“Understandable, though ill-advised”

2 more judges have been publicly sanctioned for their conduct related to the COVID-19 pandemic, bringing the total to 9.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for making comments criticizing the prosecution of a case that he thought could only be heard by the court employees in the courtroom but that were being broadcast through the court’s YouTube channel. In re Antush, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 19, 2021).

During the Covid-19 pandemic, the Spokane Municipal Court, like many courts in Washington, provided live stream coverage of court proceedings on YouTube to allow the public to observe proceedings. The live stream typically ended at the conclusion of the court proceedings.

On November 12, 2020, the judge presided over a criminal jury trial on charges of disorderly conduct and failure to disperse. After the prosecution and defense had rested their cases, the judge dismissed the jury for the day, planning to have closing arguments, jury instructions, and deliberations the next morning. Shortly after everyone but the judge and 2 clerks had left the courtroom, the judge stated:

It’s frustrating because I don’t think this ever should have been tried. It’s a simple misdemeanor. The guy has no record. Best case scenario, he got carried away. I mean this is the best possible case scenario is that he got carried away in the moment. Do you really want to f*** with someone’s life like that? Apparently. Worst case scenario … The thing is, like I didn’t hear anybody say they saw the guy throw jack. Did you hear that … [recording stops].

Although the judge reasonably believed he could only be heard by the 2 court employees, the courtroom’s audio recording was still activated and being broadcast to the public through the court’s live stream YouTube channel. The prosecution learned of the judge’s comments that evening via the broadcast.

The following morning, the city moved for a mistrial based on the judge’s comments. After hearing argument from the parties and reviewing his comments, the judge “agreed with the City that, while judges are human and have opinions, it was wrong for him to verbalize them in a way that undermined public confidence in the fairness and impartiality of the rulings he had made in the case before him.” He granted the motion for a mistrial, apologized to the parties, and expressed his regret for the waste of time and resources.

In mitigation, the Commission noted that this was an isolated incident, the judge has had no prior judicial discipline history, he had been a judge for less than 3 years when he made the comment, those who know him professionally describe him as very competent, conscientious, and compassionate, and, “importantly, his response to this matter, both at the time it was first brought to his attention, and in this disciplinary proceeding, has been exemplary.” The agreement also stated:

Respondent’s actions were careless, but there is no basis to believe he flagrantly or intentionally violated his oath of office. At the time he made the comments at issue, Respondent was unaware that anyone other than court staff could hear the comments. There are many pressures upon a trial judge, and it is understandable, though ill-advised, for a judge to vent to trusted court associates even in private. Respondent credibly stated that he did not intend to impair the case before him.

On the other hand, Respondent revealed his strong opinion about the merits of a case about to go to a jury and that opinion became public (although Respondent did not intend those comments to be public). In this context, presiding over a pending jury trial, Respondent’s comments caused actual injury by affecting the outcome of a criminal case and consequently damaged the perceived integrity of the justice system to anyone who may have heard the comments.

The Commission noted that the admonishment “may help to alert other judges to the risks of unguarded comments damaging public confidence in the impartiality, integrity and independence of the judiciary, at a time when courts are using more varied technological broadcast means than ever before in conducting the courts’ business.”

Statements inadvertently broadcast live via YouTube by a second judge are also the basis for a statement of charges filed by the Washington Commission. The second judge’s statements were about the fatal shooting of a Black man by local law enforcement and were made after the end of unrelated court proceedings during a conversation between the judge and a fellow judicial officer. The Commission alleges that the statements “displayed overt racial bias, indicated a lack of impartiality, and implied that Respondent has a personal channel of communication with the Sheriff’s Department regarding pending and impending cases.” The charges note that “the Commission received dozens of complaints about this incident,” including a self-report. The judge retired effective June 30, 2021.

Accepting a stipulation agreement and consent to discipline, the New Mexico Supreme Court suspended a judge for 30 days without pay for, in addition to other misconduct, failing to wear a protective face covering at all times while on court premises as required by a state supreme court order and asking a clerk if they minded if he did not wear a mask; and after the court began conducting telephonic hearings due to the pandemic, issuing bench warrants when 11 defendants failed to call the court on their appearance date without determining if the defendants had been properly summonsed. In the Matter of Guthrie, Order (New Mexico Supreme Court October 29, 2021).

The judge failed to wear a protective face covering at all times while on court premises and placed a court clerk in a difficult position when he asked the clerk if they minded if he did not wear a mask. The magistrate failed to follow the New Mexico Supreme Court’s order on the safe and effective administration of the judiciary during the COVID-19 public health emergency and put the health and safety of court staff at risk.

Due to the COVID-19 pandemic, the county magistrate court began conducting telephonic hearings, but the magistrate issued summonses for defendants to appear in person and/or did not include contact information for the court on the summonses. When 11 defendants failed to call the court on their appearance date, the magistrate issued bench warrants and assessed $100 bench warrant fees without determining if the defendants had been properly summonsed.

7 other judges have previously been publicly sanctioned for conduct related to the COVID-19 pandemic. Quickle, Order (Arizona Commission on Judicial Conduct June 11, 2021) () (public reprimand for speaking sharply to court staff when disconnected from a Zoom hearing and yelling at court staff when lawyers and parties were allowed into the courtroom prior to the scheduled time for a case); Goodman, Order (Arizona Commission on Judicial Conduct May 13, 2021) (public reprimand for repeatedly failing to wear a face covering when interacting with the public and staff in court facilities as required by administrative orders issued by the Arizona Supreme Court and the Maricopa County Superior Court in response to the COVID-19 pandemic, failing to require individuals in his courtroom to abide by administrative orders regarding the use of face coverings, and appearing “to publicly denigrate those orders”); In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order was in effect); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); In the Matter of Rivers, 862 S.E.2d 449 (South Carolina 2021) (6-month suspension for disruptive behavior during a meeting about the court’s COVID-19 safety plan, his confrontations with another magistrate and the Chief Magistrate after the meeting, and his statement to a clerk about the Chief Magistrate’s complaint to Disciplinary Counsel); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end); In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021) (reprimand for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom).

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