Casting aspersions

In a recent advisory opinion, the Indiana Judicial Qualifications Commission emphasized that, although judicial candidates may criticize their campaign opponents or republish negative reports, the candidates must be “scrupulously fair and accurate” if they engage in that tactic.  Indiana Advisory Opinion 1-2022.

The opinion directed judicial candidates to ensure that statements expressing subjective views about their opponent’s experience and qualifications were truthful and not misleading.  It explained:

  • A candidate should “corroborate” the information they rely on when criticizing an opponent.
  • A candidate may state that they are “’more qualified’ or ‘more prepared’ than an opponent so long as that opinion is supported by the candidate’s actual experiences and professional background in comparison to their opponent’s.”
  • A candidate may comment on any public disciplinary history their opponent may have, but only in a dignified manner appropriate to the judicial office.
  • A candidate “should avoid attributing a position or policy perspective to an opponent (such as calling an opponent ‘liberal’ or ‘soft on crime’) based solely on the handling of a particular type of case.” 

The opinion also warned against “drawing misleading conclusions” from “incomplete negative statistical or historic data” to, for example, blame an opponent for a rise in crime.  It directed judicial candidates to consider:

  • Whether corroborating evidence is sufficient to establish a link to “an opponent’s actions or inactions,”
  • Whether contrary evidence refutes the supposed connection, and
  • Whether there are “alternative explanations.”

Further, the opinion stated that, in statements about an opponent’s background or qualifications, judicial candidates:

  • Should not engage in “speculation, hyperbole, and innuendo,”
  • Should not omit “salient facts,” and
  • “Should consider the ethical perils of:”
    • “Using emotionally-charged buzzwords that carry misleading connotations;”
    • “Casting negative aspersions on certain roles in the legal system as purported evidence of unfitness;” or
    • “Mischaracterizing or overstating the role and powers of the judiciary.”

Those “ethical perils” are illustrated by the recent public admonishment of a Louisiana judge for a campaign ad that “inappropriately undermine[d] the vital role” of criminal defense attomeys and could “distort the public’s perception regarding the proper role of judges.”  Public Admonishment of Marchman (Louisiana Judiciary Commission April 26, 2022).

In 2018, Judge Marchman, a district court judge, ran for a seat on the 2nd Circuit Court of Appeals against the incumbent, Judge Jimbo Stephens.

In one of the Judge Marchman’s video campaign advertisements posted on Facebook, a narrator stated:

When you vote, the right experience is what matters.  While Sharon Marchman has spent her thirty-three year career protecting you, her opponent Jimbo Stephens’ law firm, Stephens and Stephens, was getting paid to defend Sonny James Caston, convicted of murdering a deputy sheriff.  

The Louisiana Judiciary Commission acknowledged that judicial candidates may contrast their experience with that of their opponents but concluded that this comparison was inappropriate because it “cast[] aspersions on Judge Stephens’ and his father’s fulfillment of fundamental and appropriate functions in our legal system.”  The admonishment stated that, although the ad’s reference to Judge Stephens’ law firm “getting paid to defend” a person convicted of murdering a law enforcement officer “may not contain any false statements,” its omission of the circumstances – Judge Stephens’ father/law partner had been appointed by a court to represent an indigent defendant 30 years ago – misled the public.  Writing to the judge, the Commission explained:

Even ignoring the fact that Judge Stephens’ father was providing an important public service by representing a defendant who could not afford an attorney, as a lawyer and a judge for many years, you are fully aware that all defendants have a fundamental right to counsel, regardless of the crime with which they are charged.  Nonetheless, you chose to air an ad that inappropriately undermines the vital role criminal defense attomeys play in this state’s adversarial system of justice and the basic right of all accused persons to zealous representation.

The ad has also stated:

[Judge Stephens] reversed a jury’s conviction of a burglar with a twelve-page criminal history.  When asked about a crime, Judge Jimbo Stephens stated, “It’s illegal to get caught.”  Vote for the right experience – Judge Sharon Marchman.

The admonishment noted that the ad failed to explain that Judge Stephens had been part of a unanimous panel of judges, that the defendant had been improperly tried by a 6-person jury, rather than the constitutionally and statutorily mandated 12-person jury, and that the 12-page criminal history had not been part of the record on appeal but had been developed by Judge Marchman’s campaign.  Admonishing the judge, the Commission stated:

As an experienced judge, you know that judges are duty-bound to attempt to apply the law faithfully and impartially, regardless of whether a party is particularly sympathetic or unsympathetic, and that any judge, including you, would have been required to reach the same conclusion as Judge Stephens in the . . . case.  Moreover, you also know that a defendant’s criminal record is admissible in a criminal trial only under certain limited circumstances and knew that Mr. Johnston’s criminal history did not and could not play any role in the Second Circuit’s decision in the matter.  Accordingly, your choice to refer to this criminal history could have served no purpose other than to make it appear that Judge Stephens’ decision in this case, which relies strictly on controlling law, was somehow irresponsible or contrary to justice.

The Commission emphasized to the judge:

Your use of this decision as an example of how Judge Stephens does not have the “right experience” to be elected as an appellate judge thus undermines foundational principles of our legal system, has the distinct potential to distort the public’s perception regarding the proper role of judges, and erodes the independence of the judiciary and the public’s confidence in it.  Judges have a duty to be more careful in their express or implied criticism of judicial decisions so as to avoid such potential consequences.

See also Inquiry Concerning Santino, 257 So. 3d 25 (Florida 2018) (removal of judge for campaign ads that accused her opponent of “making a lot of money trying to free Palm Beach County’s worst criminals.  Now he’s running for judge!”).

The Louisiana admonishment also addressed a second ad that stated:  “You can support President Trump and the Republican Party by voting for me, or you can support Bernie Sanders, Jimbo Stephens, and their liberal agenda.”  The Commission found that that ad violated the prohibitions on publicly endorsing another candidate and making speeches on behalf of a political organization or a candidate for public office.

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