More Facebook fails

The Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) providing a “legal tip of the day” on Facebook and (2) having his law license suspended twice for failing to comply with continuing legal education requirements.  Webb (Tennessee Board of Judicial Conduct November 5, 2021).

In 1 “legal tip of the day,” the judge advised that “when stealing stealth is key.  You want to blend in with your surroundings.”  As an example, he explained, “You and your 5’10 sister walk in [Walmart] with green hair and green toenails and green flip flops that smack the back of your feet with every step you make and you don’t blend in and you are caught with three steaks shoved into your pants.  You forgot to be stealth.”  In another Facebook post, the judge stated, “remember people, the goal of criminal and bad behavior is to get away with it.”  As an example, he described 2 women arguing outside the courthouse when one “scream[s] out ‘b*tc* what’s hood!’”  The judge added that “screaming and cursing and fighting in front of police officers 10 out of 10 times is detrimental to ones [sic] freedom.”  In another post, the judge wrote that it is “downright damn humiliating when [police are] pulling crack from your crack!  Find someplace else to hide your stash.”

The judge explained that his posts were “designed to get a laugh and to make people think about life choices.”  However, the Board explained that, “regardless of motivation, it is neither dignified nor appropriate for a judge, especially one who hears criminal cases, to be providing legal advice such as ‘when stealing stealth is key’ or urging the public to be mindful that ‘the goal of criminal and bad behavior is to get away with it.’”  Noting that the Tennessee Supreme Court has stated that “’lawyers who choose to post on social media must realize they are handling live ammunition,’” the Board concluded that the judge’s social media posts did not reflect the “caution and reflection” required for judges “choosing to participate in inherently public platforms . . . .”

When the Chattanooga Times Free Press published an article about the second suspension of his law license, the judge posted on Facebook:  “Well damn!  Give me a black hat and a black horse and call me a desperado, I feel like I was in [sic] just busted.”

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Based on the final report of the Board of Professional Conduct, which was based on stipulations, the Ohio Supreme Court suspended a judge for 6 months for communicating inappropriately with a court reporter on Facebook and by text and phone calls, with the entire suspension stayed conditioned on the judge receiving 8 hours of training on sexual harassment and refraining from further misconduct.  Disciplinary Counsel v. Berry, Order (Ohio Supreme Court November 3, 2021).

In October 2019, after the judge posted pictures of the courthouse’s 100-year celebration to his Facebook page, Jane Doe liked some of the pictures.  In a private Facebook message, the judge thanked Doe for “liking” the pictures and asked how she was associated with the courthouse.  Doe replied that she was a court reporter assigned to a different judge’s courtroom.  The judge encouraged her to “stop by [his] Chambers in Room 226 [because he] look[s] forward to meeting [her]!!”  The judge sent Jane Doe another private message that said, “Have a Great Weekend.  You’re ‘Lurking’ and didn’t come down to my Chambers to visit.”  After a lengthy conversation on Facebook, the judge asked Doe for her cell phone number.  The parties stipulated that, if called to testify, Doe would state that she felt she could not refuse to give her personal number to him because he was a judge.

One Saturday, the judge called Doe and talked about his divorce.  If called to testify, Doe would testify that the judge sounded intoxicated during the call and that he used profanity.  The judge denies that he was intoxicated and has no specific recollection regarding whether he used profanity.  During that call, the judge asked Doe out to lunch, but she declined.  On October 30, at 11:24 a.m., the judge sent Doe a private Facebook message saying, “Hey come down to visit today or soon.  I may have an ‘Offer you can’t Refuse!!’”

On November 3, the judge asked Doe out for lunch or drinks after work by Facebook.

Happy Sunday!!  Thank God We don’t have to Watch & Witness our Horrid Bengals today!!  A true Blessing.  FYI, I’m on “Staycation” all this coming week, and Girl do I need it.  The irony of “Staycation” is that you run errands and spend more $$ while off work than while We do while at work.  So, I’ll do all the things, couldn’t do during a normal work week, and I’d like to invite you to accompany me for lunch or for drinks after work.  I Hope I’m not being too forward or pushy in inviting you to do something.  So, simply le me know if you’d like to meet for lunch or drinks this coming week or otherwise.  I’m a “Big boy” so I know how to accept and respect the word, “NO”.  So please be Honest in your response.  Again, I hope you’re not offended because this is not my intent whatsoever.  So, kindly RSVP either way.  TY!!

Doe did not respond.

The Facebook communications between the judge and Doe became increasingly one-sided.  After asking her out, the judge sent her 72 Facebook messages; she replied to only 15.  Most of his message were links to videos, photographs, or quotes on the internet, not personal messages.  Many of the links were to overtly political and partisan content, for example:

  • An edited video from the Late Show with Stephen Colbert showing the crowd at a baseball game singing for the removal of President Donald Trump.
  • An edited video in which Trump begins to smoke and then catches on fire during a prayer session.
  • An image of Trump saying “APPRENHEND THAT CAT!” with an image of a cat responding, “YOU AIN’T GRABBING THIS P***Y, YOU TANGERINE LOOKING MF!”
  • A parody video entitled “The Donald Trump Prayer,” calling for the divine removal of Trump.
  • A video from Trae Crowder, the “Liberal Redneck” in which he graphically and profanely insults Trump supporters.

The judge also sent Doe messages with links to offensive and sexually explicit videos, for example:

  • “How to Build a Resume for a Hoe’” featuring comedian Tiffany Haddish joking about helping female prostitutes build their resume; the video contains profanity and crude, sexually explicit language.
  • “How to End a First Date,” a viral YouTube video with crude, sexually explicit language in which a woman is negotiating sexual favors in exchange for gifts with a man who is seeking commitment-free sex from her, whom he describes as dumb and boring.

Doe did not respond to the judge’s messages but did bring them to the attention of her boss and a co-worker, who informed court administration.  After an investigation, court administration referred the matter to Disciplinary Counsel.

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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 Reporter.  Part 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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