Setting the tone

A recent judicial discipline case illustrated the connection between judicial demeanor and public confidence in judicial decisions.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge “for an intermittent pattern of intolerant and intemperate behavior.”  In re Wilson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020).  The judge also agreed to participate in at least 2 hours of ethics training and to participate in behavioral coaching with an emphasis on courtroom demeanor by a qualified behavioral modification professional until the “professional has certified, in writing, that such counseling has accomplished positive changes and that in his/her opinion, the Respondent has the competency to maintain these changes in the future.”

The Commission initiated a complaint after the court of appeals reversed a sentence imposed by the judge and remanded for re-sentencing before a different judge.  The reversal was based on the judge’s use of profanity and comments that appeared to manifest bias against a defendant terminated from drug court.  In that case, the judge, after telling the defendant he could, “Stop with the shoulder bulls*** now,” said:  “So I got a guy standing in front of me, who won’t tell me that he’s got a dirty UA for alcohol, finally admits that he drank and then tells me he needs anger management.  I think you’re a f***ing addict and maybe you need treatment.  I don’t think it’s got nothing to do with anger management.  You think I give you anger management and that’s gonna get you clean and sober?  What the hell are you talking about?  Have a seat, over here…  Percocet and alcohol…  I’m gonna relax a little bit and then figure out what to do with him.”  The judge also said:  “You, sir, are just a criminal, that’s all you are, you’re just a criminal.  Do you have issues?  Yep, you do.  Are you going to deal with them?  No, you’re not….  You, the odds say, are going to die in prison.”

The judge’s disrespectful language to a defendant led to reversal of a second sentence and remand to a different judge.  In that decision, the court of appeals rejected the prosecution’s argument that the judge had simply been having “a serious conversation” with the defendant about addiction and the possibility of change and explained that slurs and epithets were not necessary for a serious conversation and that the judge’s “harsh and inappropriate language defeated the purpose.” 

The Commission identified additional hearings in other cases that illustrated the judge’s intemperate behavior.

During one hearing, the judge told an attorney who was trying to make a record:  “You don’t have the right to make a record” and “I am not going to proceed in this case with this counsel in front of me.  The matter will be stricken, and re-note it in front of another judge.  You may take him,” the latter comment directed to the jailer about the in-custody defendant.

At another sentencing hearing, the judge denied the prosecutor’s request to have the victim present by telephone, saying in an elevated and agitated voice while pointing directly at the prosecutor, “Neither you nor your office have a right to tell this Court what it’s going to do in its own courtroom.”

The Commission had publicly admonished the judge in 2018, based on a stipulation and agreement, for, during sentencing in a domestic violence case, addressing the defendant in a confrontational and angry tone, repeatedly calling the defendant “an animal,” and, near the conclusion of the hearing, refusing to let the defendant speak.

In the current discipline case, the Commission noted that, although the judge “is generally calm and professional on the bench, at times he can be impatient or volatile,” interrupting litigants and attorneys, addressing them “in an unduly confrontational, condescending, and harsh manner,” using foul language, profanity, and language that manifested bias or prejudice, and expressing “anger or emotion.”  It noted several negative effects of such conduct:

  • It “may impair the right of individuals to be fairly heard by intimidating or discouraging them from fully presenting their positions in court.”
  • It may discourage “others from wanting to appear in his courtroom for fear of how they might be treated.”
  • It affected his ability to execute his duties and significantly impacted “his efficacy as a judicial officer,” noting his recusal from 1 case and the 2 cases in which he was reversed.

The Commission emphasized:

The judge sets the tone for the courtroom.  Discourteous and disrespectful behavior by a judge in the courtroom erodes the public’s confidence in the quality of justice administered by that judge, not only for the direct targets of such behavior, but also for all those who witness it.  The public is more likely to respect and have confidence in the integrity and fairness of a judge’s decision if the judge is outwardly respectful, patient and dignified.  Because of the power disparity between a judge and others in the courtroom, berating a litigant or an attorney is not a proper exercise of judicial power.

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