Déjà vu

Beginning with the Yogi Berra quote, “’Déjà vu all over again,’” the Iowa Supreme Court recently explained that it expected “lawyers and judges to learn from their mistakes.  When a judicial officer repeats violations of the same ethical rules, sanctions can escalate.”  Thus, it publicly reprimanded a part-time judge for a “second warrant related transgression,” instead of the private admonition the judge had received seven years ago.  In the earlier case, the judge had signed a search warrant for the home of a woman he had sued on behalf of a client he represented in a custody dispute; the subsequent conviction had had to be overturned because his conflict invalidated the warrant.  In the second case, the judge had signed a search warrant for the home of a client (the suspect was her son) whom he represented in a custody dispute.  Rejecting the judge’s argument, the Court concluded that he should have learned from the first case “to recuse himself from any search warrant application targeting someone who is a party in a case in which he is counsel of record.”

The Washington State Commission on Judicial Conduct recently publicly reprimanded a judge for telling a defendant his fedora would be removed if he did not provide support for his statement that wearing the fedora was part of his Jewish faith, an escalation from its 2006 public admonishment of the same judge for requiring a woman, who was attending court in support of a relative, to remove the head scarf she wore for religious reasons or leave his courtroom.

In three cases in 2014, that a judge had received a previous sanction – proximate in time and/or related in subject to the subsequent misconduct — was a significant aggravating factor in the judge’s removal (although not the only one).

In In re McCree, 845 N.W.2d 458 (Michigan 2014), the Michigan Supreme Court emphasized in removing a judge that his willingness to engage in a sexual relationship with a complaining witness in a case pending before him while the Judicial Tenure Commission was investigating other allegations “demonstrates the extent of his disregard for the rules of judicial conduct.”

In April 2012, the judge had told a reporter, “There is no shame in my game” about a picture of himself shirtless he had sent to his bailiff via cell phone.  The Commission began investigating and eventually the Court censured the judge (with his consent) for bringing “shame and obloquy” to the judiciary by his flippant manner in the interview.  In re McCree, 821 N.W.2d 674 (Michigan 2012).

In May 2012, the judge began a sexual relationship with the complaining witness in a case in which the defendant was charged with failure to pay her child support.  The judge did not transfer the case to another judge until September.

The New York Court of Appeals removed a judge for presiding over matters involving (1) a lawyer who was her close friend and personal attorney (Lawyer A); (2) a lawyer who was her former attorney (Lawyer B); and (3) a lawyer who was or had been her campaign manager.  In the Matter of Doyle, 17 N.E.3d 1127 (New York 2014).  The Court emphasized the 2007 censure the judge had received from the State Commission on Judicial Conduct for her misleading and evasive testimony in its investigation of her role in a fund established to help pay for legal expenses of Lawyer A – an investigation in which she was represented by Lawyer B.  The Court concluded:

Without question, a heightened awareness of and sensitivity to any and all ethical obligations would be expected of any judge after receiving a public censure.  Petitioner’s failure to exercise that vigilance within just a year of her prior discipline is persuasive evidence that she lacks the judgment necessary to her position.

The Mississippi Supreme Court removed a former judge and fined her $1,000 for wrongfully incarcerating eight parents and three minors without affording them basic due process rights.  Commission on Judicial Performance v. Darby, 143 So. 3d 564 (Mississippi 2014).  The Court noted that in 2011 it had publicly reprimanded the judge and fined her $500 for depriving a parent of her constitutional right of due process.

 

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