justices chosen after the other justice of the Court recused themselves from the appeal by random from a pool of all retired appellate justices and judges, retired circuit court judges, and retired district court judges, who are members of the Alabama State Bar, capable of service, and residents of the State of Alabama.  The Court of the Judiciary decision was summarized in a previous blog post.

Politicking

Several judicial ethics advisory committees have recently answered inquiries from judges about whether they can participate in marches, contact their elected representatives, or engage in similar activities.

The New York committee advised that a judge may not participate in the March for Science (scheduled for Earth Day, April 22, 2017) if the march is co-sponsored by or affiliated with a political organization, if the march is in support of or in opposition to a political party or candidate, or if marching will insert the judge unnecessarily into public controversy or involve him in impermissible political activity.  New York Advisory Opinion 2017-38.  The committee noted that the New York code of judicial conduct has a blanket prohibition on any direct or indirect political activity by judges with exceptions for voting and identifying as a member of a political party, for measures to improve the law, the legal system or the administration of justice, for the judge’s own campaign for office, and when the judges’ clear and direct personal interest is at stake.  The committee emphasized that the exceptions are narrow “to preserve the preeminent principle that the breadth of the prohibition against political activity must remain robust.”

The committee noted that “there are conflicting reports about the full agenda of the March” because  it had “only recently been proposed and organized.”  Thus, the committee cautioned, although the march “purports to be a non-partisan gathering advocating for a recognition of the importance of scientific endeavors and rational thought in society,” it could become “more of a platform for political protest against the perceived preference” of some individuals and groups for “’junk’ science, disconnected from critical thinking and fact-based solutions” and could “be seen as related primarily to highly controversial environmental issues such as global warming and resource depletion, matters that do not clearly and directly implicate the law, the legal system or the administration of justice . . . .”  Therefore, the committee directed the judge to carefully “monitor the agenda and positions taken by organizers”’ and not to join if marching means associating with “matters that are the subject of litigation or public controversy” or being involved with “political organizations,” that is, any “group whose principal purpose is to further the election or appointment of candidates to political office . . . .”  The committee also stated it “trusts that a judge will exercise discretion and leave the area on the day of the March if the judge finds that political signs unexpectedly dominate the occasion.”

In addition, the committee advised that a judge may not participate, even without speaking, in a local rally, march, or demonstration sponsored by a grassroots organization unless one of the exceptions applied.  Specifically, the committee disapproved of a judge participating in a rally “in opposition to the so-called Trump Muslim Ban,” stating the event clearly “involves great public controversy, which is also the subject of litigation.”

About a month after the November election, the Massachusetts committee advised a judge that she could not participate in the Women’s March on Washington scheduled for the day after the presidential inauguration.  Massachusetts Advisory Opinion 2016-10.  Although the organizers emphasized that the march was “intended to be inclusive and welcoming to everyone who supports women’s rights,” the committee stated that “the political overtones are unmistakable,” pointing to references to “the ‘rhetoric of the past election cycle’ that has “insulted, demonized, and threatened . . . immigrants of all statuses, Muslims and those of diverse religious faiths, people who identify as LGBTQIA, Native people, Black and Brown people, people with disabilities, [and] survivors of sexual assault.’”  The committee concluded:

We understand that you wish to participate in the Women’s March to stand up against misogyny, racism, and other biases and bigotries that threaten the rule of law.  The public and the media are, however, likely to focus on the timing of the event and the organizers’ announced desire to “send a message” to the new President on his first day in office.  We believe that a reasonable person would perceive the Women’s March as a political protest, and the Code therefore prohibits your participation.

Cf., In the Matter of Sanders, 955 P.2d 369 (Washington 1998) (a new supreme court justice’s brief appearance at a March for Life rally to express his belief in the preservation and protection of innocent human life and to thank his supporters for his election did not lead to a clear conclusion that he was not impartial on the issues that might be presented to him as a judge).


Contacts

The New York committee advised that a judge may not call a Senate committee to express an opinion on a pending federal executive branch appointment or sign a MoveOn.org petition concerning such an appointment, whether as a private citizen or otherwise.  New York Advisory Opinion 2017-38.  Similarly, the Colorado committee stated that a judge may not contact his federal congressional representatives to express approval of or dissatisfaction with federal legislation or cabinet appointments.  Colorado Advisory Opinion 2017-1.  The committee did identify an exception for matters concerning the law, the legal system, or the administration of justice or matters the judge acquired knowledge or expertise about in the course of judicial duties, pursuant to Rule 3.2.  However, the committee cautioned the judge to be mindful even in those “narrowest” of circumstances to avoid impropriety and maintain independence, integrity, and impartiality.

The committee explained:

An endorsement or a protest of a particular legislative policy would appear to implicate the judge’s personal opinion.  Consequently, if a judge contacts a federal representative to discuss matters outside of the narrow scope permitted by Rule 3.2, such contact would very likely amount to an impropriety or give the appearance of impropriety. . . .  That rule requires judges to act in a manner that promotes public confidence and to avoid the appearance of impropriety both professionally and with respect to personal conduct.

In addition, the committee concluded, contact by a judge about a cabinet appointment would constitute an improper endorsement.  The opinion recognized that “[c]abinet nominees and appointees do not hold a public office per se” but noted that “they are chosen based upon their executive experience, policy expertise, partisan credentials and loyalty to the President,” “[t]heir confirmation is often contentious and politically charged,” and “[o]nce in office, they are seen as advocates for political policy.”  Thus, the committee stated, expressing support or opposition creates the appearance of political partisanship and, even if “a private telephone call may not constitute a public statement, a judge should refrain from expressing views because it would be contrary to a judge’s independence and impartiality.”

The opinion also suggested that, “[e]ven if a judge withholds his or her judicial title and is identified in name only, the judge’s status may eventually be revealed.”  Finally, the committee added that the contact would be impermissible even if it were anonymous, stating that engaging in the behavior anonymously “does not cure the concerns of impartiality or questionable integrity.”

Similarly, the New York committee stated that a judge may not engage anonymously in otherwise prohibited political activity, such as publishing partisan political literature.  New York Advisory Opinion 2016-85.  It explained:

Concealing one’s name and judicial status does not ordinarily render prohibited conduct permissible . . . .  Even assuming the judge could operate in perfect secrecy, anonymously printing and mailing partisan political literature would violate the rule against “directly or indirectly” engaging in partisan political activity, which contains no exception for anonymous conduct . . . .

And if, as is quite likely in modern politics, the public learned that a judge was attempting to conceal his/her impermissible political activity, that would only exacerbate the resulting appearance of impropriety.


Outreach

In response to an inquiry, the Massachusetts committee advised that “judges may reach out to individuals, and associations of individuals, who may feel vulnerable due to their race, religion, national origin, citizenship status, or other attribute(s), and remind them that the Massachusetts courts are and will remain committed to upholding the right of every person to obtain equal justice before an independent and impartial judge.”  Massachusetts Advisory Opinion 2017-1.  The opinion also stated that, “in prepared or extemporaneous remarks,” judges may respond to comments by public officials or others that appear to reflect misconceptions about the role of an independent judiciary or manifest disrespect for the rule of law.  The committee explained:

It is proper for a judge to dispel misconceptions about the role of an independent judiciary and to emphasize the importance of respect for the rule of law, so long as the judge’s remarks preserve the dignity of judicial office, would not lead a reasonable person to question the judge’s ability to impartially administer the law, and avoid the implication the judge is influenced by, or appears to be influenced by, partisan or political interests.

The committee noted that the code “places parameters around judges’ remarks, even on permitted subjects such as defending the rule of law or speaking about the administration of justice” and cautioned that, “[i]n deciding whether it is appropriate to accept any particular speaking engagement, judges must consider the overall context in which the remarks would be made.”  The committee also emphasized that “[a]n underlying premise of the Code is that a judge’s fair and impartial decisions are the most important defense against threats to judicial independence and the rule of law.”

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline and Disability Commission publicly reprimanded a judge for delaying over 1 year in deciding a request for attorney’s fees and permanent alimony in a divorce case and failing to file quarterly reports on cases held under advisement for more than 90 days as required by administrative order. In the Matter of Davis, Final Decision and Order (Arkansas Judicial Discipline and Disability Commission April 23, 1997).
  • Based on stipulated facts and an agreement, the California Commission on Judicial Performance publicly censured a judge for (1) displaying a crucifix in the courtroom, (2) authorizing the use of his name and title in an advertisement celebrating the anniversary of Roe v. Wade, (3) announcing a policy for sentencing persons convicted of DUI that allowed for no exceptions, and (4) making public statements disparaging other judges and local attorneys in open court, in documents filed in court, in newspapers, and on television broadcasts. Inquiry Concerning Velasquez, Decision and Order Imposing Public Censure (California Commission on Judicial Performance April 16, 1997).
  • Agreeing with the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge who had ordered her clerk to back-date convictions in approximately 50 DUI cases to disguise the length of time that she had taken to dispose of the cases. Inquiry Concerning Johnson, 692 So. 2d 168 (Florida 1997).
  • The Illinois Courts Commission censured the chief justice of the Illinois Supreme Court for, on 4 occasions, disobeying law enforcement officials who had stopped him for violations of traffic laws and volunteering the information that he was a member of the judiciary after being stopped by the officers. In re Heiple, Order (Illinois Courts Commission April 30, 1997).
  • Adopting the decision and recommendation of the Judicial Tenure Commission, the Michigan Supreme Court publicly censured a judge for conducting activities relating to a community affairs radio and television program she produced and hosted during court hours in her chambers; appropriating the services of court personnel to perform tasks related to the program during court hours; using the court postage system to circulate correspondence and advertisements related to the program; using the court’s phone service, voicemail system, fax machine, photocopy machine, and other court materials for the program; soliciting and receiving funds from a car dealer to sponsor the program; and failing to report any of the funds received. In the Matter of Cooley, 563 N.W.2d 645 (Michigan 1997).
  • Pursuant to a joint motion for approval of the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court publicly reprimanded a judge for talking ex parte with a defendant, the defendant’s mother, the arresting officer, and the prosecutor and telling the mother’s boyfriend in front of the bail bondsman that he should not be trying to bail the defendant out of jail by posing as someone else, resulting in the defendant being unable to post bail. Commission on Judicial Performance v. Vess, 692 So. 2d 80 (Mississippi 1997).
  • The Missouri Supreme Court suspended a judge from office without pay for 30 days for reneging on his agreement to drop contempt charges against the police chief if he released an individual charged with domestic abuse as the judge had ordered, filing an incomplete and misleading contempt affidavit, and talking with a television reporter about the merits of the domestic violence case. In re Conard, 944 S.W.2d 191 (Missouri 1997).
  • Approving an agreed statement of facts, the New York State Commission on Judicial Conduct censured a judge who had made undignified, discourteous, and disparaging statements, including hyperbole about the British legal system, while sentencing a citizen of Great Britain who had pled guilty to manslaughter in connection with the death of her infant child. In re Hanophy, Determination (New York State Commission on Judicial Conduct April 2, 1997)
  • The New York State Commission on Judicial Conduct removed a part-time judge who had taken $242,745 in unauthorized fees from an estate for which he was an attorney and executor. In the Matter of Embser, Determination (New York State Commission on Judicial Conduct April 2, 1997).
  • Pursuant to the recommendation of the Board of Commissioners on Grievances and Discipline, based on a stipulation, the Ohio Supreme Court publicly reprimanded a former judge for making derogatory remarks regarding a litigant’s national origin in a case; ordering marriage as a condition of probation in 3 cases; and displaying a lack of judicial temperament in 4 domestic violence cases. Office of Disciplinary Counsel v. Mestemaker, 676 N.E.2d 870 (Ohio 1997).
  • Pursuant to his consent, the South Carolina Supreme Court publicly reprimanded a former judge who had, while a judge, been arrested on charges of assault and battery of a high and aggravated nature. In the Matter of Brown, 484 S.E.2d 875 (South Carolina 1997).

Problematic comments and political concerns

Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for making public comments about a pending murder case in 3 media interviews and being discourteous to the prosecutor in a post-trial proceeding.  In the Matter of Piampiano, Determination (New York State Commission on Judicial Conduct March 13, 2017)

In September 2015, the judge, then a county court judge, was nominated to be a candidate for the supreme court (the highest trial level court in the county).  Also in September, he began presiding over a jury trial in People v. Charles Tan in which the defendant was charged with second degree murder for allegedly shooting his father at their family home.

According to news accounts, the case was “polarizing” for the community.  There were allegations that Tan’s father was abusive to his wife and family.  Tan was a student at Cornell University, and his supporters raised over $50,000 to help his defense.

On October 8, after approximately 8 days of jury deliberations, the judge granted a mistrial, which the county assistant district attorney and Tan’s counsel had consented to.  The defense moved for a trial order of dismissal, which would preclude a retrial; the assistant district attorney opposed the motion.  The judge ordered the parties to appear again on November 5.

Also on October 8, after declaring the mistrial, the judge gave 1-on-1 interviews about the case in his chambers with reporters from 2 television stations and a newspaper.  Portions of the interviews were broadcast or published and made available on the media outlets’ web-sites.  For example, one of the TV stations broadcast the following report:

THE JUDGE:  They probably got close to a verdict but, in the end, it just wasn’t to be.

REPORTER:  Judge Piampiano says both sides agreed to throw in the towel, and for that matter, dismiss the jury.

THE JUDGE:  But after eight days, how far do you go?  Do you go another two days, a week, a month?

REPORTER:  Prosecutors already say they plan to retry Charlie Tan, but Piampiano is in “wait-and-see” mode.

THE JUDGE:  I’ve asked the prosecutor to think through it, advise me on the 5th, and if there’s to be a retrial, it would likely be in February or March of next year, not before.

* * * *

REPORTER:  The judge says the jury worked longer than any jury he’s seen, but added the evidence presented left them with more questions than answers.

THE JUDGE:  Jurors don’t get the evidence they want, they get the evidence they get.  And then they have to sort through that and figure it out.  (Unintelligible) …

REPORTER:  This jury didn’t quite figure it out, but a new jury might get that chance.  And the judge is optimistic that finding one without too much bias will be easy.

THE JUDGE:  Sometimes journalists, and judges, and lawyers think that the whole world revolves around this courthouse.  I’ve met many people in the jury selection process, who are not “news junkies,” if you will, and who have only peripherally heard about this matter, or other matters.

REPORTER:  As for Charlie Tan, Piampiano did not rule out the possible impact of his supporters or his side of the story.

THE JUDGE:  I’m not sure, Cody, that I can recall, in recent times, somebody being that sympathetic a figure.

In another example, in response to a question from the newspaper reporter about his denial of the prosecutor’s request for an accomplice liability charge related to the defendant’s mother, the judge stated:

I’m not at liberty to discuss the prosecutor’s remarks or this case in particular, but I can share with you that with respect to accomplice liability, for the court to charge that, in any case where it’s requested, there has to be a reasonable view of the evidence that two or more people are acting in concert to accomplish the same goal, that they’re acting with the same state of mind, and that there’s some conduct, behavior or otherwise, from the evidence, that suggests that they’re acting together and in concert.  So, in any trial where a judge is asked to charge that, what the judge is going to be doing, as I did in this trial, is reflect on the evidence that was presented.  Typically, I’ll review my notes, take one last look at the law, and then listen to the arguments of both sides, and then reflect on whether or not there can be such a charge based on the evidence in that particular case.

On November 3, the judge won the election.

During the post-trial hearing on November 5, the assistant district attorney confirmed that his office intended to retry Tan for murder.  After speaking without interruption for several minutes, the judge commented on the jury’s inability to reach a verdict when “evaluating whether the evidence demonstrated beyond a reasonable doubt that the crime had been proven,” and the assistant district attorney asked if he could speak briefly.  The judge replied, “No, you may not.  If you speak I’m going to put you in handcuffs and put you in jail.”

The judge granted the defendant’s motion to dismiss.  The prosecution appealed, but the appellate division dismissed the appeal, holding there is no statutory authority to appeal a trial order of dismissal, although it stated that, if it were able to review the merits, it would agree that the judge erred in dismissing the indictment.

The Commission concluded that the judge’s comments during the series of press interviews violated the New York rule that “[a] judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories.”  (New York has not adopted the current version of the rule in the ABA Model Code of Judicial Conduct:  “A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”)

The Commission emphasized that, “[t]he fact that respondent made these statements in media interviews at a time when he was a candidate for election to the Supreme Court raises a question as to whether his public comments were motivated by political concerns.”  The Commission made several additional findings.

  • The prohibition applies to “‘any public comment, no matter how minor, to a newspaper reporter or to anyone else, about a case pending before him.”
  • There is “no exception … for explanations of a judge’s ‘decision-making’ process.’”
  • Going “well beyond general explanations of the law,” the judge had discussed legal issues in the case (such as the accomplice charge) and described “his interactions with the jury and his sense of the jury’s deliberations.”
  • The judge should have recognized that any general statements he made about procedures and the legal system “in that context would be understood as pertaining to Tan and therefore were problematic.”
  • The Commission found “[e]specially troubling” the judge’s description of the defendant as a “sympathetic” figure,” stating that could convey an appearance that the judge “viewed the defendant sympathetically, raising doubts about his impartiality and thus undermining public confidence in the impartial administration of justice.”

The Commission also found it was improper for the judge to threaten to have the prosecutor placed in handcuffs and put in jail.  It explained:

By asking to speak, the prosecutor was simply doing his job, and even if respondent believed that the attorney was interrupting or speaking out of turn, his response was a substantial overreaction to the attorney’s conduct. . . .  The fact that respondent did not act on his threat does not excuse his conduct since baseless threats against an attorney are inconsistent with a judge’s obligation to be “patient, dignified and courteous” to lawyers and others with whom the judge deals in an official capacity . . . .