More Facebook fails

Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) during his campaign, on his personal Facebook page, posting memes that propounded conspiracy theories, making disrespectful and undignified comments about laws he would be sworn to uphold as a sitting judge, and endorsing a candidate for the town council; and (2) after becoming a judge, on his personal Facebook page, posting comments on the release of a defendant he had arraigned, linking to articles critical of bail decisions in other cases, and commenting on one of those cases.  In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020).  Screenshots of his posts are attached to the agreed statement of facts.

The judge served as a justice of the Brunswick Town Court from January 1, 2000 to December 31, 2015.  In March 2019, the judge announced his candidacy for the same office, securing the Republican Party nomination in April, winning the election in November 2019 election, and taking office on January 1, 2020.

The judge maintained a Facebook account under the name “Bob Schmidt.”  The biographical information on the Facebook page listed one of his occupations as “Judge – March 15, 1999 to Present – Brunswick, New York” and “Local Criminal Court Judge.”  The public could view all of the posts on his page.

(1) On various dates in August 2019, the judge posted to his Facebook page:

  • A meme that implied that former President Bill Clinton had killed Jeffrey Epstein.
  • A meme depicting a witch trial hanging that read, “JUST A REMINDER…SALEM, MASSACHUSETTS HAD ‘RED FLAG’ LAWS, TOO.”
  • A meme that displayed a photograph of a Nazi book burning with the text, “BOOK BURNINGS DON’T JUST LOOK LIKE THIS,” above a second image showing a social media platform warning that posts in violation of the platforms’ guidelines will be removed, with the text, “THEY ALSO LOOK LIKE THIS.”

In addition, the judge posted a link to the Facebook page for the campaign of Brunswick Town Council candidate Mark Cipperly and “liked” a comment to the post by another Facebook user that read, “Cip is a good man.”

(2) The judge was elected as town justice in the November 2019 election and took office on January 1, 2020.

On January 4, 2020, the judge posted to his Facebook page a statement in which he announced he had performed the first nighttime arraignment of his new judicial term and wrote, “Feel like a judge again.”  In a comment on his post, another Facebook user asked if the defendant had been released before the judge got “back in bed,” to which the judge replied, “of course.  This is NY 2020.”

On January 30, the judge posted to his Facebook page a link to a New York Post article entitled, “Fatal DWI suspect bragged about bail reform:  ‘I’ll be out tomorrow’” about a pending case in which the defendant had been indicted for vehicular manslaughter and other charges.  The judge wrote above the post, “Sign of the time,” and another Facebook user commented, “I predict vigilante mentality will soon return.”  

On February 2, the judge posted to his Facebook page a link to a New York Post article entitled, “Suspect in brutal mugging of elderly woman caught on video released under new bail law” about a pending case in which the defendant had been charged with robbery.  Another Facebook user commented on the judge’s post, “Is this true?, [sic] disgusting!”

The judge removed the Facebook posts after receiving the Commission’s letter regarding their propriety in April 2020.  To the Commission, the judge wrote, “I cringe as I review the [posts] presented and have no explanation as to why I felt that it would be appropriate to put them on my Facebook page as a candidate for judicial office.”  The judge acknowledged that, “though the posts were not reflective of him as a town justice, his conduct was nevertheless beneath anyone who is privileged to wear a robe and is trusted with representing our judicial system to the public.”  The judge committed “to being more circumspect in his use of social media in the future . . . .”

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The Texas State Commission on Judicial Conduct publicly warned a judge for disparaging another judge’s bond determination on Facebook and referring to the other judge’s family in doing so; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Crow and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).

In July 2019, a post on the Facebook page “Inside Fort Bend County Courts” criticized Judge Robert Johnson’s decision to release on bond a defendant charged with capital murder.  The post described the defendant as a “violent, repeat offender” and indicated that, while out on bond, the defendant was arrested for “pistol whipping an innocent woman, car-jacking her, and leading [police] officers on a high speed chase endangering police officers and the community.”  In response, Judge Crow posted:  “This makes me so sad.  I wonder how Judge Johnson would feel if the woman that was pistol whipped was his daughter, wife, or sister?  He sounds like an activist judge trying to prove a point.  That doesn’t help the woman who was hurt.”

During her appearance before the Commission, the judge said that she had intended her post to be a comment on the need for judges to consider the totality of circumstances before issuing a bond, including the defendant’s criminal history and the risk the defendant poses to society.  The judge acknowledged that she did not have any personal knowledge regarding what Judge Johnson considered when making his ruling.  In her written responses to the Commission, the judge acknowledged that on reflection, “it would have been a more prudent choice to enhance and maintain confidences in our legal system by expressing my sentiment using different words.”

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The Texas Commission publicly warned a judge for her Facebook activities in support of a friend’s campaign for city council and a court clerk’s acceptance of a donation to her campaign at the courthouse; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.   Public Warning of Woodard and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).

The judge is personal friends with Fort Worth City Councilwoman Kelly Allen Gray.  During Gray’s 2019 re-election campaign, the judge shared a post and photograph of Gray on her Facebook page and posted “#teamkelly!” with the photograph, which was a hashtag used by Gray’s supporters.  On election day, the judge “liked” a Facebook post that tagged Gray’s Facebook page, included a photograph of someone with Gray’s campaign signs, and stated “re-elect Kelly Allen Gray!  Fort Worth City Council, -District 8.  #teamkelly.”

During her appearance before the Commission, the judge stated that she had not intended to endorse Gray but to show her support as a friend during a difficult time for Gray unrelated to Gray’s election campaign.  The judge recognized that people could have thought the post was an endorsement.

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A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

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