Several recent judicial discipline cases should remind judges that the line between being a judge and being a prosecutor is bright and should never be blurred.
Based on an agreement, the Arkansas Commission on Judicial Discipline & Disability Commission censured a judge for issuing arrest warrants for 4 persons without probable cause presented by any law enforcement officer or the prosecuting attorney, as well as a pattern of rude, impatient, and undignified temperament.
For example, during an appearance on charges of driving on a suspended driver’s license and no proof of liability insurance, Andre Ford requested a continuance and the appointment of a public defender. With no probable cause documentation presented by any law enforcement officer or the county prosecutor, the judge sua sponte issued a warrant for Ford’s arrest on charges of obstruction of governmental operations. The judge appeared angry and agitated and verbally berated Ford from the bench. At trial, the state moved to nolle prosequi the charges, but the judge refused and found Ford guilty of a charge the state offered no evidence to support. (The public defender’s office appealed, and, ultimately, the charge was dismissed at the request of the state.)
The Commission found that the judge was unable to separate the authority of his “judicial office from that of the local prosecuting attorney or local law enforcement.”
Your conduct of acting as a “super-prosecutor” toward [the 4 defendants] could reasonably be perceived as reflecting bias against those appearing before you. The concept of a “super-prosecutor” is not a role for the judiciary. Judges should seek to avoid entering into situations where their actions could be viewed as such. Acting in disregard of the law and the established limits of your judicial role to pursue a notion of the greater good for Union County violates Rules 1.1, 1.2 and 2.2 through 2.8. Your role is different from the local prosecutor and the local law enforcement for a reason. You shall at all times and to the best of your abilities, remain a neutral and detached magistrate.
Based on the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for contacting an attorney to offer a deferral agreement to the attorney’s client, who had received a speeding ticket and engaging in a process whereby she or her court clerk would directly negotiate deferral agreements with defendants, rather than allowing the prosecutor to offer these agreements.
In response to the Commission’s inquiry, the judge had indicated that her court, not the prosecutor, had been evaluating and offering traffic ticket deferrals to eligible defendants, using criteria provided by the prosecutor. The proffered deferral agreements were entitled “Fremont Town Court, Honorable Judge Hagerty Deferral Agreement” and instructed litigants to remit payment directly to the court, rather than to the prosecutor’s office. The judge acknowledged that, by communicating (or allowing her clerk to communicate) an offer to a defense attorney to resolve a client’s traffic infraction, she gave the impression that she stood in the role of prosecutor as well as judge.