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.

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