The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting, “Time for a tree and a rope . . .” on Facebook in response to the arrest of an African-American man in the killing of a police officer. Amended Public Reprimand of Oakley and Order of Additional Education (Texas State Commission on Judicial Conduct May 8, 2017). The Commission also ordered the judge to complete 30 hours of training for new judges and participate in 4 hours of instruction on racial sensitivity with a mentor chosen by the Commission.
On November 21, 2016, the San Antonio Police Department posted to its Facebook page a mugshot of Otis McKane, an African-American man, with the following statement:
Today at 1545 hrs. Otis Tyrone McKane was taken in custody for the capital murder of SAPD Det. Benjamin Marconi. The arrest was made by SAPD in a joint effort with multiple law enforcement agencies. The arrest was made without incident. The San Antonio Police Department would like to thank everyone who assisted in locating the suspect.
In response, the judge posted to the police department Facebook page the comment, “Time for a tree and a rope . . .” His comment, along with the post, also appeared on his own Facebook page.
The former editor of a local newspaper took a screen shot of the judge’s Facebook post and disseminated it to the news media. The judge removed his post and issued a public apology, describing his comment as “harsh,” “off-the-cuff,” and “curt,” but denying it had anything to do with race. The judge and his post became the subject of negative media attention locally, nationally, and internationally, and the Commission received 18 written complaints. The complainants expressed numerous concerns about the post, including its call for vigilante justice, apparent disregard for due process of law, racial insensitivity, and possible influence on the jury pool. Multiple complainants also questioned the judge’s suitability for judicial office and his ability to perform his judicial duties impartially.
Asked by the Commission to explain the intent and context of his Facebook post, the judge responded, “My comment was intended to reflect my personal feelings that this senseless murder of a police officer should qualify for the death penalty. In my mind the race/gender of the admitted cop killer was not relevant.” The judge explained that a “tree and a rope” was a reference to a humorous advertising campaign for Pace Picante Sauce salsa from the 1980s. The judge does not believe his post cast discredit on the judiciary because the “media stories were promoted as a political attack” and his words were twisted into “phrases [and] headlines that were not accurate.” During his appearance before the Commission, the judge made statements that indicated to the Commission that he could benefit from racial sensitivity training. The judge also testified that he had not attended training for new judges.
The Commission found that the judge’s post “cast reasonable doubt on his capacity to act impartially in the performance of his duties” and was “willful conduct that cast public discredit on the judiciary and the administration of justice.”
The most-requested resources section of the Center for Judicial Ethics web-site has a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials related to social media.
“Social Media and Judges: Bright Lines and Best Practices” will be the plenary session at the 25th National College on Judicial Conduct and Ethics, October 4-6, 2017, in Austin, Texas. Topics for the break-out sessions are:
- The Curious Judge: Independent Factual Investigations
- Judicial Discipline and Technology
- Ethical Guidelines for Members of Judicial Conduct Commissions
- Judicial Impairments
- Best Practices for Judicial Ethics Advisory Committees
- Pro Se Litigants and Judicial Ethics
- Fines, Fees, and Judicial Ethics
- Determining the Appropriate Sanction
- The Role of Public Members
- Introduction to Judicial Ethics and Discipline for New Members of Judicial Conduct Commissions
The up-coming spring and summer issues of the Judicial Conduct Reporter will be a 2-part article on social media and judicial ethics. Part 1, the spring issue, will be a general introduction to the topic followed by a discussion of the social media issues related to judicial duties: “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and commenting on pending cases. The second part of the article, which will be the summer issue of the Reporter, will cover off-bench conduct: abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, commenting on issues, political activity, and campaign conduct. You can sign up to receive notice when new issues of the Reporter are available.