Perception problem

Based on the judge’s consent, the Tennessee Board of Judicial Conduct publicly reprimanded a judge for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks,” or words to that effect, to a courtroom audience of criminal defendants, some of whom were African-American.  Re Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020).  The judge admitted making the statement in open court on July 16, 2020, referring to the Tennessee Supreme Court’s requirement that face coverings be worn in court.  The judge explained that the statement was spontaneous and intended to “soften any resistance by those present in the courtroom to the requirements of wearing a mask, as we have had negative feedback to this [Supreme Court] mandate.”  The judge acknowledged that he was wrong to make the statement, recognized the perception problem with the comment, said that he meant no disrespect to anyone, and regretted making it.

The Board stated that “participants in a legal proceeding who hear racially insensitive comments, such as the one involved here, may reasonably perceive that the judge is biased or prejudiced” and “may reasonably question whether they received impartial and unbiased treatment” even if, “as here, there is nothing to suggest bias or prejudice in any case.”  The Board also stated that “comments like the one at issue do not inspire” public confidence that “the judge will dispense justice respectfully and fairly.”  The Board said that the comment was not dignified or courteous and impugned a higher court even if the judge did not intend “to cast aspersions on any member” of the Court because those who heard his comment had no way of determining his intent “apart from the words used.  Once such comments are made, the damage is done.” 

Other recent examples of sanctions for expressions of bias or the appearance of bias, derogatory comments, and/or extra-judicial comments that cast doubt on the judge’s capacity to act impartially:

  • A judge who asked a female deputy district attorney, “What kind of Asian [are you]?”  Inquiry Concerning Laettner, Decision and order (California Commission on Judicial Performance November 6, 2019) (removal for this and other misconduct).
  • A judge who told an African-American defendant to stop “shucking and jiving.”  Inquiry Concerning Bennett, Decision and order (California Commission on Judicial Performance March 25, 2020) (censure for this and other misconduct). 
  • A judge who referred to Caucasian and African-American defendants as “crackers” and “homeboys.”  Disciplinary Counsel v. Burge, 134 N.E.3d 153 (Ohio 2019) (6-month suspension of former judge’s law license for this and other misconduct).
  • A judge who told a reporter, “The young black men – and it’s primarily young black men rather than young black women – charged with felony offenses, they’re not getting good advice from their parents.  Who do they get advice from?  Rag-tag organizations like Black Lives Matters, which tell you, ‘Resist police,’ which is the worst thing in the world you could tell a young black man . . . they teach contempt for the police, for the whole justice system.”  Public Warning of McSpadden (Texas State Commission on Judicial Conduct November 12, 2019).
  • A judge who, when complaining to law enforcement about trucks associated with a solar farm project that was next to property owned by her family, said, “None of them had driver[‘s] licenses, since they are Mexican.”  Public Warning of Plaster and Order of Additional Education (Texas State Commission on Judicial Conduct August 12, 2020).

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