Monthly Archives: August 2016

Above the partisan fray

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In a challenge to provisions in the Kentucky code of judicial conduct, the U.S. Court of Appeals for the 6th Circuit (1) held unconstitutional bans on judicial candidates making speeches for or against a political organization or candidate, campaigning as a member of a political organization, and making misleading statements, but (2) upheld prohibitions on judges and judicial candidates making contributions to a political organization or candidate, publicly endorsing or opposing a candidate for public office, acting as a leader or holding office in a political organization, knowingly or with reckless disregard for the truth making false statements during a campaign, and making pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office in connection with cases, controversies, or issues that are likely to come before the court.  Winter v. Wolnitzek, Opinion (6th Circuit August 24, 2016).  (Thus, the Court affirmed in part and reversed in part the holding of the U.S. District Court for the Eastern District of Kentucky discussed in a previous post.)

The 6th Circuit stated:

Regulating campaign speech is not easy.  It’s not supposed to be.  But treating elections for the courts just like elections for the political branches does not make sense either. Candidates for judicial office, if elected, are supposed to follow the rule of law — no matter current public opinion, no matter the views of the political branches, no matter the views of the parties that support them.  But candidates for the other offices are permitted to, indeed often expected to, listen to the views of their constituents and parties.  Navigating these cross-currents is no simple task . . . .

The Court distinguished the rules it was overturning on campaigning as a member of a party and making speeches on behalf of a party from the rules it was upholding because the former denied judicial candidates the means of effectively running their own campaigns while the latter kept “judges above the partisan fray of trading political favors” and prevented “the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics.”  It explained “[t]here is a distinction between speech-limiting regulations that limit all judges (elected or not) and those that hamstring judges in their efforts to run for election.”  The Court noted that “a state ‘cannot have it both ways.  If it wants to elect its judges, it cannot deprive its citizens of a full and robust election debate,” but concluded, “there is no having-it-both-ways problem with a contributions limit like this one,” for example.

A contribution to a political organization or a candidate in a different campaign “is less a judge’s communication about his qualifications and beliefs than an effort to affect a separate political campaign, or even more problematically, assume a role as political powerbroker.” . . .  While “[j]udicial candidates have a First Amendment right to speak in support of their campaigns,” . . . they do not have an unlimited right to contribute money to someone else’s campaign. . . .

Financial contributions, we realize, amount to speech. . . .  But the alignment between speech and money makes a difference only with respect to Janus-faced regulations that tell judicial candidates to run for office but deny them the tools for doing so.  That is not what this regulation does.  A contribution of time, money, or reputation to a political organization or a candidate in a separate election, whether judicial or not, differs in kind and degree from a judicial candidate contributing the same to his own campaign.  There is “a dividing line between” the speeches clause, “which impermissibly bars protected speech about the judge’s own campaign,” and the contributions clause, “which addresses a judge’s entry into the political arena on behalf of his partisan comrades.”

Upholding the prohibition on false statements, the Court noted that it had recently invalidated an Ohio ban on false statements that covered all non-judicial candidates for political office, but stated that the Ohio law was broader than the Kentucky rule and emphasized that Kentucky’s interest in preserving public confidence in the honesty and integrity of its judiciary is narrower and “more compelling than Ohio’s purported interest in protecting voters in other elected races from misinformation.”

However much or however little truth-bending the public has come to expect from candidates for political jobs, “[j]udges are not politicians,” and a “State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” . . .  Kentucky has a “vital state interest” in safeguarding the public’s confidence in the honesty of its judiciary, . . . and the State’s ban on materially false statements by judicial candidates survives strict scrutiny — at least facially.

But the Court concluded that a ban on misleading statements “adds little to the permissible ban on false statements, and what it adds cannot be squared with the First Amendment.”  The Court is the sixth court to declare a prohibition on judicial candidates’ making misleading statements unconstitutionally vague and broad.  See also Butler v. Alabama Judicial Inquiry Commission, 802 So. 2d 207 (Alabama 2001); Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002) (provision in Georgia code); In re Chmura, 608 N.W.2d 31 (Michigan 2000); In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114 (Ohio 2014); O’Toole v. O’Connor, 2016 U.S. Dist. LEXIS 109923 (U.S. District Court for the Southern District of Ohio 2016).

There is a document summarizing all caselaw since the U.S. Supreme Court decision in Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site at www.ncsc.org/cje.

Throwback Thursday

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5 years ago this month:

  • Based on a stipulated resolution, the Arizona Supreme Court censured a former judge for (1) hearing cases involving an attorney with whom he had an intimate relationship, (2) unwanted sexual conduct toward an assistant public defender and retaliating against her when she rejected his advances, and (3) sending e-mails of a sexual nature to a third attorney. The Court also permanently enjoined him from serving as a judicial officer in Arizona and suspended him from the practice of law in Arizona for 2 years.  In the Matter of Abrams, 257 P.3d 167 (Arizona 2011).
  • The California Commission on Judicial Performance admonished a judge for revoking a criminal defendant’s pro per status, speaking to the defendant harshly, repeatedly stating that she did not believe him, grilling him on cases he had cited in his motion, and stating 3 times that he was lying to the court. Public Admonishment of Comparet-Cassani (California Commission on Judicial Performance August 16, 2011).
  • Based on a joint recommendation, the Mississippi Supreme Court suspended a judge without pay for 60 days and reprimanded her for ex parte conversations with a criminal defendant and the defendant’s husband, attempting to release the defendant from jail, and making comments during 2 hearings that clearly reflected their personal relationship. Commission on Judicial Performance v. Cowart, 936 So. 2d 343 (Mississippi 2011)
  • Based on an agreed statement of facts, the Mississippi Supreme Court suspended a judge for 270 days without pay and reprimanded him for interfering with the prosecution of a defendant charged in a crime in which a relative of the judge was the victim and making statements in open court that encouraged others to engage in vigilante justice. Commission on Judicial Performance v. McGee, 71 So. 3d 578 (Mississippi 2011).
  • Based on a stipulation, the New Hampshire Judicial Conduct Committee reprimanded a part-time judge for angrily confronting a man who was putting up signs opposing his brother’s gubernatorial candidacy and contacting an attorney who was active in politics about the incident. Stephen, Reprimand (New Hampshire Judicial Conduct Committee August 25, 2011).
  • Adopting in part the presentment of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court censured a retired judge for failing to recuse from a case based on his relationship with a central witness and, after recusing himself, making 2 appearances in another judge’s courtroom during the trial. In re Perskie, 24 A.3d 277 (New Jersey 2011).
  • The North Carolina Judicial Standards Commission reprimanded a judge for striking 5 convictions at the ex parte request of an attorney who had represented that the district attorney approved the relief; the judge accepted the reprimand. Public Reprimand of Ammons (North Carolina Judicial Standards Commission August 4, 2011).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 30 days without pay for receiving supplemental payments from the police department that prosecuted cases before her. In the Matter of McKinney, 714 S.E.2d 284 (South Carolina 2011).

On-line complaints

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Although a form is not required to file a complaint against a judge in most states, use of a form increases the chances a complainant will provide the information a judicial conduct commission needs to evaluate whether an investigation is justified.  Most judicial conduct commissions have complaint forms on their web-sites.  Several states have Spanish-language forms as well as English versions.  Many of the on-line forms are the fillable PDF type, convenient for the complainant and decreasing the possibility that illegibility will prevent the commission from understanding the allegations.

There are 5 judicial conduct commissions that provide a form that allows on-line submission of complaints:

The Massachusetts Commission recently reported that 79 of the 152 complaints it received in the first 2 quarters of 2016 were filed electronically using its on-line process.

The Center for Judicial Ethics has links to judicial conduct commission web-sites.

Throwback Thursday

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10 years ago this month:

  • The California Commission on Judicial Performance admonished a judge who delayed taking a verdict in a murder trial because he was at a baseball game, refusing to allow another judge to take the verdict or to return from the game to take the verdict himself. In the Matter of Zellerbach (California Commission on Judicial Performance August 15, 2006).
  • The California Commission on Judicial Performance admonished a judge who remanded a probationer to custody without notice or the opportunity to respond to the charges. In the Matter Concerning Iles (California Commission on Judicial Performance August 16, 2006).
  • Granting a joint motion for approval of a recommendation, the Mississippi Supreme Court reprimanded and suspended from office for 30 days without pay a judge who (1) engaged in an ex parte communication with a complainant in a case in which he had a conflict because of his relationship with her husband and subsequently dismissed the complaint when the complainant did not appear for a hearing despite the failure to provide proper notice; (2) intervened with an issuing officer on behalf of an individual who received a ticket and handled the fine money; and (3) remanded 2 charges to the file without requiring the individuals to appear and without contacting the issuing officer. Commission on Judicial Performance v. Cowart, 936 So.2d 343 (Mississippi 2006).
  • The Mississippi Supreme Court reprimanded a judge and suspended him from office for 30 days without pay for ex parte communications and setting aside orders handed down by other judges. Commission on Judicial Performance v. Britton, 936 So. 2d 898 (Mississippi 2006).
  • The Ohio Supreme Court suspended for 2 years a judge who deceived several doctors into over-prescribing painkillers to which he was addicted; the suspension was stayed on condition that the judge serve a 2-year probation and comply with a 2-year lawyers’ assistance program recovery contract. Disciplinary Counsel v. Ault, 852 N.E.2d 727 (Ohio 2006).
  • The Texas State Commission on Judicial Conduct reprimanded a judge who (1) assisted his wife’s guardianship company obtain an exclusive contract with the county to provide services to the probate court and (2) made numerous court appointments to a friend and business partner who owed him money. Public Reprimand of Windle (Texas State Commission on Judicial Conduct August 31, 2006).
  • The Texas State Commission on Judicial Conduct reprimanded a former judge for failing to obtain the required judicial education for 2005. Public Reprimand of Lewis (Texas State Commission on Judicial Conduct August 31, 2006).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for urging those at a sentencing hearing to cheer for the Seattle Seahawks. In the Matter of Grant, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct August 4, 2006).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a 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 the Matter of Ladenburg, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct August 4, 2006).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for making comments to jurors who had rendered a guilty verdict that reasonably created the impression in the jurors’ minds that they had reached the wrong verdict, failed the system, and/or disappointed the judge. In the Matter of Austin, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct August 4, 2006).

 

Treatment of domestic violence complainants

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In 2 recent cases, judges were disciplined for imposing sanctions on complaining witnesses in domestic violence cases who failed to carry through with the prosecution of their complaints.

Approving a revised consent judgement, the Florida Supreme Court publicly reprimanded a judge for finding the victim in a domestic violence case in contempt when she failed to respond to the prosecution’s subpoena to testify at trial, being discourteous and impatient toward the victim, and creating the appearance of partiality toward the state.  Inquiry Concerning Collins (Florida Supreme Court July 7, 2016).  The Court also ordered the judge to complete an anger management course and attend a domestic violence course.

In a criminal domestic violence case over which the judge presided, the victim failed to respond to the state attorney’s subpoena to testify in the trial against her abuser.  As a result, the state was unable to proceed with the trial and dismissed a charge of dangerous exhibition of a weapon; the defendant accepted a plea to a reduced charge of simple battery.

The judge issued an order to show cause why the victim should not be held in contempt of court.  When the victim appeared, the judge instituted direct criminal contempt proceedings against her even though she was not represented by counsel or advised of her right to present evidence or testimony.

The victim was distraught and apologized for failing to appear, citing anxiety, depression, and a desire to move on from contact with her abuser.  The judge was discourteous and impatient, raising her voice, using sarcasm, speaking harshly, and interrupting the victim.  After pressing the victim about the veracity of her statements to police, the judge rebuked her, declaring, “You disobeyed a court order knowing that this was not going to turn out well for the State.”  When the victim stated that she was “not in a good place,” the judge responded, “and violating a court order did not do anything for you.”  The judge found the victim in contempt and sentenced her to 3 days in jail even though the victim pleaded that she needed to take care of her 1-year-old child.

The judge explained her good faith belief that she was exercising appropriate legal authority but acknowledged that she should have been more patient and used less inflammatory and sarcastic language and a less aggressive tone.  The judge accepted full responsibility and expressed remorse that her intemperate conduct brought unnecessary criticism upon her court and the entire judiciary and could impair the public’s perception of the fairness and impartiality of Florida’s justice system.

Following a hearing, the Kentucky Judicial Conduct Commission reprimanded a judge for ordering a domestic violence complainant jailed after she recanted her testimony.  In re Collins, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission April 22, 2016).

One afternoon, the judge presided over a bond reduction hearing in a case in which the defendant was charged with domestic violence for allegedly assaulting Jasmine Stone.  During the hearing, Stone recanted her allegations against the defendant.  Over the objection of the prosecution, the judge immediately ordered a deputy sheriff to take Stone into custody, directed the prosecutor to charge Stone with making false statements, and set a $10,000 cash bond.

About an hour later, the prosecutor formally asked the judge to release Stone based on information that the defendant had pressured her to recant; the prosecutor also indicated that the prosecution did not intend to proceed against Stone for making false statements.  However, the judge refused to lower the bond or release Stone from custody.  A writ of habeas corpus was filed on Stone’s behalf; the circuit court denied the writ but vacated the bond, and Stone was released from custody later that afternoon.

The Commission found that the judge failed to afford Stone rudimentary due process rights and set bond even though the judge was the complaining witness, noting “bond is to be set by a detached Magistrate, not one who orchestrated the filing of the criminal charge in the first place.”  The judge admitted that she made a mistake but argued it was not made in bad faith because she “could have placed this lady in jail for contempt of Court.”  However, the Commission found “nothing that this witness stated could in any way be considered direct criminal contempt of Court.”

By the Respondent’s own testimony and as seen from the video tape of this encounter, the Respondent acknowledged she did not know what was true and a hearing needed to be conducted with the presence of a police officer who was on the scene in order for the truth to be determined.  If the Respondent needed a hearing in order to determine the truth then in no way could the witness who was questioned by the Court without being advised of her right against self-incrimination and without being afforded counsel be considered to be in direct criminal contempt of the Court or any Order it entered.  The witness may well have committed false swearing, but that does not provide a Court with the ability to punish such a person for direct criminal contempt.

The Respondent should never have directed the Sheriff to take this witness into custody and to charge the witness with a crime.  That is not the role of the Judiciary.  That is the role of the duly elected prosecutorial authorities . . . .

In 2011, pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for summarily holding a domestic violence complainant in contempt after she recanted a statement she had given to the police.  In re Shelton, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct July 8, 2011).  The judge also agreed to attend training on domestic violence within a year.

Very early one morning, the police arrested a defendant on the complaint of C.A. that he had threatened to hit her with a belt.  At approximately 11:00 a.m. on the same day, C.A. went to the police department and, in a new statement in a supplemental police report, indicated that she had lied to the police at the scene because she was afraid of being arrested.

At approximately 1:00 p.m., the judge presided over the defendant’s arraignment.  After preliminary advisements, the defendant indicated his intention to plead guilty.  As the prosecutor submitted the signed agreement and police reports to the judge, the prosecutor directed the judge’s attention to the supplemental police report.  After considering the situation and reviewing the records, the judge found probable cause but declined to accept the defendant’s stipulated plea and waiver of trial and counsel.  Instead, the judge announced he would set the matter over to a pretrial conference so the parties would have the opportunity to consider the supplemental police report.

After hearing this announcement, C.A. asked the judge if she could make a comment.  The judge stated, “No ma’am, you can have a moment in a minute, trust me.”  After a brief pause, the judge directed C.A. to stand and summoned the court bailiff to handcuff her.  The judge explained:

Okay, I’m going to go ahead and give [the defendant] an opportunity to maintain all of his rights, that’s why I’ve not accepted his plea.  I’m going to, at this point in time, find you [C.A.] in contempt of court because you have written a second statement stated, ah, stating you “called the police, they came and I lied and said [the defendant] had threatened me, which is untrue.  I want to recant my statement, I was frightened and afraid I would be arrested.”  I’m gonna find you in contempt of court.  I’m gonna impose a day in jail.  So you’ll be released in the morning.  This gives the City an opportunity to further review the case and if [the defendant] is still in custody on Monday, then I’ll certainly be reviewing his case at pre-trial.  If he’s able to post bail, then he will still be scheduled to come to court on Monday afternoon.  It’s the order of the court.  Thank you, gentleman.

C.A. was taken from the courthouse and booked into the jail; she spent the night in jail and was released from custody the following morning.

In answering the Commission charges, the judge explained that he had reasoned that, given the serious nature of domestic violence and his concerns for preserving the integrity of domestic violence laws, it was necessary to take C.A. into custody to “preserve the order, authority and dignity of the court,” because ignoring her admission that she had lied might imply that the court was not able or willing to take action when false statements impact judicial proceedings.  The judge also explained that he did not provide C.A. an opportunity to speak in mitigation because he was concerned that she might incriminate herself and based on his interpretation of the compelling circumstances exception in the contempt statute.

The agreement stated that C.A.’s conduct did not occur within the courtroom and was not directed at the court or judge and, therefore, did not fall within the definition of contemptuous behavior, that the judge’s decision to jail C.A. overnight was not necessary to preserve order in the court or to protect the authority and dignity of the court, and that the judge failed to comply with the statutory procedural requirements by failing to issue a written order and to provide C.A. an opportunity to speak.  The judge agreed that his reasoning was erroneous and that his prior experience as a prosecutor and judge involved with domestic violence issues caused him to over-analyze the situation.

The agreement noted that the judge’s demeanor was calm and his language was not insulting or offensive.  However, the agreement also noted that his conduct was significantly injurious because jailing C.A. overnight impermissibly violated her liberty interest and right to due process.  The agreement stated:

Although C.A. may have been implicated in the crimes of domestic violence assault and providing a false statement to a public servant, those potential criminal charges were not properly before the court, nor is it within the court’s authority to file criminal charges.  C.A. entered respondent’s courtroom as a purported victim of domestic violence, and was therefore owed a heightened degree of respect and protection by those who administer the criminal justice system, as is codified in Washington Crime Victim’s Bill or Rights.

 

Throwback Thursday

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20 years ago this month:

  • Accepting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court removed a judge who (1) during a dispute between a pastor and several members of a church, issued an ex parte temporary restraining order against the pastor without notice, had the pastor arrested on several occasions, went to the church during a disturbance, and refused to allow the pastor to press charges against church members as a result of a disturbance; (2) had ex parte communications about tickets and dismissed cases without a hearing; (3) signed an execution of judgement without authority; (4) handled fine and bond money contrary to statute and loaned litigants money; (5) without authority, allowed a defendant to plead to lesser charges; and (6) after being served with a formal complaint by the Commission, ordered constables and court staff to give him relevant official and unofficial notes and evidence and threatened punishment for contempt if they failed to comply. Commission on Judicial Performance v. Dodds, 680 So. 2d 180 (Mississippi 1996).
  • The New York State Commission on Judicial Conduct censured a judge who had stated to a woman who had appeared in court to pay a fine the judge had imposed on her son that he did not want “mom or dad” to pay the fine, and, without provocation, loudly and angrily called her a “god-dam, interfering, middle-aged bitch” and her son a “stupid shit.” In the Matter of Mahon, Determination (New York State Commission on Judicial Conduct August 8, 1996).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a judge who had refused to release a defendant because he had been required to get out of bed to conduct the arraignment. In the Matter of McKevitt, Determination (New York State Commission on Judicial Conduct August 8, 1996).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct censured a judge who (1) after another judge with whom she had had a close, personal, and intimate relationship married another women, obtained confidential records from the matrimonial proceedings of his new wife; (2) sent approximately 60 anonymous and harassing mailings containing malicious, vituperative, and derisive statements about the other judge and his wife to newspapers, businesses, their relatives, friends, neighbors, and others; and (3) accepted a bargained guilty plea from a defendant without advising him or defense counsel that she had received a note from the jury. In the Matter of Miller, Determination (New York State Commission on Judicial Conduct August 14, 1996).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct censured a judge who had a consensual sexual relationship with a judicial secretary for 1 or 2 months. In re Fritzler, Stipulation and Order of Censure (Washington State Commission on Judicial Conduct August 9, 1996).

 

Yet another Facebook fail

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Dropping his First Amendment defense to charges brought by the Kentucky Judicial Conduct Commission, a judge agreed to a 90-day suspension without pay for, in addition to other misconduct, publishing comments on Facebook that accused the county commonwealth’s attorney of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth’s attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth’s attorney while the case was pending before the Kentucky Supreme Court.  In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016).  The judge made similar comments during a presentation to the Louisville Bar Association.

On November 18, 2014, the judge dismissed a jury panel in a criminal case, claiming the panel did not represent a fair cross-section of the community.  The Kentucky Attorney General, on behalf of Jefferson County Commonwealth Attorney Thomas Wine, filed a motion for certification of law with the Kentucky Supreme Court to determine, among other issues, whether a judge has the authority to dismiss a jury panel without providing evidence of a systemic exclusion of a class of persons.  A TV station posted an article on-line entitled, “Louisville judge questioned for dismissing juries based on lack of minorities” about the case.  Following that article, the judge published comments on Facebook that included:

  • Going to the Kentucky Supreme Court to protect the right to impanel all-white juries is not where we need to be in 2015. Do not sit silently.  Stand up.  Speak up.
  • But whatever you believe the lack of representation is, it is clear that all-white juries are not in the best interest of a community that is 20% black and where the jail population stands at 55% black…. And that is what Tom Wine is trying to do.
  • Wine has called me a racist. And set the media on me to deceive the people while he does his deeds.  If people, particularly affected people, would stand up and call him out, he would go right back into the corner.
  • If you believe you have a right to seat all-white jury panels in Louisville, Kentucky in 2015, tell the people. Wine shouldn’t deceive the people by focusing on me and calling me a racist.
  • Tom Wine, the Jefferson Commonwealth Attorney and Louisville’s top prosecutor, is going to the Kentucky Supreme Court to have my ruling overturning and protect his right to seat all-white jury panels in Louisville, Kentucky …. If successful, his actions will have a negative impact on all citizens, particularly our black citizens.
  • After his acquittal, the Jefferson Commonwealth’s Attorney Thomas B. Wine filed a motion with the Kentucky Supreme Court to determine I was incorrect in dismissing an all-white jury panel.
  • When the prosecution loses a trial and goes complaining to the Kentucky Supreme Court about their entitlement to the all-white jury panel the trial judge set aside, their purpose is readily apparent.
  • Complaining he should have had an all-white jury panel after losing a trial is poor form at the very least. At most it is something much more sinister.
  • The truth is the Jefferson County Commonwealth’s Attorney does not have to pursue his right to impanel all-white juries. He is doing so because he wants to.
  • We have received a tremendous outpouring of support from all over the country. Thank you to Dr. Boyce Watkins, Ricky Smile, D.L. Hughley and other national figures who have spoken out in favor of the case and against the Jefferson Commonwealth’s Attorney’s action before the Kentucky Supreme Court. . ..  There is very little question about your intent when a black defendant is acquitted by a jury of eight whites and four blacks and you complain about the trial judge granting a defense motion to dismiss an all-white jury panel.
  • If asked, even the Jefferson Commonwealth’s Attorney may offer his “support” for diverse juries. Would that be good enough?  Of course not.  His actions say the exact opposite.
  • History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming he is entitled to an all-white jury panel. No matter the outcome, he will live in infamy.
  • The Jefferson Commonwealth’s Attorney is for all white jury panels.

The judge’s criticism of the public defender and criminal defense attorneys included:

  • Anybody can say they “support” diverse juries. Especially members of the criminal defense bar.  They certainly cannot afford to say they are against them.  They would be hypocrites…err…they are hypocrites.
  • Why didn’t the Public Defender respond? He did.  He just never notified me.  You will have to ask him why he remains silent when he is the one who asked me to set aside the jury panel and so many of his clients will be affected by an adverse decision.  We have obtained a copy of his response.  It is little wonder the motion for certification was granted.  The response did not address the issues presented.
  • I will be posing some questions to him as to why he said things he said in his response. And why he is quiet when his lawyers routinely ask for the relief I granted him in this case.
  • Open letter to the Louisville Metro Public Defender and Louisville Criminal Defense Lawyers:  Dear Counsel:  Where are you?  You asked me to dismiss the jury panel consisting of 40 white jurors and 1 black juror.  Yet you are silent.  You are the ones who regularly ask me to set aside jury panels for lack of racial diversity.  Yet you are silent.  The Jefferson Commonwealth’s Attorney is for all-white jury panels.  The people are for racially diverse jury panels.  What are you for?  Thank you for your consideration.  Judge Olu Stevens.

The judge made comments regarding the motion to certify the law while the case was pending before the Kentucky Supreme Court, including:

  • If you have ever used Facebook to say “vote for me,” but remain publicly silent or indifferent on this issue that threatens the inclusion of black people and other minorities on our jury panels, shame on you. Stand up for something other than yourself.  Speak the truth.
  • When a black man is acquitted and then the prosecutor asserts his right to an all-white jury panel, those who remain silent have chosen comfort over principle.

 

Another Facebook fail

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Based on an agreement between the judge and the Judicial Inquiry Commission, the Alabama Court of the Judiciary suspended a judge for 6 months without pay for beginning a Facebook relationship with a woman whom he had met in his official capacity and exchanging sexually explicit messages and photos with her, often during office hours and from the offices of the probate court.  In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016).  On an agreed list of mitigating factors, the parties noted that the judge now understands the dangers of Facebook communications and the public nature of even “private” messages on social media, has deleted his Facebook page, and no longer participates in social media.

The judge first met Ms. J.T. in April 2013, when he performed her wedding ceremony to Mr. W.T.  He noted at the time that she was 34 years old and Mr. W.T. was 68.  Approximately 1 week later, Ms. J.T. called the judge’s office and stated she wanted the marriage annulled.  The judge told her she would have to go to the circuit court.

In December 2013, Mr. W.T.’s daughter filed a petition to establish a conservatorship and to be appointed as guardian to protect his assets.  Ms. J.T. called the judge to ask that she, as the wife, be appointed guardian.  The judge informed Ms. J.T. that she needed to get an attorney.  Ms. J.T. did not appear at the hearing, and W.T.’s daughter was made guardian of his estate.

The marriage between Mr. W.T. and Ms. J.T. was annulled by the circuit court on June 11, 2014, pursuant to the agreement of the parties.

During or prior to July 2015, the judge established a Facebook account under the profile name “Judge Leon Archer.”  His Facebook profile used a picture of himself in his judicial robe and identified him as the probate judge of Tallapoosa County, Alabama.

During the summer of 2015, the judge sent Ms. J.T. a Facebook “friend” request, which she confirmed.  In January 2016, the judge initiated a Facebook messaging conversation with Ms. J.T. that lasted approximately 3 weeks.  Each message he sent to Ms. J.T. identified the sender as “Judge Leon Archer.”  Their messaging included sexually explicit content, comments, invitations or propositions, and pictures of the judge’s genitals and a female’s breasts, buttocks, and genitalia.

In late January 2016, Ms. J.T. provided a copy of the messages to a reporter.  The judge met with the reporter and admitted that the messaging occurred, including the transmittal of the nude pictures.  During the Commission investigation, the judge confirmed that a photo of a man nude below the waist sent to Ms. J.T. was a picture he had taken of himself in the courthouse and sent to Ms. J.T.

Throwback Thursday

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25 years ago this month:

  • Adopting the recommendation of the Commission on Judicial Performance, the Mississippi Supreme Court reprimanded a judge and fined him $500 for (1) at the request of third parties, finding 13 defendants not guilty without a trial, hearing, or notice to the arresting officers; (2) allowing clerical personnel to dismiss non-moving violations at the request of or with the agreement of the issuing officer; (3) allowing clerks and officers to dismiss 109 tickets without a trial or hearing; and (4) dismissing 14 cases, both moving and non-moving violations, by marking not guilty on the court records without a trial or hearing, based on ex parte proceedings or without any appearance of the defendant. In re Seal, 585 So. 2d 741 (Mississippi 1991).

 

 

Recent cases

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  • The Arkansas Commission on Judicial Discipline & Disability issued a letter of informal adjustment to a former judicial candidate for statements in his campaign materials. Williams, Letter of informal adjustment (Arkansas Commission on Judicial Discipline & Disability July 15, 2016).
  • Approving the findings, conclusions, and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for an ex parte communication with the chief assistant state attorney on behalf of a defendant over whose case he was presiding in veteran’s court and making a public offer to convert the defendant’s remaining community control to probation prior to conducting any hearing. Inquiry Concerning Holder (Florida Supreme Court July 7, 2016).
  • Approving a revised consent judgement, the Florida Supreme Court publicly reprimanded a judge for finding the victim in a domestic violence case in contempt for failing to respond to the prosecution’s subpoena to testify at trial and being discourteous and impatient toward the distraught victim; the Court also ordered the judge to complete an anger management course and attend a domestic violence course at the Florida Judicial College. Inquiry Concerning Collins (Florida Supreme Court July 7, 2016).
  • Based on the findings of a hearing justice after a de novo review of a report of the Committee on Judicial Responsibility and Disability, the Maine Supreme Judicial Court suspended a judge for 30 calendars days and censured him for statements he made in a letter to counsel regarding a court proceeding in which he was a party. In the Matter of Nadeau (Maine Supreme Judicial Court July 21, 2016).
  • Pursuant to the judge’s waiver of his right to demand a formal complaint and public hearing, the Minnesota Board on Judicial Standards reprimanded a judge for accusatory, hostile, and discourteous comments he made in 2 family law cases. In the Matter of Stacey, Public reprimand (Minnesota Board on Judicial Standards July 26, 2016).
  • With the judge’s consent, the New Hampshire Judicial Conduct Committee reprimanded a judge for independently investigating facts on the internet and considering those facts in reaching her decision the value of the marital home in a divorce case and receiving and considering facts not put into evidence by the parties in a second divorce case; the Committee cautioned the judge about delay in rendering decision but dismissed the complaints against her. In the Matter of Albee, Reprimand and caution (New Hampshire Judicial Conduct Committee May 9, 2016).
  • The Texas State Commission on Judicial Conduct admonished a judge for driving while intoxicated and repeatedly invoking his judicial position during the traffic stop. Public Admonition of Glicker and Order of Additional Education (Texas State Commission on Judicial Conduct July 12, 2016).
  • The Texas State Commission on Judicial Conduct reprimanded a judge for unilaterally amending a charging instrument and negotiating a plea with the defendant and leaving a threatening, intimidating, and harassing voicemail message for the defendant. Public Reprimand of Scales (Texas State Commission on Judicial Conduct July 18, 2016).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct censured a judge for meeting privately with a retired judge before a hearing in a paternity/custody case in which the former judge’s daughter was a litigant and failing to disclose that contact; allowing the retired judge to make and argue a motion to void a temporary restraining order against his daughter even though he was not a party or lawyer in the proceeding; and granting the motion despite the daughter’s absence from the hearing. In re Anderson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 15, 2016).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for refusing to allow a defendant to testify when he would not, for religious reasons, raise his hand while affirming he would tell the truth. In re Parise, Stipulation, agreement, and admonishment (Washington State Commission on Judicial Conduct July 15, 2016).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for failing to comply with state campaign reporting laws. In re Tveit, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct July 15, 2016).