Ex parte communications:  “Convenience, happenstance, and habit”

Based on a special committee report, the Judicial Council of the U.S. Court of Appeals for the 7th Circuit publicly admonished a judge of the U.S. District Court for the Central District of Illinois for his practice of exchanging ex parte communications with the U.S. Attorney’s Office.  In re Bruce, Memorandum (7th Circuit Judicial Council May 14, 2019).  The Council also ordered that the judge remain unassigned to any matters involving the Office until September 1, watch a Federal Judicial Center training video, and read excerpts of the Code of Conduct for U.S. Judges.

Before being appointed in 2013 to the U.S. District Court for the Central District of Illinois, the judge worked for 24 years in the U.S. Attorney’s Office in the Central District of Illinois and had “unsurprisingly” formed friendships with several people working in that office.  After being appointed, the judge remained friendly with many people in the office, including paralegal Lisa Hopps.

In December 2016, Hopps complained in an e-mail to the judge about his absence from a going-away party for U.S. Attorney Jim Lewis, and the judge responded that he had missed the party because he was presiding over the trial in U.S. v. Nixon.  The judge said one of the Assistant U.S. Attorneys in the case was “entirely inexperienced” and criticized that attorney for repeating “the bull***t” from the defendant’s testimony and turning a “slam-dunk” case into a “60-40” one for the defendant.  The judge mentioned his boredom and added that he “work[s] hard not to try” cases, which he testified referred to not acting as an advocate even when a case is being poorly tried.

In late 2017, Hopps shared these e-mails with Assistant U.S. Attorney Timothy Bass after the judge found that Bass had misled the court in a high profile criminal case in which the defendant was a former member of Congress.  Bass then notified other personnel in the U.S. Attorney’s Office about the e-mails, and the Office disclosed the e-mails to Nixon’s counsel.  Nixon filed a motion for a new trial based on the e-mails, which is still pending.

After a review, the U.S. Attorney’s Office discovered additional e-mails between the judge and members of the Office in other cases and disclosed the e-mails to the defense in those cases.  The Federal Defender in the Central District, whose office represented the defendants in many of the cases, filed a complaint.

In August 2018, the Illinois Times published an article titled, “Federal judge engaged in ex parte talk.”  Other news outlets also reported the story, and the “coverage and its aftermath prompted” the Chief Judge of the 7th Circuit to file a complaint and prompted the Central District’s Chief Judge to remove the judge from all cases involving the U.S. Attorney’s Office.

The special committee found that the judge frequently had ex parte communications with employees of the U.S. Attorney’s Office about requests for warrant approvals, draft plea agreements, jury instructions, docketing issues, scheduling matters, and criticisms of individual Assistant U.S. Attorneys.  The special committee also found that probation officers regularly contacted the judge directly and copied the Office but not defense counsel on those e-mails.  The committee also found that the judge occasionally had ex parte communications with the Office after he had entered judgment in a criminal case, for example, congratulating Assistant U.S. Attorneys when they prevailed on appeal in cases over which he had presided.  Most of the communications were by e-mail, but some were in person or over the phone.

Further, in addition to the Nixon-related e-mails, the committee found that the judge had communicated ex parte about a second pending trial with the U.S. Attorney’s Office.  After the judge and Assistant U.S. Attorney Elly Perison had a misunderstanding during a pretrial-conference about what documents had been filed in U.S. v. Gmoser, Peirson sent the judge a series of docket entries, copying his clerk and defense counsel.  In a private response, the judge stated, “My bad.  You’re doing fine.  Let’s get this thing done.”  During the hearing, the judge explained that his comment was only intended to comfort Peirson after the misunderstanding.  Disclosure of this e-mail  prompted a defense motion for a new trial, which remains pending.

The committee noted that there was no evidence that the judge’s ex parte communications with the U.S. Attorney’s Office “impacted any of his rulings or advantaged either party” or were on the merits of cases, with the exception of the Nixon-related and appeal-related e-mails.  The judge “admitted that some of his communications were flatly inappropriate and others were unwise.”  However, he initially claimed that the e-mails about scheduling and other ministerial matters were not objectionable, arguing that ex parte communications about minor matters were “‘permissible for the efficient operation of the court,’” were the “default,” and were part of the “culture” of the courthouse that went back at least to his predecessor as district judge.

However, although the code allows an ex parte communication for scheduling “when circumstances require it,” the special committee emphasized that, “’when circumstances require it’ is key.  As Judge Bruce now concedes, the majority of his ex parte communications did not ‘require’ the exclusion of defense counsel; they were often a matter of simple convenience, happenstance, and habit.”  The committee acknowledged that “certain circumstances will require ex parte communications, including genuine emergencies and emails relating to warrant applications,” but stated that no good reason had been provided why defense counsel should not have been included in “the routine scheduling and ministerial discussions” the judge had had with the Office and that the communications violated the code even if the practice was attributable to courthouse culture.

The special committee disagreed with the judge’s argument that his sanction should be private, concluding that a public response was required given the “public criticism of Judge Bruce’s ex parte communications, found in news reports and defense motions for new trials.”  The committee stated that “the public heeds the judiciary’s decisions on the belief that it operates independently and with integrity, and this case suggests that such belief in Judge Bruce’s work on cases involving the Office may have waned.”

However, the committee also emphasized that it was not condemning the judge’s “ongoing friendships with members of the Office.  Such relationships are normal, . . . and there is ample guidance on when recusal or disqualification based on friendship is appropriate . . . .  The bottom line is that a judge’s closeness to individuals having cases before him simply does not excuse ex parte communications prohibited by judicial norms and the Code of Conduct.”  Although the committee noted that “some interviewees expressed a concern that Judge Bruce remained too friendly with members of the Office,” it concluded that “no evidence suggested that Judge Bruce had an inappropriate relationship with anyone at the Office.”

 

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s