Judicial rides

Recently, based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a non-lawyer judge for giving a defendant a ride home after his arraignment and then presiding over his case, in addition to other misconduct.  In the Matter of Parker, Determination (New York State Commission on Judicial Conduct August 13, 2020). 

The judge released E.B. after arraigning him on grand larceny, a felony.  Mr. B. appeared without counsel, and no one from the district attorney’s office was present.  During the arraignment, Mr. B. told the judge that he was a professional musician.  After the arraignment, the judge engaged Mr. B. in a conversation about music and the musicians with whom Mr. B. had performed.  The judge then offered to give Mr. B. a ride home, which Mr. B. accepted.  The judge drove Mr. B. to his residence, and they talked throughout the car ride, which lasted approximately 15 minutes.

A week later, Mr. B. appeared without counsel before the judge.  At the prosecutor’s recommendation, the charge against Mr. B. was reduced, and the judge granted an adjournment in contemplation of dismissal.  The judge did not disclose to the prosecutor that he had given Mr. B. a ride home or offer to recuse himself from the case.

During the Commission’s investigation, Mr. B. stated that he and the judge did not discuss his case during the car ride although he could not recall what they did discuss.  In his sworn testimony, the judge averred that they only discussed music and did not discuss Mr. B.’s case.

The Commission found:

Respondent had an extreme lapse in judgment when he offered and then gave a defendant a ride home after conducting the defendant’s arraignment in the absence of a prosecutor and releasing him on his own recognizance.  Such extra-judicial conduct involving a defendant whose case is pending in respondent’s court is highly improper.

The Commission found that the judge’s misconduct was compounded when he disposed of Mr. B.’s case a week after giving him a ride, explaining that “a reasonable person might conclude that giving the defendant a ride home indicated that respondent could not be impartial when it came to adjudicating the defendant’s case.”

This was not the first time a New York judge had been sanctioned based on a car ride.  In In the Matter of Burke, Determination (New York State Commission on Judicial Conduct (April 21, 2014), the Commission publicly censured a judge for riding in a police car with a defendant after arraigning him, recommending that the defendant retain the judge’s business partner as his attorney, giving him legal advice, and presiding over his case, in addition to other misconduct.

The judge arraigned Michael Matus on driving while intoxicated charges, suspended his license, and released him on his own recognizance.  During the arraignment, the judge told Matus that he could apply to the court for a hardship driver’s license.

After the arraignment, the judge, who had left his vehicle at a service station, asked the police for a ride home.  The judge was driven home in the police car transporting Matus.  The judge sat in the front seat with an officer; Matus was in the back seat.  During the ride, the judge told Matus that he could no longer hear Matus’s case because he was riding in the police car with him.  Matus told the judge that the suspension of his license would cause extreme hardship because he had to drive his wife to New York City for cancer treatments.  The judge again told Matus that he could apply for a hardship license.  When Matus told the judge that he did not know any attorneys, the judge suggested Tina Piette with whom the judge owned 2 investment real estate properties.  Matus met with and retained Piette the next day.

A week later, the judge granted Matus’s application for a hardship license so that he could drive to his wife’s medical appointments and to his appointments for alcohol evaluation and therapy.  The judge did not preside over any subsequent proceedings in the case.

At the discipline hearing, the judge testified that he did not disqualify himself from Matus’s application for a hardship license because he considered it to be “administrative.”  The judge acknowledged that it was improper to ride in the police car with Matus, to speak ex parte with him during the ride, and to recommend Piette as a lawyer.

The Commission concluded that, as a result of his ex parte communications with Matus during the car ride, the judge’s impartiality could reasonably be questioned when Matus filed a hardship license application — “the very subject they had discussed ex parte in the police car” – and that disqualification or, at least, disclosure of the conversation, was required “even if the application seemed routine or ministerial.”  Further, the Commission rejected the judge’s assertion that the application was an “administrative matter” because “granting such an application necessarily involves the exercise of judicial discretion.”  Finding that the judge showed poor judgment, the Commission stated:

In sum, respondent’s handling of the Matus case was inconsistent with numerous fundamental ethical principles.  Viewed objectively, the totality of his conduct — chatting with a defendant about his case during a ride in a police car, recommending that the defendant retain a lawyer with whom the judge had a business relationship, and granting the relief requested by the defendant even after respondent had indicated he could not handle the case — breached the appropriate boundaries between a judge and a litigant and thereby created “a very public appearance of impropriety” . . . , which adversely affects public confidence in the judiciary as a whole.

Based on an agreed statement of facts and joint recommendation, the New York Commission publicly censured a judge for taking a treatment court participant on an ex parte, out-of-court excursion in his personal car and speaking privately with him about personal issues.  In the Matter of Tarantino, Determination (New York State Commission on Judicial Conduct March 28, 2011).

The judge was presiding over J.’s participation in the treatment court; J. was 18 years old.  During a meeting at the courthouse with a treatment court case manager, J. asked to speak to the judge.  The judge met briefly with J. in his courtroom before the lunch recess.  The case manager was not present.

During the lunch recess, the judge took J., alone, for a ride in his personal automobile to a state park approximately 16 miles from the courthouse.  The ride lasted approximately 20 minutes.  At the park, the judge and J. walked to a public wildlife observation deck, where they remained for approximately 10 minutes.  En route to, at, and after they left the deck, the judge spoke with J. about his continuing substance abuse, his mother’s death, and his need for grief counseling.  The judge then drove J. back to the courthouse.

The judge stated, under penalty of perjury, that he and J. never had any relationship other than as a judge and litigant, and that there was no untoward behavior at the park or anywhere else, at any time.  J. provided no evidence to the contrary.  The judge admitted that he made a serious error in judgment resulting from what he believed were exigent circumstances created by J.’s 2 drug overdoses within a month’s time.   The judge acknowledged that he has no training as a social worker or as a medical or mental health professional.

The Commission concluded that the judge’s “behavior, no matter how well-intentioned, was inappropriate and showed extremely poor judgment . . . .”  It explained that “the unique dynamics and relative informality of Treatment Court” did not excuse his “conduct, which overstepped the appropriate boundaries between a judge and a defendant in pending proceedings.”

Even in Treatment Court, a judge is not a social worker or therapist, but must maintain the role of a neutral and detached arbiter who at all times remains “cloaked figuratively with his black robe of office devolving upon him standards of conduct more stringent than those acceptable for others.”  Respondent’s behavior showed a serious misunderstanding of the role of a judge.

Having served as a Family Court judge for more than two years at the time, respondent should have realized that this extra-judicial meeting with the defendant — a vulnerable young man who had recently been charged with violating an order of protection for overdosing on drugs — not only would compromise respondent’s impartiality at a time when he wielded considerable power over this defendant, but would create a potential for suspicion and misunderstanding. 

* * *

There are also cases involving inappropriate rides in other states,

Adopting the findings of fact, conclusions of law, and recommendation of the Board of Commissioners on Grievances and Discipline, based on stipulations, the Ohio Supreme Court publicly reprimanded a judge who had picked up a defendant at the police station and driven her home.  Office of Disciplinary Counsel v. Medley, 756 N.E.2d 104 (Ohio 2001).

After Tracy Grate was booked on a DUI charge, she contacted the judge by telephone.  Grate knew the judge because she had previously been a defendant in his court.  The judge picked up Grate at the police station and drove her home, but they did not discuss her case.

Shortly before Grate’s case was set for trial before the judge, Grate’s attorney and the city solicitor learned of the judge’s assistance to Grate and, believing that the judge would have to recuse, entered into plea negotiations.  Grate entered a guilty plea to reduced charges.  The judge accepted the plea agreement, sentenced Grate to 6 months in jail, suspended the jail sentence, and placed her on 5 years’ probation conditioned on attendance at a DUI school and completion of a GED program.

Stating that the fact that the judge and Grate did not discuss her case was immaterial, the Court concluded that the “sight or thought of a judge providing a ride home to a person who has just been detained for breaking the law surely gives the impression of bias on the judge’s part when it comes time to hear that case.  This act also gives an impression of impropriety. . . by making it appear that Grate would be subject to special treatment.”

The Mississippi Supreme Court suspended a judge for 90 days without pay and publicly reprimanded him for taking a criminal defendant for a ride in his car and reducing her fine at the ex parte request of a police officer.   Commission on Judicial Performance v. Boone, 60 So. 3d 172 (Mississippi 2011).

One morning, Assistant Police Chief Nolan Jones called the judge and requested his help with Christina Twaddle whom Jones was interested in cultivating as a confidential informant.  Later that morning, the judge presided over Twaddle’s trial on a charge of public drunkenness.  The judge found Twaddle guilty and imposed a $100 fine and $139 in costs.  The judge told Twaddle and her attorney that the sum must be paid no later than 5 p.m. that day.

Around noon, the judge saw Twaddle at a gasoline station and asked if she would ride with him to discuss payment of the fine.  Thinking she could work out payment arrangements, Twaddle agreed.  The judge drove Twaddle to a drugstore and asked that she meet him around 3 p.m. after he completed his afternoon docket.  They exchanged cell numbers, and the judge left.  According to phone records, the judge called Twaddle numerous times that afternoon to arrange the meeting.  Later that afternoon, the judge sua sponte reduced Twaddle’s fine by $100.

The Court stated:

Judge Boone’s actions exhibited a monumental lapse of sound judgment, because an undetermined number of Lincoln County citizens had the occasion to see one of their elected judges riding around town with a female litigant.  Certainly the citizenry of Brookhaven and Lincoln County, upon learning of the later fine reduction, at the very least, could infer that Twaddle had received favorable treatment from Judge Boone via the fine reduction as a result of this ex parte communication.

The Court took the “opportunity to remind all judges and law enforcement officials of the impropriety in having any ex parte communications with each other on the merits of pending litigation.”

The Commission had also found that, while they were in his vehicle, the judge inappropriately touched Twaddle and told her that he would “fix her fine” in exchange for sexual favors.  The judge denied those allegations.  Noting the “contradictory testimony” presented at the discipline hearing, the Court explained that it had been unable to reach a decision on whether the sexual allegations against the judge had been established by clear and convincing evidence.

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