Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for making public comments about a pending murder case in 3 media interviews and being discourteous to the prosecutor in a post-trial proceeding.  In the Matter of Piampiano, Determination (New York State Commission on Judicial Conduct March 13, 2017)

In September 2015, the judge, then a county court judge, was nominated to be a candidate for the supreme court (the highest trial level court in the county).  Also in September, he began presiding over a jury trial in People v. Charles Tan in which the defendant was charged with second degree murder for allegedly shooting his father at their family home.

According to news accounts, the case was “polarizing” for the community.  There were allegations that Tan’s father was abusive to his wife and family.  Tan was a student at Cornell University, and his supporters raised over $50,000 to help his defense.

On October 8, after approximately 8 days of jury deliberations, the judge granted a mistrial, which the county assistant district attorney and Tan’s counsel had consented to.  The defense moved for a trial order of dismissal, which would preclude a retrial; the assistant district attorney opposed the motion.  The judge ordered the parties to appear again on November 5.

Also on October 8, after declaring the mistrial, the judge gave 1-on-1 interviews about the case in his chambers with reporters from 2 television stations and a newspaper.  Portions of the interviews were broadcast or published and made available on the media outlets’ web-sites.  For example, one of the TV stations broadcast the following report:

THE JUDGE:  They probably got close to a verdict but, in the end, it just wasn’t to be.

REPORTER:  Judge Piampiano says both sides agreed to throw in the towel, and for that matter, dismiss the jury.

THE JUDGE:  But after eight days, how far do you go?  Do you go another two days, a week, a month?

REPORTER:  Prosecutors already say they plan to retry Charlie Tan, but Piampiano is in “wait-and-see” mode.

THE JUDGE:  I’ve asked the prosecutor to think through it, advise me on the 5th, and if there’s to be a retrial, it would likely be in February or March of next year, not before.

* * * *

REPORTER:  The judge says the jury worked longer than any jury he’s seen, but added the evidence presented left them with more questions than answers.

THE JUDGE:  Jurors don’t get the evidence they want, they get the evidence they get.  And then they have to sort through that and figure it out.  (Unintelligible) …

REPORTER:  This jury didn’t quite figure it out, but a new jury might get that chance.  And the judge is optimistic that finding one without too much bias will be easy.

THE JUDGE:  Sometimes journalists, and judges, and lawyers think that the whole world revolves around this courthouse.  I’ve met many people in the jury selection process, who are not “news junkies,” if you will, and who have only peripherally heard about this matter, or other matters.

REPORTER:  As for Charlie Tan, Piampiano did not rule out the possible impact of his supporters or his side of the story.

THE JUDGE:  I’m not sure, Cody, that I can recall, in recent times, somebody being that sympathetic a figure.

In another example, in response to a question from the newspaper reporter about his denial of the prosecutor’s request for an accomplice liability charge related to the defendant’s mother, the judge stated:

I’m not at liberty to discuss the prosecutor’s remarks or this case in particular, but I can share with you that with respect to accomplice liability, for the court to charge that, in any case where it’s requested, there has to be a reasonable view of the evidence that two or more people are acting in concert to accomplish the same goal, that they’re acting with the same state of mind, and that there’s some conduct, behavior or otherwise, from the evidence, that suggests that they’re acting together and in concert.  So, in any trial where a judge is asked to charge that, what the judge is going to be doing, as I did in this trial, is reflect on the evidence that was presented.  Typically, I’ll review my notes, take one last look at the law, and then listen to the arguments of both sides, and then reflect on whether or not there can be such a charge based on the evidence in that particular case.

On November 3, the judge won the election.

During the post-trial hearing on November 5, the assistant district attorney confirmed that his office intended to retry Tan for murder.  After speaking without interruption for several minutes, the judge commented on the jury’s inability to reach a verdict when “evaluating whether the evidence demonstrated beyond a reasonable doubt that the crime had been proven,” and the assistant district attorney asked if he could speak briefly.  The judge replied, “No, you may not.  If you speak I’m going to put you in handcuffs and put you in jail.”

The judge granted the defendant’s motion to dismiss.  The prosecution appealed, but the appellate division dismissed the appeal, holding there is no statutory authority to appeal a trial order of dismissal, although it stated that, if it were able to review the merits, it would agree that the judge erred in dismissing the indictment.

The Commission concluded that the judge’s comments during the series of press interviews violated the New York rule that “[a] judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories.”  (New York has not adopted the current version of the rule in the ABA Model Code of Judicial Conduct:  “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 Commission emphasized that, “[t]he fact that respondent made these statements in media interviews at a time when he was a candidate for election to the Supreme Court raises a question as to whether his public comments were motivated by political concerns.”  The Commission made several additional findings.

• The prohibition applies to “‘any public comment, no matter how minor, to a newspaper reporter or to anyone else, about a case pending before him.”
• There is “no exception … for explanations of a judge’s ‘decision-making’ process.’”
• Going “well beyond general explanations of the law,” the judge had discussed legal issues in the case (such as the accomplice charge) and described “his interactions with the jury and his sense of the jury’s deliberations.”
• The judge should have recognized that any general statements he made about procedures and the legal system “in that context would be understood as pertaining to Tan and therefore were problematic.”
• The Commission found “[e]specially troubling” the judge’s description of the defendant as a “sympathetic” figure,” stating that could convey an appearance that the judge “viewed the defendant sympathetically, raising doubts about his impartiality and thus undermining public confidence in the impartial administration of justice.”

The Commission also found it was improper for the judge to threaten to have the prosecutor placed in handcuffs and put in jail.  It explained:

By asking to speak, the prosecutor was simply doing his job, and even if respondent believed that the attorney was interrupting or speaking out of turn, his response was a substantial overreaction to the attorney’s conduct. . . .  The fact that respondent did not act on his threat does not excuse his conduct since baseless threats against an attorney are inconsistent with a judge’s obligation to be “patient, dignified and courteous” to lawyers and others with whom the judge deals in an official capacity . . . .