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.