In November 2016, the Pennsylvania Attorney General released a report on an investigation of e-mails exchanged among prosecutors, judges, and others involved in the criminal justice system from 2008 to 2015.  Investigators used a computer program and a list of terms related to race, religion, sex, profanity, and other content to search more than 6.4 million documents found on the attorney general’s servers.  Although, as the Attorney General stated, nothing in the e-mails suggested there were “ex parte communications between members of the judiciary and OAG employees about cases or matters affecting the administration of justice,” investigators did find 11,930 inappropriate e-mails and classified 38 individuals as high-volume senders of inappropriate e-mails, including 8 senior government officials, 2 supreme court justices, and 3 judges.  Those 5 judicial officials are not identified by name in the report, but the Attorney General stated that it had referred them to the Judicial Conduct Board.

When the report was released, Justice Michael Eakin had already resigned after the Board filed a complaint alleging that he sent offensive e-mails to and received offensive e-mails from other Pennsylvania judges and attorneys, particularly defense attorneys and employees of the office of attorney general.  Based on stipulations of fact in lieu of trial, in March, the Pennsylvania Court of Judicial Discipline fined the now-former justice $50,000 for participating in the exchange of e-mails “with their imagery of sexism, racism, and bigotry” that displayed “arrogance and the belief that an individual is better than his or her peers,” which was “antithetical to the privilege of holding public office, where the charge is to serve, not demean, our citizens.”  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016).  For previous posts on the case, see here and here.   In late 2014, Supreme Justice Seamus McCaffery had retired while the Board was investigating allegations against him, including allegations he had exchanged hundreds of sexually explicit e-mails with a member or members of the Office of Attorney General.

In a press release in response to the Attorney General’s report, the Board stated that, “Consistent with its obligations under the Pennsylvania Constitution, including its obligations of confidentiality, the Board will conduct an independent examination” of the e-mails sent by members of the Pennsylvania judiciary found on the servers of the Office of Attorney General, “in conformity with its recently announced ‘Statement of Policy Regarding Electronic Communications’ and will take any and all steps necessary to preserve the integrity of the judiciary.”  The Board had adopted the statement of policy earlier in November, noting it had received questions from “many judicial officers at all levels of Pennsylvania’s judiciary . . . relating to the Board’s investigation of alleged judicial misconduct related to the use of electronic communications.”

The policy defines, among other terms, “electronic communications,” “inappropriate,” and “misconduct perpetuated by electronic communications.”  For example, “inappropriate” is defined as:

Material that is offensive to a viewer of ordinary and reasonable sensibilities.  The term includes, but is not limited to, material that constitutes:  legal pornography, sexually-suggestive content, including suggestive depictions of nudity short of pornography; stereotypical depictions of gender, including misogynistic material and material that relates to domestic violence, gender identity or expression, religion, sexual orientation, socioeconomic status, race or ethnicity.

The Board explained that it will consider “the degree of the judge’s knowledge of and participation in electronic communications containing inappropriate or illegal content or misconduct perpetrated by electronic communications, and the judge’s response,” the frequency of the communications, the “degree of offensiveness of the electronic communications to a viewer of ordinary and reasonable sensibilities,” the “nature of the illegality of any electronic communications,” the “nature of any misconduct perpetrated by electronic communication,” and the potential effects on the independence, integrity, and impartiality of the judiciary, and the public’s confidence in the judiciary.  With respect to the judge’s involvement in the communications, the Board will consider:

1. Whether the judge was a sender, forwarder, or had exchanged, i.e., sent and received, and/or forwarded, illegal or inappropriate electronic communications, or misconduct perpetrated by electronic communications;
2. Whether the judge was only a recipient of illegal or inappropriate electronic communications, or misconduct perpetrated by electronic communications;
3. Giving weight to the relevant facts and circumstances in a particular case, whether the judge took any reasonable steps in response to receiving inappropriate or illegal electronic communications or misconduct perpetrated by electronic communications or misconduct perpetrated by electronic communications; and
4. If necessary, whether the judge reported inappropriate or illegal electronic communications or misconduct perpetrated by electronic communication to any appropriate criminal, investigatory, or administrative authority.

The Board explained that the policy only provided guidance, did “not have the force and effect of law,” and was not binding on members of the judiciary or the Board.

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