Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct reprimanded a judge for criticizing her campaign opponent under the guise of a fictitious identity in a comment to an on-line newspaper story. Segal, Amended Order (Arizona Commission on Judicial Conduct November 30, 2010).
  • Based on a stipulation for discipline by consent in which the judge agreed to tender her irrevocable resignation within 5 days, the California Commission on Judicial Performance censured a judge for (1) allowing herself to be videotaped while conducting proceedings in her courtroom to promote herself for a role in a potential television entertainment program and telling an attorney representing the producer that she would set her more interesting cases on the day of the filming; (2) making numerous improper remarks and engaging in improper conduct while court proceedings were being filmed; (3) a pattern of improper conduct, including demeaning and discourteous remarks regarding litigants, court attorneys, and others; (4) making remarks in court disparaging the general clerical staff; and (5) placing a defendant into custody for contempt without affording her due process or complying with the legal requirements for contempt. Inquiry Concerning Salcido (California Commission on Judicial Performance November 10, 2010).
  • Based on a complaint by the Judicial Inquiry Board, the Illinois Courts Commission publicly reprimanded a judge for agreeing to conduct a special bond hearing on a Saturday afternoon for the brother of a long-time friend and former client who was well-known in county politics. In re Chmiel, Order (Illinois Courts Commission November 19, 2010).
  • The Louisiana Supreme Court ordered a judge to pay $2,400 in civil penalties for failing to timely file his judicial financial disclosure statement for 2008. In re Sanborn, 50 So. 3d 1279 (Louisiana 2010).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court reprimanded a former magistrate who had pled guilty to state charges of misconduct in office alleging he engaged in ex parte communications with certain defendants; used his judicial position to advance the private interests of a litigant; used a procedure for handling fines and bond services for certain defendants that was not in accordance with the orders of the Chief Justice; and appropriated public funds for his own use and benefit. In the Matter of Love, 702 S.E.2d 115 (South Carolina 2010).

Another Facebook fail

A recent case illustrates a key trap for judges on social media — putting the “personal interest in creating interesting posts” ahead of the duty to maintain the appearance of impartiality.  The Minnesota Board on Judicial Standards reprimanded a senior judge for comments he publicly posted on his Facebook page about cases to which he was assigned.  In the Matter of Bearse, Public reprimand (November 20, 2015).  The Board did not conclude that the judge pre-judged any cases or that his decisions were influenced by his posts but noted its concerns “with the appearance of lack of impartiality, with Judge Bearse’s putting his personal communication preferences above his judicial responsibilities, and with conduct prejudicial to the administration of justice.”

In September 2015, after the first day of trial in a case in which a defendant was charged with sex trafficking, the judge posted on Facebook:

Some things I guess will never change.  I just love doing the stress of jury trials.  In a Felony trial now State prosecuting a pimp.  Cases are always difficult because the women (as in this case also) will not cooperate.  We will see what the 12 citizens in the jury box do.

After 2 more days of trial, the jury found the defendant guilty.  The county attorney’s office discovered the judge’s Facebook post and disclosed it to the defense after the trial and before sentencing.  The defendant moved for a new trial.  The judge to whom the motion was assigned granted it, stating:

The posting at 7:57 pm in the evening which followed jury selection and opening statements . . . imply the premise [that] the defendant is guilty of the charge and the corollary that the woman involved is a prostitute.  They imply a pre-judgment of the case before any evidence is heard. . . .  The court will vacate the verdict and order a new trial.

The Board found these posts “could reasonably be interpreted as showing that Judge Bearse had concluded that [the defendant] was guilty before he heard any evidence.  His conduct burdened the administration of justice because it resulted in vacating the verdict rendered after a three-day trial.”

In July 2015, the judge presided over a felony bench trial.  During the trial, defense counsel had an apparent panic attack and was taken away by ambulance.  In August, the judge posted on Facebook:

Now we are in chaos because defendant has to hire a new lawyer who will most likely want to start over and a very vulnerable woman will have to spend another day on the witness stand. . . .  I was so angry that on the way home I stopped to see our District Administrator and told him, “Michael, you are going to have to just listen to me bitch for awhile.” . . .  [W]e know the new lawyer (probably quite justifiably) will be asking for another continuance.  Terrible day!!!

In September, another judge notified the Chief Judge of the post, commenting, “Sounds like it is likely to be raised as a legal issue soon.”  The Chief Judge forwarded the e-mail to Judge Bearse and recommended that he delete the post.  Judge Bearse did so and recused himself.

The Board found this post indicated that the judge had already decided that a witness was “very vulnerable” but noted his conduct did not itself require a new trial because the case needed to be retried anyway.

In another post about a medical school graduate’s petition to expunge her conviction for disorderly conduct, the judge commented, “[L]isten to this and conclude that lawyers have more fun than people.”  He then related that the conviction was based on the graduate’s assault on her boyfriend whom she had found having sex with her best friend.  He stated that he granted the petition although “[s]he is about two years early based on our new statute” and if the prosecution appealed, “which they will not, I think I will be reversed.”  Others commented on the judge’s post, stating, for example, “I am always heartened by the application of common sense.  An excellent decision, in my opinion,” and “You’re back in the saddle again Judge.”

The favorable comments, the Board stated, created the appearance that the judge’s “decisions on cases could be influenced by the desire to make a good impression of himself on his Facebook page.”

In one Facebook post, the judge commented on cases that had come before him as signing judge:

My day yesterday in the Hennepin County District Court in Minneapolis: . . . Criminal Vehicular Homicide where defendant stoned on Xanax supplemented it w/a lot of booze and then drove wrong way down a freeway colliding w/an innocent citizen driving the right way down the same freeway killing him. . . . and most interesting — three kidnappings . . . where the three were physically tortured to try and find the drugs.

In 2 instances, the judge made negative remarks in Facebook posts concerning criminal defendants with lengthy histories of bench warrants, in one instance commenting, “We deal w/a lot of geniuses!”  Other posts included, “What a zoo!” (referring to Hennepin County District Court on a particular day), and “Just awful his son turned out to be such a Klunk,” referring to a case in which the son was charged with felon in possession of a shotgun.

The Board found there was no showing that the posts (other than those related to the 2 trials) impaired the fairness of the cases but stated they “could reasonably be interpreted as showing [the judge] had concluded that the defendants were guilty.  Even if these cases were not assigned to him for trial, his opinions on the defendants’ guilt could undermine the appearance of his impartiality in criminal cases that were assigned to him.”

The judge believed that his Facebook posts could only be viewed by approximately 80 family members, friends, and members of his church, but the public could view them as well.  The judge explained that he has been on Facebook for only 2 years and was unaware of Facebook privacy settings.  He stated that he now realizes that his posts should not have been shared even with friends.

 

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance removed a judge who (1) made improper comments about pending cases during appearances on a television program; (2) acted as a private arbitrator during the filming of a pilot that was used to market and promote a proposed new syndicated “reality” series; and (3) in 4 unrelated criminal cases, interfered with the defendants’ constitutional rights to counsel and fair hearings and against self-incrimination and abused his judicial authority, becoming embroiled in 2 of the cases. Inquiry Concerning Ross, Decision and Order (California Commission on Judicial Performance November 16, 2005).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a judge who, in several family court cases, neglected to inform litigants of their statutory right to counsel and made rude and demeaning remarks to litigants. In the Matter of Assini, Determination (New York State Commission on Judicial Conduct November 18, 2005).
  • The New York State Commission on Judicial Conduct discontinued a proceeding against a former judge who admitted he could not defend charges based on his suspension from the practice of law for conversion of client funds; the judge had resigned and affirmed that he will neither seek nor accept judicial office at any time in the future. In the Matter of DiStefano, Decision and Order (New York State Commission on Judicial Conduct November 16, 2005).
  • Approving an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a judge who, in 703 cases, routinely imposed fines based on the original charges, rather than the charges to which the defendants pled guilty, resulting in fines that exceeded the legal maximum by amounts ranging from $2 to $320. In the Matter of Pisaturo, Determination (New York State Commission on Judicial Conduct November 18, 2005).
  • Based on a stipulation, the Utah Supreme Court publicly reprimanded a judge for telling an attorney in court during a hearing that the attorney was raising the “Clinton defense” and related remarks. In re Kwan, Order of Reprimand (Utah Supreme Court November 1, 2005).

Independent factual investigation flashback

According to news reports (see one here), a Utah judge removed a child from a foster home because the foster parents were lesbians.  He relied on his own research on the issue of whether children do better when raised by a heterosexual couple in the same home.  No one else had objected to the placement.  The decision was extensively covered in the media, and the judge subsequently amended his order so the infant girl will not be immediately removed from the home.  There will be another hearing in December.  Just Monday, the judge reportedly disqualified himself from the case (see report here).

You can’t believe everything you read on the internet so, unless or until there is a formal fact-finding, it is not appropriate to judge the judge.  With that caveat, the news reports bring to mind a judicial discipline case from 20 years ago.  In re Hutchinson, Commission decision (Washington State Commission on Judicial Conduct February 3, 1995).

Two men petitioned to have their names changed to female names because they were going through gender re-assignment therapy.  After the judge declined to grant the petitions until the surgery was completed, the petitioners filed a motion for reconsideration.  The judge then conducted an ex parte, independent factual investigation about gender re-assignment surgery by communicating with several medical organizations without notice to the petitioners.  During a hearing, the judge reported the results of his investigation, stating that gender re-assignment surgery is probably illegal in most states as “maiming” and is not offered in Washington and that “there is some question in my mind whether or not a physician performing this surgery in the State of Washington might not be guilty of a felony.”  The judge concluded that he should do nothing to encourage the procedure because of its high failure rate.  The judge suggested that the petitioners, if allowed to change their names, would pose a risk to those who “send their daughters into the ladies’ restroom.”  The judge stated:  “I personally feel that this whole procedure is immoral.  It evidences a mentally ill and diseased mind.  I am grateful that the physicians of this state and the rest of the United States apparently have the attitude that this surgical amputation is something beyond the medical pale.”

The Commission found that expert medical testimony clearly established that the judge’s conclusions based on his investigation were incorrect or, at best, disputed.  The Commission also found that the judge’s moral pronouncements and demeaning statements deprived the petitioners of an impartial and unbiased forum.  The Commission censured the judge.

The case illustrates why independent factual investigations, like ex parte communications, are prohibited.  That ban ensures that cases are tried in the courtroom and judicial decisions are based on evidence in the record where the parties can contest its accuracy, reliability, and credibility and appellate courts can review it.  Further, an independent factual inquiry raises questions about a judge’s impartiality.  Thus, the ABA Model Code of Judicial Conduct provides (in a provision adopted by most states):  “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.”  Rule 2.9(C).  A comment added in 2007 states that “the prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.”

 

Throwback Thursday

20 years ago this month:

  • The Arkansas Judicial Discipline & Disability Commission admonished a judge who had failed to take timely corrective action when an attorney opened his coat as if he were flashing to reveal a pair of novelty men’s briefs with an elephant’s trunk sewn onto the front, in court chambers, in the presence of other attorneys, police officials, and court personnel, while court business was to be conducted. Letter to Thomas (Arkansas Judicial Discipline & Disability Commission November 21, 1995).
  • Approving the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge for his treatment of a police officer who had given him a ticket and for questioning an attorney ex parte in his chambers about an unflattering newspaper article concerning the judge. Re Steinhardt, 663 So. 2d 616 (Florida 1995).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a former judge for her involvement with someone who was engaged in drug-dealing and money-laundering schemes. In the Matter of Backal, 660 N.E.2d 1104 (New York 1995).

Courtesy, communication, and consideration

A recent judicial discipline case emphasizes that the judicial courtesy required by the code of judicial conduct includes respect for people’s time.  A Special Court of Review Appointed by the Texas Supreme Court reprimanded a former judge for, in addition to other misconduct, a pattern of leaving the bench and failing to communicate with counsel and defendants about when or whether she would return.  In re Mullin, Opinion (Texas Special Court of Review October 21, 2015).  Following a de novo proceeding, the reprimand was an increased sanction from the admonition imposed by the State Commission on Judicial Conduct.

The judge often “left the bench with matters still to be heard” and “those remaining in the courtroom could not discern whether to go (as waiting would be futile) or stay (because the judge might return, though no one could say when).  If the lawyers stayed, they would have to forgo attending to other matters and clients.  If they left to attend to other courthouse business, they would risk not being in the courtroom if the respondent returned to the bench, in which case they would have to reschedule the matters in the respondent’s court and return to face the same problem another day.”

The judge testified there were times she had to get off the bench to take a break, to speak with another judge or lawyer in chambers, or to greet jurors, and she once had to leave during a jury trial when her mother had to be rushed to the hospital.  The Court noted “judges are permitted to leave the bench for all of these reasons and many more, as taking breaks is a matter within the judge’s discretion.”

However, it explained:

The first principle of courtesy is consideration of others.  Though a judge need not disclose why she is leaving the bench or what she will be doing while she is gone, common courtesy requires a judge to let those waiting to be heard know whether and when she anticipates returning.  By persistently leaving the bench for extended periods of time without communicating this basic information to those in attendance, the respondent showed a lack of consideration for court-goers and thus failed to act with the courtesy expected of a judicial officer. . . .

With respect to other delays and inefficiencies in the judge’s court, the Court noted that, “even if the judge’s choices produce delays and inefficiencies, the decision to choose one process or procedure over another generally does not constitute a dereliction of judicial duty that subjects the judge to discipline.”  However, it also criticized the lack of information generally available in the judge’s court.

Our legal system is best served when the trial judge manages expectations by communicating with those who come before the court about the timing and scheduling of events that are under the judge’s exclusive control, so that court-goers may plan accordingly.  Taking this simple measure shows consideration for others and reflects the type of professional courtesy expected of a Texas judge.

The respondent testified that when she took office she inherited a busy court, took a hands-on approach, worked hard, and through her efforts was able to significantly reduce the number of pending cases.  Assuming that the respondent’s characterization of her record is accurate, it does not excuse the lack of consideration for court-goers, who, as a matter of course, were subjected to lengthy wait times, delays in resolution of pending matters, and multiple court appearances because of the respondent’s failures.  Lawyers need to be able to explain the legal process and proceedings to their clients and to advise them of the likely costs and timetables of the proceeding.  Time estimates aid planning by helping court-goers to form realistic expectations about what is involved in a particular court appearance and about how long it should take so that they can make arrangements with employers, childcare providers, schools, and the like, and ensure transportation to and from the courthouse.

Similarly, a previous post noted several recent discipline cases illustrating that lengthy court session also demonstrate a lack of the judicial temperament.

Throwback Thursday

25 years ago this month:

  • Pursuant to a memorandum of understanding, a part-time municipal court judge resigned and agreed not to serve in or run for judicial office in Arkansas, and the Judicial Discipline & Disability Commission dismissed complaints alleging that the judge (1) had been charged with unlawfully operating a motor vehicle while intoxicated, violating the implied consent law, and operating a motor vehicle without a valid driver’s license; (2) had presided at a hearing in which he assessed himself a fine for not having a valid driver’s license; (3) had failed to promptly dispose of the court’s business and given preferential treatment to 2 people regarding traffic tickets; (4) had failed to properly administer his court or to comply with several state statutes; and (5) had, in his capacity as a judge, signed an order that he had prepared in his capacity as an attorney, canceling a lien on land owned by a client. Memorandum of Understanding (Jackson) (Arkansas Judicial Discipline & Disability Commission November 13, 1990) (www.state.ar.us/jddc/).
  • The Arkansas Judicial Discipline & Disability Commission publicly admonished a judge not to address attorneys or other persons in his court, when members of the public are present, in a manner that is or may be perceived to be derogatory regarding their appearance, manner of performance of duties, or competence. Letter to Donovan (Arkansas Judicial Discipline & Disability Commission November 16, 1990) (www.state.ar.us/jddc/).
  • Approving a stipulation and the recommendation of the Judicial Qualification Commission, the Florida Supreme Court publicly reprimanded a judge for twice using very profane language in court in reference to the county sheriff. Inquiry Concerning Zack, 570 So. 2d 938 (Florida 1990).
  • Accepting the recommendation of the Commission on Judicial Fitness and Disability, the Oregon Supreme Court censured an associate justice of the Court for soliciting contributions to his election campaign. In re Fadeley, 802 P.2d 31 (Oregon 1990).