A previous post — “Another Facebook fail” — described the admonition of a judge by the Texas State Commission on Judicial Conduct for her comments about pending cases on Facebook. Following a de novo trial, a Special Court of Review has now dismissed those charges. In re Slaughter, Opinion (Texas Special Court of Review September 30, 2015). (Because it dismissed the charges, the court did not reach the First Amendment challenge raised by the judge.)
A couple of days before a high profile criminal trial was set to begin in her court, the judge posted on her Facebook page: “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning.” The defendant was charged with unlawful restraint of a child for allegedly keeping a 9-year-old boy in a 6-foot-by-8-foot wooden enclosure inside the family home.
Subsequently, the judge posted several additional comments on her Facebook page:
Opening statements this morning at 9:30 am in the trial called by the press “the boy in a box” case.
After we finished Day 1 of the case called the “Boy in the Box” case, trustees from the jail came in and assembled the actual 6’x8’ “box” inside the courtroom!
This is the case currently in the 405th!,” with a link to a Reuters article entitled “Texas father on trial for putting son in box as punishment.”
Defense counsel filed a motion to recuse the judge and a motion for mistrial based on the judge’s Facebook posts. A visiting judge removed the judge from the case, and the transferee judge granted the defendant’s motion for mistrial. At least 2 attorneys involved in the case complained about the judge’s comments.
The Texas code of judicial conduct provides: “A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge’s court in a manner which suggests to a reasonable person the judge’s probable decision on any particular case.” (To compare, the 2007 American Bar Association Model Code of Judicial Conduct rule provides: “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 judge presented testimony from a law professor; a lawyer and published authority regarding the legal and judicial ethics surrounding the use of social media; and 2 Texas district court judges. Expert testimony on the law is out of place in judicial discipline proceedings (or any legal proceeding for that matter) so it is troubling that the review court (comprised of 3 appellate court judges) seemed to delegate the decision on whether the judge violated the code of judicial conduct to the judge’s experts rather than fulfilling that responsibility itself based on the factual evidence and legal arguments presented. See “The Judicial Ethics Expert,” Judicial Conduct Reporter (spring 2011). The review court relied on the experts’ testimony that the judge’s Facebook comments did not violate the code of judicial conduct, did not amount to willful or persistent conduct clearly inconsistent with the proper performance of the judge’s duties, and did not cast public discredit upon the judiciary or administration of justice.
Regardless whether the judge’s posts violated the code, the way she used Facebook showed poor judgement (as even the review court suggested) and should not be viewed as laudable public outreach. Instead of using her Facebook page as an educational antidote to media sensationalism, she seemed to adopt the news media’s judgement of which cases should be highlighted and what attitude to take. To the litigants, all cases are big, and none deserve a catchy nickname. Tabloids may use exclamation marks when commenting on legal proceedings; a judge should be less excited and more dignified. The judge’s posts added nothing to the public’s understanding of the courts but merely reinforced its fascination with the crime.