“Alarming insensitivity” and “heightened sensibilities”

The New Jersey Supreme Court recently sanctioned 2 judges for comments to litigants that had “the clear potential to suggest” bias against women in one case and had been reasonably interpreted as sexual innuendo in the other.

Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge without pay for 1 month for making sexist and misogynistic comments that reflected his religious beliefs to a male defendant during a video hearing on domestic violence charges.  In the Matter of Brister, Order (New Jersey Supreme Court September 16, 2021).  The judge admitted the factual allegations and conceded that his language was injudicious and violated the code of judicial conduct. 

On February 21, 2019, the judge presided over a matter in which an incarcerated defendant with multiple domestic violence charges appeared over a video conference link.  During the proceeding, the judge stated:

I’m going to tell you like I tell a lot of people with this same charge because all of these charges are the same.  We as men – and I can speak to you as man, because I’m a man, as well, we get frustrated with the women human beings because we try to straightened out a creation because they was created with a curve, but we as men, we think we are above creation, and we can straighten it out.  No matter how much you try, or how you try to straighten out that curve, you can never do it.  We get frustrated, and then — but in our frustration you can’t come at them like you’re Mike Tyson, and they’re in the ring like they’re Leon Spinks.  You can’t do it.  You can’t punch, you can’t hit.  At best, you treat as if you’re holding a feather, just to let them know you’re the man, and you’re in control.  But on each one of these five complaints it said you went at ‘em like Mike Tyson.

In response to the Committee’s question “about what exactly he meant,” the judge “described his language as a ‘poor choice of words’ and admitted that his comments stemmed from his personal religious belief concerning ‘creation from a higher power,’” and referenced “the biblical origin story in which Eve was created from the rib of Adam.”

Noting the judge’s claim that he had been trying to provide guidance to the defendant about “how to more appropriately behave when experiencing feelings of frustration,” the Committee explained that, regardless of his intent, the judge’s statements were disparaging toward women, “sexist and misogynistic,” and “had the clear potential to suggest” that the judge was biased against women.  The Committee also found that the “clear religious implications of Respondent’s remarks are equally inappropriate and wholly misplaced in a court of law” and that his “integration of his personal religious beliefs into his judicial conduct” also violated the code of judicial conduct.

In aggravation, the Committee noted that the judge had received a private letter of censure addressing similar concerns about “the appearance of a bias in favor of a litigant of Respondent’s same faith.”  Although he had not received that letter until shortly after he made the current “problematic comments,” the judge had already received the Committee’s request to address the earlier matter.  The Committee found that, in both matters, the judge “demonstrated an alarming insensitivity . . . to the perception of bias . . . .”

In mitigation, the Committee noted the judge’s remorse and attempts at apology and found that his comments, “while unacceptable . . . , were made in good faith to dissuade the defendant from engaging in physical acts of violence.”  However, the Committee concluded that the mitigating factors were outweighed by the judge’s repeated “instances of poor demeanor and the appearance of bias” and that a 1-month suspension was justified.

* * *
Adopting the findings and recommendation of the Committee, the New Jersey Court publicly reprimanded a former judge for making a remark to a female defendant that was reasonably interpreted as sexual innuendo.  In the Matter of Rodriguez, Order (New Jersey Supreme Court October 15, 2021).

During the first appearance of a female defendant charged with multiple drug offenses, after the defendant pled not guilty, the following exchange took place:

Assistant prosecutor:  Do we have to put bail on the record?
Public defender:  Oh, it’s an ROR bail.
Judge:  Your bail is ROR — you’re released on your own recognizance.
Defendant:  Okay.
Judge:  But you do have bail.  You have monetary bail.  You’re released on your own recognizance.
Defendant:  Okay.
Judge:  Okay?
Defendant:  Thank you.
Judge:  Do you understand?  You seem a little —
Defendant:  I’m like a little — ‘cause —
Assistant prosecutor:  Well, it’s confusing –
Defendant:  — I’m like, wait –
Assistant prosecutor:  — saying money bail or saying she doesn’t have to post anything.
Judge:  Yeah.  No.
Defendant:  Is it – do I owe you anything or –
Judge:  Not that you can do in front of all these people, no.

The assistant prosecutor, Lauren Casale, and a court services supervisor, Audra McEvoy discussed the incident and brought it to the attention of court administration.

The judge “consistently denied any impropriety or the appearance of an impropriety in his exchange with the defendant” and maintained that Casale and McEvoy “misunderstood his remark to the defendant as a sexual innuendo.”  The judge argued that he had been simply “’reiterating [to the defendant] that she need not make a payment to secure bail.’”  When testifying at the hearing, the judge “attempted to contextualize the social climate at the time of these events with reference to the ‘Me Too movement, Harvey Weinstein …, [and] Matt Lauer . . . .’”  The Committee described his testimony:

Cognizant that “people’s sensibilities as to sexual innuendos and saying things in the workplace were somewhat heightened,” Respondent maintained that his intent in making the subject remark was innocuous, i.e. to disabuse the defendant of any notion that she was required to post bail before leaving court that day. . . .  The offense expressed by AP Casale and CSS McEvoy, Respondent argued, was unreasonable and engendered by “their sensibilities, . . . their gender sexuality, . . . [and] their interactions with different types of people. . . .”

The Committee also noted that, although he denied it, there was evidence that the judge’s comment “may have been an attempt at humor,” noting that he had earlier in the proceeding joked about the defendant’s last name and that 4 of his character letters described his use of humor.  1 letter stated the judge used “quips” in his courtroom, and another stated that proceedings in his court often “took on a somewhat informal air.”

The Committee found that the judge’s statement was inappropriate, rejecting his defense as “unpersuasive.”  It explained:

The subject statement, on its face, suggests to its intended recipient that there was something she could do for Respondent in private, outside of the presence of those in the courtroom and unrelated to bail, that would satisfy her obligations in respect of the criminal charge.  Given the defendant’s ROR release, we find Respondent’s explanation incongruous and the witnesses’ interpretation of his remark as a sexual innuendo and their subsequent offense reasonable.  Regardless of his intent, Respondent’s statement had the clear potential to suggest to the defendant, as it did to AP Casale and CSS McEvoy, that she could avoid the consequence of her criminal charge if she were to do for Respondent, in private, something of a sexual nature.

Whether Respondent intended his words as a sexually suggestive remark, an attempt at humor, or something else, while Respondent knew or should have known that his choice of words was inappropriate because of the negative inferences which reasonably could, and, in this case, were drawn from the manner in which he phrased his response to the defendant’s inquiry.  Such remarks have no place in our judicial system and must be assiduously avoided by all members of the Judiciary, particularly its jurists.

Respondent’s introduction of sexual innuendo into a courtroom proceeding impugned the integrity of the Judiciary and the judicial process, sullied the dignity of those seeking redress in the court, and tainted the solemnity of the courtroom proceedings . . . .

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