Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for discussing the substance of a case in a casual, ex parte conversation with a bailiff. Bassett, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for stating law enforcement needed to issue more citations in a presentation about productivity credits for the courts to the county board of supervisors. Basteen, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for sending an e-mail and initiating a telephone conversation with a psychologist about a family member’s custody dispute in another state in which he repeatedly referenced his judicial experience. Gottsfield, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for making statements impugning the integrity and professional conduct of an attorney appearing before him and making improper sarcastic remarks. McClennen, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for providing incorrect information about her educational qualifications for her on-line judicial biography, inflating her qualifications on her resume, and claiming to have completed or been excused from judicial training that she did not complete and was not excused from. DeForest, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for issuing delayed rulings and then back-dating the orders. Peterson, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for designating herself as counsel of record in a lawsuit filed on behalf of herself and her husband. Segal, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a hearing officer for screaming repeatedly at individuals in the courtroom during 2 hearings. Martinez, Order (Arizona Commission on Judicial Conduct December 4, 2012).
  • The California Commission on Judicial Performance publicly admonished a judge for remarks he made while sentencing a defendant convicted of rape and other sexual assault offenses. In the Matter Concerning Johnson, Decision and Order (California Commission on Judicial Performance December 13, 2012).
  • The New York State Commission on Judicial Conduct publicly censured a judge for failing to report the counsel for the public administrator to law enforcement and disciplinary authorities and continuing to award him legal fees despite knowing that he had taken advance legal fees without court approval and/or in excess of the guidelines. In the Matter of Holzman, Determination (New York State Commission on Judicial Conduct December 13, 2012).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for (1) making an ex parte hospital visit to a juvenile in a delinquency proceeding, (2) being discourteous to a probation supervisor, (3) being discourteous to a lawyer, and (4) issuing a decision in a custody and visitation matter after foreclosing cross-examination by the parties and denying the attorneys an opportunity to be heard. In the Matter of Buchanan, Determination (New York State Commission on Judicial Conduct December 11, 2012).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for physically assaulting his girlfriend. In the Matter of Horton, Determination (New York State Commission on Judicial Conduct December 10, 2012).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for being discourteous to a defendant and convicting him without a plea or trial. In the Matter of McLeod, Determination (New York State Commission on Judicial Conduct December 11, 2012).
  • The Washington State Commission on Judicial Conduct publicly reprimanded a judge for losing his temper during a sentencing hearing, over-reacting to a juvenile’s show of disrespect, engaging in a demeaning and personal tirade against a juvenile, and making gratuitous comments at a hearing on a motion for an order of protection. In re Wulle, Decision and Order (Washington State Commission on Judicial Conduct December 14, 2012).

 

Anonymous gifts trending

In 2017, 2 judicial ethics committees responded to requests from judges about what to do with anonymous gifts.

In Florida Advisory Opinion 2017-11, the judge had received an anonymous birthday card at home that contained $10,000 in cash.  The judge immediately turned the money over to the sheriff’s office.  After an investigation, the sheriff’s office “determined that the money was almost certainly sent by a person who, at the time the judge received the money, had a case pending before the inquiring judge” but that it did not have enough evidence to charge the litigant.  The money remains in the sheriff’s custody.

The Florida Judicial Ethics Advisory Committee advised that the code of judicial conduct does not provide guidance for how the judge should dispose of the $10,000 but discouraged the judge from trying “to direct the method and manner in which the gift is disposed of . . . .”  The committee explained:

Any such efforts by the inquiring judge calls into question the integrity of the prior judicial proceedings.  Additionally, if the inquiring judge were to direct that the money be given to a particular charitable organization or other charitable groups such a decision could be perceived as the judge using the judicial office to solicit funds for a particular group in violation of Canon 5C(3)(b)(iii).

The committee did suggest that the judge could “[d]isclaim any possessory interest in the funds,” leaving it with the sheriff’s office and allowing them to decide what to do with the funds or requesting that they turn it over to the Florida Department of Financial Services, Division of Unclaimed Property.  See also West Virginia Advisory Opinion (December 5, 2012) (a judge who received an envelope containing an anonymous note and a $20 bill should promptly notify court security and turn the note and the $20 bill over to the sheriff as potential evidence).

In New York Advisory Opinion 2017-87, the New York Advisory Committee on Judicial Ethics responded to an inquiry from a judge who had had a modest, anonymous gift of food left at her chambers.  The identity of the donors was unknown, but the judge believed it came from a religious sect, the members of which have no pending cases before her.  Noting “there does not appear to be any basis to conclude that any of the unidentified donors is a ‘party or other person who has come or is likely to come or whose interests have come or are likely to come’” before the judge, the committee stated that the judge may retain the gift.

Recently, several newspapers reported that, in Wisconsin, the day after Judge Angela Sutkiewicz denied Steven Avery’s request for a new trial, someone sent her a floral arrangement at the courthouse with a card that said, “Best wishes from your admirers at SAIG (Steven Avery Is Guilty).”  Avery had been convicted in 2007 for the murder of a freelance photographer; the case was profiled in a 2015 hit Netflix film, Making A Murderer.  In a letter to counsel in the case, the judge stated that she had “rejected” the floral arrangement and returned it to the flower shop.  The judge also contacted the sheriff’s department “in an abundance of caution,” and the sheriff’s department “determined that the sender is neither a party to this case nor is representing a party in this case.”  See, e.g., “Judge Cries Foul After Anti-Steven Avery Group Apparently Sends Her Flowers,” by Aaron Keller, Law & Crime (December 2, 2017).

 

Throwback Thursday

10 years ago this month:

  • Based on a stipulation and joint recommendation, the Illinois Courts Commission publicly reprimanded a judge who drove while under the influence of alcohol and was involved in an accident in which the driver of another car sustained injuries. In re Young, Order (Illinois Courts Commission December 20, 2007).
  • Based on a stipulation and joint recommendation, the Illinois Courts Commission publicly reprimanded a judge for illegally transporting open alcohol as a passenger in another judge’s vehicle while aware that the other judge had been drinking alcohol for much of the day. In re Fiss, Order (Illinois Courts Commission December 20, 2007).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a non-lawyer judge for sending a threatening letter to a tenant in an attempt to enforce an oral settlement agreement without a lawful basis and based on the landlord’s ex parte request. In the Matter of Brown, Determination (New York State Commission on Judicial Conduct December 12, 2007).
  • Based on the recommendation by the Judicial Standards Commission, the North Carolina Supreme Court public censured a judge for presiding in a child custody matter involving a former client and for influencing bail amounts set by other judges in cases against the former client. In re Allen, 653 S.E.2d 423 (North Carolina 2007).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for sua sponte dismissing traffic cases filed by a constable without a motion to dismiss from the prosecutor and refusing to accept citations or complaints written by the constable based on his prior relationship with the constable and his personal opinion that the constable lacked credibility, good judgment, or the appropriate temperament. Public Admonition of Wall (Texas State Commission on Judicial Conduct December 13, 2007).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for abusive verbal confrontations and repeated use of profanity at a drug court conference. In re Wulle, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2007).

 

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for referring to a defendant as “dumb-ass” during a sentencing hearing. Ditsworth, Order (Arizona Commission on Judicial Conduct November 13, 2017).
  • Based on the recommendation of the Commission on Judicial Conduct, the Arizona Supreme Court censured a judge for taking the questions and the answer key for a written assessment from her mentor’s papers during new judge orientation. In the Matter of Aboud, Order (Arizona Supreme Court December 4, 2017).
  • The Nevada Commission on Judicial Discipline suspended a judge for 60 days without pay, ordered him to pay a $5,000 fine to an anti-bullying organization, and ordered him to submit to a psychiatric exam for (1) making comments to a reporter about 2 pending cases to protect his re-election bid; (2) refusing to vacate a hearing in a case in which a motion for recusal was pending and advising a party to file a complaint against opposing counsel with the State Bar; and (3) failing to accord plaintiff’s counsel the right to be heard during a hearing, repeatedly using intemperate language and virtually yelling at her, directing that she be handcuffed, and holding her in contempt. In the Matter of Potter, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline November 22, 2017).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for, after arraigning a defendant and entering an order of protection, receiving unsolicited ex parte information from 2 sources claiming that the defendant had violated the order of protection by taking trips with the complaining witness, failing to disclose the communications, repeating the information as fact during a pre-trial conference, and reiterating the accusations when he accepted a plea agreement, sentenced the defendant, and issued a 6-month order of protection. In the Matter of Curran, Determination (New York State Commission on Judicial Conduct November 14, 2017).
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct closed its investigation of a complaint alleging a non-lawyer judge made public comments on Facebook criticizing public officials and a state gun regulation and conveying bias in favor of law enforcement and against a political organization, a social activist group, and members of a religious group. In the Matter of Clarkin, Decision and order (December 8, 2017).
  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for seeking the advice of another judge about her son’s case and acquiescing in his offer to communicate ex parte with the judge who was handling the case. In re Roca (Pennsylvania Supreme Court November 22, 2017).
  • Affirming the Court of Judicial Discipline, the Pennsylvania Supreme Court upheld the removal of a judge for listening to another judge’s requests for favorable treatment for parties in 3 cases, finding in favor of those parties, and calling the other judge to let him know of her compliance with his requests. In re Segal (Pennsylvania Supreme Court November 22, 2017).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) threatening to end a house arrest program if a defendant’s attorney did not withdraw an objection and (2) entering an order giving 30 days credit toward completion of a sentence to any male inmate who received a vasectomy and any female inmate who received a birth control implant. Letter to Benningfield (Tennessee Board of Judicial Conduct November 15, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for his treatment of prospective jurors and his use of the contempt power against lawyers; the Commission also ordered the judge to obtain 8 hours of additional education. Public Reprimand of Aguilar and Order of Additional Education (Texas State Commission on Judicial Conduct November 6, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) communicating ex parte with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness on her nephew’s behalf at his probation revocation hearing and (2) shaming and reprimanding jurors who found a defendant guilty. Public Reprimand of Hawthorne (Texas State Commission on Judicial Conduct November 9, 2017).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for failing to comply with a statute requiring courts to follow a rotating system of appointments for attorneys ad litem, mediators, and guardians. Public Admonition of Ginsberg (Texas State Commission on Judicial Conduct December 15, 2017).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for his exchange with an umpire at his son’s baseball game in which he inappropriately and unnecessarily injected his judicial position; the Commission also ordered the judge to obtain 2 hours of instruction with a mentor.  Public Warning of Warren and Order of Additional Education (November 10, 2017).
  • The Virginia Supreme Court removed a judge from office for contacting 2 potential witnesses prior to his wife’s trial. Judicial Inquiry and Review Commission v. Pomrenke (Virginia Supreme Court November 27, 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for stating during a hearing, “we don’t know whether he’s some white guy like me making a threat or somebody who’s, you know, more likely to be a gangster.” In re North, Stipulation, agreement, and order of admonishment (Washington State Commission on Judicial Conduct December 8, 2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for driving under the influence. In re Dingledy, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct December 8, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo showing him conducting an initial appearance. Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017).
  • The West Virginia Judicial Investigation Commission publicly admonished a judge for (1) failing to give a defendant a jury trial as he had timely requested and to respond to the allegations and (2) publicly endorsing a candidate for appointment for magistrate and commenting on an impending matter against a former magistrate. Public Admonishment of Halloran (West Virginia Judicial Investigation Commission November 2, 2017).

 

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for 3 ex parte contacts with a defense attorney in a capital murder case. Public Admonishment of Maciel (California Commission on Judicial Performance December 1, 1997).
  • The Indiana Commission on Judicial Qualifications publicly admonished a judge for releasing a defendant being held on his own recognizance without giving the prosecution a chance to be heard and making the unsubstantiated entry in the record that the release was due to the state’s failure to proceed. Admonition of Evrard (Indiana Commission on Judicial Qualifications December 31, 1997).
  • The New York State Commission on Judicial Conduct publicly admonished a judge for an intemperate diatribe that included name-calling and dehumanizing remarks during pre-trial plea discussions in a case. In the Matter of Hannigan, Determination (New York State Commission on Judicial Conduct December 17, 1997).
  • Pursuant to an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for attempting to coerce guilty pleas in traffic cases, failing to hold public court sessions as required by law, and a practice of receiving ex parte communications from police officers concerning the merits of traffic cases before him, including representations that the actual speed that defendants had been driving was greater than the speed charged. In the Matter of Westcott, Determination (New York State Commission on Judicial Conduct December 17, 1997).
  • The New York Court of Appeals upheld the removal of a judge for displaying bias and improper demeanor in a number of cases, including commenting to his court clerk that “every woman needs a good pounding now and then” and stating to his clerk and another judge that he felt that orders of protection “were not worth anything because they are just a piece of paper,” were “a foolish and unnecessary thing,” and were “useless” and of “no value.” In the Matter of Roberts, 689 N.E.2d 911 (New York 1997).
  • The New York Court of Appeals publicly censured a judge for summarily disposing of 2 criminal cases without affording the prosecution the right to be heard, dismissing 1 charge as a favor to the defendant and his wife who were social acquaintances, and giving evasive and disingenuous testimony before the State Commission on Judicial Conduct. In the Matter of Skinner, 690 N.E.2d 484 (New York 1997).
  • Based on a stipulation of facts, the North Carolina Supreme Court publicly censured a former judge for (1) making handwritten entries of “guilty” in the cases of 2 individuals who had indicated their intent to plead not guilty; (2) attempting to have a defendant plead guilty with the knowledge that the defendant was represented by counsel who was not present in court; (3) refusing to credit a defendant with jail time served as required by law; and (4) making statements and taking actions, in and out of court, that some could consider as less than patient, dignified, and courteous to attorneys, witnesses, litigants, and court personnel. In re Renfer, 493 S.E.2d 434 (North Carolina 1997)

 

Another Facebook fail

The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo showing him conducting an initial appearance.  Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017).

On September 5, 2017, the judge arraigned a woman on felony financial exploitation of the elderly and related charges for allegedly forging her dying mother’s will to receive more than $1,000,000.  WSAZ-TV filmed the arraignment and ran a story in which the judge prominently appeared.

The judge posted on his Facebook page a still photo of the video from the TV station’s story.  The photo showed him seated in court conducting the appearance with the caption, “Police:  Woman Exploits over One Million Dollars from Dying Mom.”

The judge’s post elicited several negative posts from members of the public, including “[d]isgusting,” “[h]ang ‘em high Brent,” “[h]opefully you set a high bond,” and “I didn’t think anything could be lower than rescinding DACA.  I was wrong.”  The comments also included statements of support for the judge’s handling of the arraignment, such as “[g]o Brent” and “[g]et ‘em Brent,” and [t]hat face!  Good one.”

The Commission “strongly” disagreed with the judge’s argument that he had not violated the code of judicial conduct because he posted the photo “without any comment, opinion, or statement.”  The admonishment explained:

There is an old maxim that “a picture is worth a thousand words.”  The saying is deigned to convey the concept that a single image often expresses an intricate idea better than any written description.  By placing that still photo on his Facebook page, Respondent expressed to his Facebook friends the woman’s perceived guilt in a louder voice and in a more certain tone then if he had actually written the words himself.

The Commission also found that the post was “designed to elicit responses from his friends because that’s what Facebook is meant to be – an alternate public means of communication,” noting “[t]he fact that the friends’ comments were largely negative is no surprise, and Respondent’s failure to remove them constituted a tacit endorsement of the same.”  The Commission emphasized that the judge’s action “was certainly contrary to the neutral and detached demeanor of all judges but was undoubtedly popular with his friends.”

The concern that a judge may be posting on social media with an eye more to engaging an audience than promoting confidence in the judiciary was also expressed in a 2015 public reprimand from Minnesota.  In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).  One of the judge’s Facebook posts described a medical school graduate’s petition to expunge her conviction for disorderly conduct because she could not be licensed with the conviction on her record.  The judge commented, “listen to this and conclude that lawyers have more fun than people.”  He then related that the conviction was based on the woman’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.”

Comments on the judge’s post included, “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 Board found that the favorable comments could create 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” and noted its concern that the judge was “putting his personal communication preferences above his judicial responsibilities.”

The summer and fall issues of the Judicial Conduct Reporter were devoted to the issue of judicial ethics and social media.

Throwback Thursday

25 years ago this month:

  • Adopting the recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge who, during a hearing in open court, displayed a handgun and loaded it, questioned an unruly and threatening defendant, and then kept the loaded handgun in a zippered pouch on the bench. Inquiry Concerning Fleet, 610 So. 2d 1282 (Florida 1992).
  • Adopting the recommendations and findings of the Judicial Tenure Commission based on a stipulation and the judge’s consent, the Michigan Supreme Court publicly censured a judge who, after being denied access to a flight because he and his wife were not at the gate on time, was verbally abusive to the airline representative and grasped her braided hair when she turned to walk away, causing her head to jerk backwards. In the Matter of O’Brien, 494 N.W.2d 459 (Michigan 1992).
  • Adopting the recommendations and findings of the Judicial Tenure Commission based on a stipulation and the judge’s consent, the Michigan Supreme Court publicly censured a judge who made 7 harassing and obscene telephone calls to a man regarding the man’s relationship with the judge’s ex-wife and became involved in a verbal and physical altercation with the man in public. In the Matter of Thomas, 494 N.W.2d 458 (Michigan 1992).
  • Adopting in part the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals publicly censured a judge who had appeared on a nation-wide television program, and discussed specific facts and issues of a child custody case in which he had presided when an appeal from his decisions was pending. In the Matter of Hey, 425 S.E.2d 221 (West Virginia 1992).