Monthly Archives: June 2024

Silence, “a pack of wolves,” and police pursuits

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In 2 recent cases, judges were sanctioned for their comments about violence and the police, in addition to other misconduct.

Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) just before the arraignment of a defendant on charges in connection with the shooting of 2 police officers, asking everyone in the courtroom to join him in a moment of silence for victims of violence; (2) participating in a demonstration against violence and making televised comments sympathetic to victims of violence; and (3) posting a video on his personal website and Facebook page that provided legal advice about traffic stops and referred to the police as a “pack of wolves.”  In the Matter of White, Determination (New York State Commission on Judicial Conduct May 13, 2024).

(1) On July 23, 2022, just over a week after he had been appointed, the judge arraigned a defendant in connection with the shooting of 2 Rochester Police Department officers.  Prior to the arraignment, over defense counsel’s objection, the judge granted the media’s requests to videotape and photograph the proceeding for public distribution and viewing.  The courtroom was filled with more than 100 uniformed police officers.

Just before the defendant was brought into the courtroom, the judge made the following comments from the bench:

Good morning.  Actually, it is a difficult morning . . .  In the five days that I have been on the bench, this is probably the third occasion where I have felt [it] necessary to ask everyone to join me in a moment of silence . . .  I’ve seen too many mothers and fathers, sons and daughters here grieving . . .  So I ask you all to take [a] moment to think of those left to deal with the tragedy of this type of loss.

His comments were published by the media.

(2) On September 28, 2022, two defendants were arrested shortly after a 3-year-old boy was struck by a stray bullet.  On September 29, a judge other than Judge White arraigned one of the defendants in Rochester City Court on felony assault and weapons charges, as well as on a misdemeanor charge of endangering the welfare of a child.

That same day, the judge participated in an anti-violence rally held near the site of the shooting.  The judge spoke to media covering the demonstration, on and off camera, and was identified by name and title in video, online, and print news coverage of the event.  According to public reports, the judge said during the demonstration that “the names of the victims have changed, but this problem has not,” among other things.

In the disciplinary proceedings, the judge acknowledged that his comments “in the context of the shooting of police officers, in the midst of the arraignment of a defendant whose innocence was presumed and whose guilt had not been established” and “his conduct at a public demonstration, occurring as it did in reaction to a shooting, and shortly after the arraignment of a defendant whose innocence was presumed and whose guilt had not been established, failed to avoid impropriety and the appearance of partiality.”

(3) Years before becoming a judge, the judge created a personal website and personal Facebook account.  After he became a judge, he identified himself on his Facebook page as a Rochester City Court judge and posted photographs of himself in his judicial robe and information related to his judicial appointment and election; on the cover page of his personal website, he posted a photograph of himself beside his judicial nameplate and wearing his judicial robe at his Rochester City Court bench. 

Prior to becoming a judge, the judge wrote, produced, and narrated a series of videos that he called, “The Legal Brief with Van White,” “designed to inform urban residents of their legal rights.”  The videos were accessible to the public before and after he became a judge on his personal website and Facebook account.

One approximately 4-minute “Legal Brief” video entitled “Deadly Encounters” provided information and commentary about cases, the law, and police weapons and advised individuals on how to interact with the police if stopped in their vehicles.  The video depicted and identified “PR-24s” (standard-issue police batons) as “the modern-day equivalent of a billy club” and included images of aggressive, hostile, and violent police behavior, including a video of Los Angeles police officers beating Rodney King in 1991 and a photograph of King’s badly beaten face.  In the video, the judge stated, “you are always going to be on the losing end if it’s a battle between you and a pack of wolves with PR-24s.”

After he became a judge, the website included a statement that said:

Now that Van White is a judge, he can no longer practice law or offer legal advice.  Therefore, The Legal Briefs contained in this section are from the Legal Briefs archives and are not offered for the purposes of offering legal advice.  However, even as a judge, Van will always be there, wherever and whenever he is asked, to inform and inspire our community.

The judge “has closed his ‘legalbrief’ website and realizes he should have done so promptly upon assuming judicial office, to avoid even the appearance of bias and that he was dispensing legal advice.”

The Commission concluded that, “by the totality of his conduct, respondent undermined public confidence in the judiciary and cast doubt on his ability to act impartially when he presided over matters involving violence or law enforcement personnel.”  In mitigation, the Commission noted that the judge’s misconduct took place shortly after he became a judge, he has acknowledged his conduct was improper and warrants public discipline, and he has committed to being more sensitive to his ethical obligations. 

* * *

Accepting a stipulation and order of consent, the Nevada Commission on Judicial Discipline publicly censured a judge for (1) 2 statements about the police and black people during court proceedings; and (2) inappropriate social media posts.  In the Matter of Ballou, Stipulation and order (Nevada Commission on Judicial Discipline June 11, 2024).  The judge also agreed to complete the National Judicial College online course “Judicial Ethics and Social Media:  A Lightning Course,” and to review the 2-part article from the Judicial Conduct Reporter on “Social media and judicial ethics.”  (The 2-part article was published in the spring and summer 2017 issues; summaries of additional relevant materials are added to an update posted on the CJE website as they are issued.)

(1) On November 10, 2021, during a sentencing hearing in a case in which the defendant fled from police in a vehicle pursuit on the Las Vegas Strip, the prosecutor argued that there was no reason for the defendant to run from the police.  In response, the judge stated:  “clearly you’re not a black person in the United States of America, because there are absolute reasons to run from the police,” and “so just as someone who, you know, has lived in the United States as a black person, that’s absolutely an untrue statement that he didn’t have any reason to run.”

On July 11, 2022, at a suspended sentence revocation hearing, the judge said to the defendant:  “You’re a black man in America, you know you don’t want to be around where cops are,” and “You know you don’t want to be nowhere where cops are because I know I don’t and I’m a middle aged, middle class black woman.  I don’t want to be around where cops are because I don’t know if I’m going to walk away alive or not.”

(2) While attending a music festival on Sunday September 19, 2021, the judge published an inappropriate statement about her judicial duties on social media.  At 10:46 p.m., the judge posted on Instagram, “Life is STILL beautiful, despite the fact that Billie Eilish doesn’t START for 30 minutes and I have an 8:30 calendar tomorrow.”  She included the hashtags, “VacateTheSh*tOuttaOutofCustodyCases” and “WhereInTheWorldIsCarmenSanDiego.”

In April 2022, the judge posted a photograph on her Facebook page of herself in a hot tub with 2 public defenders, one female and one male, with the caption, “Robson is surrounded by great t*ts.”

Throwback Thursday

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10 years ago this month:

  • Approving a stipulation and the Judicial Qualifications Commission’s findings and recommendation, the Florida Supreme Court publicly reprimanded a judge and fined her $25,000 for (1) purchasing a table at a Republican Party fund-raiser; (2) failing to include the qualifier “for” required for non-incumbent candidates in some of her early campaign materials; and (3) accepting funds for her campaign from her husband in excess of the $500 contribution limit imposed by law.  Inquiry Concerning Krause, 141 So. 3d 1197 (Florida 2014).
  • Adopting the findings of fact and conclusions of the law of the Judicial Tenure Commission, the Michigan Supreme Court suspended a judge for 60 days without pay for (1) closing a courtroom to the public and the victim’s family without complying with a statute; (2) refusing to impose a mandatory sentence even after the statutory language was brought to his attention; (3) refusing to remand a defendant convicted of first-degree criminal sexual conduct with a person under 13 to jail to await sentencing as required by court rule; (4) disregarding an appellate court order directing him to hold a hearing; (5) recasting an order dismissing a case without prejudice to justify his sua sponte dismissal of the case despite the defendant’s intention to plead guilty; (6) subpoenaing a defendant’s medical records without the parties’ knowledge or consent; (7) personally bringing a defendant convicted of several violent crimes from lock-up and sentencing him without restraints or courtroom security present; and (8) coming down from the bench at the start of a trial to shake hands with a criminal defendant and deliver papers to his counsel.  In re Morrow, 854 N.W.2d 89 (Michigan 2014).
  • The Montana Supreme Court publicly censured a judge and suspended him for 31 days without pay for his comments in sentencing a teacher for sexual intercourse without consent with a 14-year-old student, imposing an unlawful sentence, attempting to retract his sentence, and making inappropriate public statements attempting to justify his actions.  Inquiry Concerning Baugh, 334 P.3d 352 (Montana 2014).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a surrogate judge for presiding over matters involving (1) a lawyer who was her close friend and personal attorney; (2) a lawyer who was or had been her campaign manager; and (3) a lawyer who was her former attorney.  In the Matter of Doyle, 17 N.E.3d 1127 (New York 2014).
  • Pursuant to the judge’s agreement with the Disciplinary Board, the Pennsylvania Supreme Court suspended a judge’s law license for 1 year based on her guilty plea to 3 misdemeanor charges of tampering with public records for dismissing 3 of her own parking tickets.   Office of Disciplinary Counsel v. Ballentine (Pennsylvania Supreme Court June 16, 2014).

“At the wrong time and in the wrong manner”

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In an exercise of its superintending authority, the Arkansas Supreme Court publicly admonished a judge for entering an order that purported to stay the Court’s mandate regarding attorneys carrying firearms in the courthouse and that made “disparaging remarks” about the Court’s decision.  Steinbuch v. Pulaski County Circuit Court, Per curiam (Arkansas Supreme Court May 31, 2024).  “Given his failure to recognize the severity of his actions,” the Court also ordered the judge to complete additional judicial ethics education.

The judge presided over a civil action involving whether licensed attorneys in Arkansas are “officers of the court” and thus authorized by statute to carry firearms in courthouses.  Granting the defendants’ motion to dismiss, the judge ruled that the plaintiffs misread the statute and their interpretation would be unconstitutional.

On appeal, the Arkansas Supreme Court held that “officers of the court” as used in the statute included attorneys, that the statute allows attorneys to possess handguns in courthouses, and, therefore, that the judge had erred when he denied the plaintiffs’ petition for a declaratory judgment.  According to the Court, its “charge on remand was not complex—Judge Welch was instructed to ‘enter an order consistent with this opinion.’”

On remand, on May 7, the judge entered a temporary order that referred to the Court’s opinion as the “‘Lawyer/Officer-of-the court Carry’ Opinion (‘LOCO,’ hereafter) . . . .”  The order stated that the Court’s opinion “creates a new class of unlicensed, heretofore untrained, armed lawyers in courthouses of the State, in apparent conflict with the myriad of legislative enactments promoting carry permits . . . .”  The judge stayed “further implementation of ‘The Lawyer/Officer-of-the court Carry’ Opinion” and invited the sheriff, police chiefs, and district court representatives “to attend and submit input, on application, as Amici” at a hearing that was scheduled for August.

6 days later, the Court granted the plaintiffs’ request for emergency relief, vacated the judge’s order, and re-assigned the case to the district administrative judge.  The Court also gave the judge notice that his order may have violated the code of judicial conduct and provided him with an opportunity to appear for a hearing or to file a written response.  The judge “declined the opportunity to be heard in person and chose to submit a written response through counsel.”

The Court summarized the judge’s response.

First, Judge Welch understood this court’s mandate . . . , which reversed and remanded his prior decision, as a charge to conduct further proceedings.  He took that as his duty to consult with others, issue a variety of orders, and implement the court’s decision as he deemed practical and appropriate, and “that is what . . .  Judge [Welch] did.”  He was wrong. . . . 

Second, Judge Welch explains that he meant no disrespect to this court but that his “style, diction, and delivery are consistent with the vigorous written debate that has defined our judiciary for over a century.”  He believes he properly exercised his right of free speech but “admits that some of its characterizations should not have survived the editor’s pen . . . [and that his] diction may have deserved greater care and forethought.”  He also suggests that injury to reputation should not quash the right to free speech and that he spoke on a matter concerning the safe administration of justice.

The Court found that the judge’s order undermined public confidence in the judiciary.

Labeling and referring to an opinion by the Supreme Court of Arkansas as “LOCO” erodes public confidence. . . .  To suggest that this court created a class of armed lawyers is dangerous, and it undermines the public’s understanding of the judiciary’s role. . . .  [W]e interpreted a statute passed by the Arkansas General Assembly.  We interpret laws, we do not make them, and Judge Welch’s suggestion to the contrary damages the public’s view of the separation of powers and the role of the judiciary.

The Court also stated that the judge’s “response does not demonstrate that he understands the severity of his conduct.”

Suggesting that his comments were consistent with “the vigorous written debate that has defined our judiciary for over a century” is misguided.  A trial court is not “participating in rigorous debate” when it receives a mandate from an appellate court and issues an order staying most of it and labeling it as “LOCO.”  That is disingenuous.  Imagine if circuit courts across this state were to ignore mandates and stay orders of the Supreme Court of Arkansas and our Court of Appeals.  It would be unprofessional, rebellious, and harmful to the public’s confidence in the judiciary’s ability to follow its own rules.  As judges, we must follow our established framework if we expect others to do the same.  Judge Welch’s actions had no place on the bench, and it is disheartening that, when given an opportunity to reflect, he failed to recognize the impact of his actions.  The public must have confidence that judicial orders will be followed and that appellate mandates will be carried out.

The Court also found that the judge had not performed his duties impartially or left “his personal views behind him,” violating Rule 2.2.

Judge Welch made it clear in his written order that he disagreed with this court’s interpretation of the statute and with the statute itself.  His opinion was sprinkled with disparaging remarks about the court’s interpretation of the statute.  He then purported to stay an opinion and a mandate of the Supreme Court of Arkansas for three months because he “believe[d] a need for restraint pending the Hearing [was] required before the influx of Lawyers Officers.”  Judge Welch exceeded the role of circuit judge by staying our decision.

Judge Welch had earlier declared the statute unconstitutional; on appeal, this court disagreed and concluded that Judge Welch had erred by denying the plaintiffs’ petition for declaratory judgment.  On remand, any learned judge would know that the next step is to enter judgment for the plaintiffs—not to stay the supreme court’s order and sua sponte attempt to create an administrative scheme that redefines the legislation and this court’s mandate.  A declaratory-judgment action seeks a declaration one way or another.  It does not ask a judge to initiate and create an administrative scheme for application of a statute.  That is not the role of the circuit court.

In addition, the Court noted that the judge had described how on remand, he had toured the North Little Rock District Court Complex, reviewed layouts of other courthouses, and met with numerous colleagues and county officials.  The Court stated that “this is independent fact-finding and ex parte communication,” contrary to the principle of fair and impartial treatment.

The Court also found that the judge’s reference to the Court’s opinion as LOCO was an example of using demeaning nicknames or negative stereotyping that is a manifestation of bias or prejudice according to a comment to the code.  Noting that the judge hears cases in the civil-commitment mental health court, it stated:

He should be more circumspect with his word choice.  Using the Spanish word loco, meaning crazy, cavalierly referring to another court’s judicial order in a joking manner exceeds the bounds of appropriate judicial behavior.  And when given an opportunity to respond, to admit only that he should have had better editing skills, suggests a lack of judicial maturity and reflection.

The Court noted that in 2012, “acting on encouragement from Arkansas members of the American Board of Trial Advocates,” it had added a pledge of civility to the Attorney Oath of Admission to the Bar of Arkansas that states:  “I will maintain the respect and courtesy due to courts of justice, judicial officers, and those who assist them.”  The Court explained:  “It is not lost on this court that we administered this oath to the newest members of the Bar of Arkansas on May 3, 2024, only to have Judge Welch undermine it four days later, on May 7, 2024.”

It concluded:

Judges must be circumspect in their official roles and while presiding over a case.  Judge Welch expressed his frustration at the wrong time and in the wrong manner.  This court does not make law.  His actions as a member of the Arkansas Bar were unacceptable and indeed fell far below what we expect from a member of the judiciary.

Spring Judicial Conduct Reporter

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The spring 2024 issue of the Judicial Conduct Reporter has been published.  The issue has articles on:

  • Representing family
  • Candidate questionnaires
  • Recent cases
    • Abuses of power: Foster (North Carolina 2024)
    • The judicial high road:  Gaul (Ohio 2023)
    • Internet search:  Gilley, Public reprimand (Tennessee Board 2024)
    • Detesting the law:  Anderson, Public reprimand (Tennessee Board 2024)
  • Failure to response to judicial discipline complaints

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are available on-line.  Anyone can sign up to receive notice when a new issue is available.

Throwback Thursday

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20 years ago this month:

  • Approving an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) making numerous calls to party officials supporting the re-election of the county chair and (2) a payment from his campaign committee to the county Democratic committee that exceeded the reasonable value of any services the committee provided to the judge’s campaign.  In the Matter of Farrell, Determination (New York State Commission on Judicial Conduct June 24, 2004).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for offering to act as an intermediary in an effort to secure absentee votes for a candidate for county commissioner.  Public Warning of Webber (Texas State Commission on Judicial Conduct June 11, 2004).
  • Based on the recommendations of the State Commission on Judicial Conduct, a Review Tribunal Appointed by the Texas Supreme Court removed a judge from office for (1) failing to timely and properly receipt, deposit, and account for monies received by the court in more than a thousand instances over more than 5 years; (2) failing to file required reports in more than a few instances over almost 2 years; and (3) failing to timely execute the business of the court so that approximately 22,000 citations were unprocessed; the Review Tribunal also prohibited the judge from holding judicial office in the future.  In re Rose, 144 S.W.2d 661 (Review Tribunal Appointed by the Texas Supreme Court 2004).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for writing “NTG” on hundreds of defendants’ judgment and sentence forms, generally understood to be an acronym for “Nail This Guy.”  In re Burns, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 8, 2004).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for, without justification, terminating his participation in a conference in Hawaii, which had been paid for in part by the city, to pursue non-judicial activities.  In re deVilla, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 18, 2004).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for (1) failing to properly advise unrepresented defendants of their constitutional rights and (2) providing legal research and assistance to the municipalities she serves.  In re Ottinger, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 8, 2004).

Recent cases

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  • In an exercise of its superintending authority, the Arkansas Supreme Court publicly admonished a judge for entering an order on remand that purported to stay the Court’s mandate regarding whether attorneys could carry firearms in the courthouse and that made “disparaging remarks” about the Court’s decision; the Court also ordered that he complete a web-based course with the National Judicial College and 3 hours of ethics continuing legal education.  Steinbuch v. Pulaski County Circuit Court, Per curiam (Arkansas Supreme Court May 31, 2024).
  • Approving a stipulation for discipline by consent, the California Commission on Judicial Performance issued a severe public censure to a judge for, to influence the trial prosecutor’s decision about calling a rebuttal witness during the retrial of a murder case, initiating an ex parte communication with another prosecutor who had been observing the trial and for making a misleading disclosure to the parties and a misleading report to the Commission.  In the Matter Concerning Cole, Decision and order (California Commission on Judicial Performance May 28, 2024).
  • Based on a stipulation and the judge’s irrevocable resignation and agreement not to serve as a judicial officer in the state, the California Commission on Judicial Performance imposed a severe public censure on a former judge and barred him from serving in judicial office in the state for (1) presiding in 44 cases without disclosing the extent of his relationships and familiarity with attorneys or parties involved in the cases; (2) his sexual misconduct with a female acquaintance; (3) in a custody case, disregarding the father’s fundamental rights, abusing his authority, and engaging in ex parte communications; (4) in a second custody case, abusing his authority, disregarding the father’s fundamental rights, threatening to report the father’s attorney to the bar, making a ruling out of pique, and making sarcastic and gratuitous comments; (5) making undignified, sarcastic, and gratuitous comments in 5 proceedings; (6) before he became a judge, making inappropriate comments about an attorney in the courtroom; (7) making a statement that would reasonably be interpreted as a threat to report an attorney to the State Bar in retaliation for her filing a motion to disqualify him; (8) providing legal options to a friend about family law questions that arose at the school where she was employed; (9) during an online judicial candidate debate, falsely stating that he had never been disciplined by the Commission; and (10) using his chambers to participate in an online candidate debate and to film videos for his campaign.  In the Matter Concerning Kreis, Decision and Order (California Commission on Judicial Performance May 28, 2024).
  • Adopting the recommendation of the Commission on Judicial Discipline based on the judge’s stipulation, the Colorado Supreme Court publicly censured a former judge for (1) while serving as a magistrate, engaging in an intimate relationship with his judicial assistant for approximately a year and failing to disclose that relationship on his applications for judicial appointments and during the disciplinary proceeding; (2) referring to a different judicial assistant using a derogatory term, discussing with his judicial assistant and a law student intern his “alternative ‘lifestyle’ of consensual non-monogamy,” asking the intern to help him use the Tinder dating application, and pursuing a personal relationship with a former law clerk; and (3) abusing the prestige of his judicial office and initiating ex parte communications with another judge and that judge’s clerk to expedite a probate matter involving his father’s estate.  Adopting the special masters’ recommendation, the Court also ordered the former judge to pay the Commission’s attorney fees of $51,189.50.  In the Matter of Scipione, Opinion (Colorado Supreme Court May 6, 2024).
  • Accepting a stipulation and approving the proposed sanction, the Florida Supreme Court publicly reprimanded a judge for delays in rendering timely orders and failing to appropriately document cases he had under advisement as required by the court rules of.  Inquiry Concerning Beamer (Florida Supreme Court May 9, 2024).
  • With the judge’s consent, the Idaho Judicial Council publicly reprimanded a judge for “workplace conduct while performing judicial duties” in the courthouse; the Council also imposed an educational requirement.  Public Reprimand (Meienhofer) (Idaho Judicial Council May 1, 2024).
  • Based on a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court suspended a judge for 45 days without pay for (1) failing to supervise the processing of orders by his staff, which resulted in him presiding over civil cases in which he or his son were the attorneys of record; (2) erroneously issuing an ex parte change-of-custody order without giving the opposing party notice or an opportunity to respond; and (3) failing to supervise the processing of criminal cases by his staff, which led to delays in issuing warrants and entering chronological case summaries, missing orders, and the involuntary dismissal of 16 criminal cases.  In the Matter of the Norrick, Per curiam opinion (Indiana Supreme Court May 17, 2024).
  • The Indiana Commission on Judicial Qualifications publicly admonished a former judge for, during a hearing, providing through his court reporter the money a defendant needed to pay a default judgment.  Public Admonition of Kepner (Indiana Commission on Judicial Qualifications May 17, 2024).
  • Following a formal hearing, a hearing panel of the Kansas Commission on Judicial Conduct ordered a judge to cease and desist from violating the code of judicial conduct by posting pictures of himself wearing his robe and in the courtroom on his personal and re-election Facebook page; endorsing businesses in posts on Facebook; and making comments about cases he was handling in Facebook posts.  Inquiry Concerning Martinez, Findings of fact, conclusions of law, and disposition (Kansas Commission on Judicial Conduct May 1, 2024).
  • Based on the judge’s waiver of a formal complaint and hearing, the Minnesota Board of Judicial Standards publicly reprimanded a judge for (1) violating a 2021 deferred discipline agreement based on his aggressive demeanor and failure to perform judicial and administrative duties, (2) failing to remain impartial, inappropriately interrupting the questioning witnesses on numerous occasions, and appearing to be angry on the bench, and (3) ignoring timelines and failing to follow the law in Child in Need of Protection or Services cases.  In the Matter of Clark, Public reprimand and conditions (Minnesota Board of Judicial Standards May 17, 2024).  The Board also ordered the judge to comply with several conditions, including determining the causes of his misconduct and taking the actions necessary to ensure that the misconduct is not repeated, cooperating with a mentor and using an executive coach, and completing courses regarding CHIPS statutes, rules, and timelines.
  • Based on a stipulation, agreement, and consent to discipline, the New Mexico Supreme Courtpublicly censured a judge for acting as treasurer for her campaign and personally accepting funds on behalf of her campaign, failing to remove the person named as her campaign treasurer on the Secretary of State’s Campaign Finance Portal/Campaign Finance Information System when he withdrew his consent, and listing herself as the sole contact person for her re-election committee.  Inquiry Concerning Sichler, Per curiam (New Mexico Supreme Court May 13, 2024).
  • Accepting a stipulation based on the judge’s resignation and her affirmation that she will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge; the Commission had informed the judge that it was investigating complaints alleging that she (1) failed to renew her attorney registration within 30 days of her birthday in June 2022 and failed to change her email address so that it does not reflect her judicial title, notwithstanding that in July 2022, in a written stipulation, she affirmed to the Commission that she had done so, (2) failed to file her 2021 financial disclosure statement with the Ethics Commission for the Unified Court System by the required deadline, and (3) made prohibited political contributions.  In the Matter of Robichaud, Decision and order (New York State Commission on Judicial Conduct May 2, 2024).
  • Accepting a stipulation based on the judge’s resignation and his affirmation that he will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded a proceeding against a former judge; the Commission had authorized an investigation after the judge was arrested and charged with felonies for possession and sale of cocaine; subsequently, the Commission authorized an investigation of another complaint alleging that the judge invoked his judicial office with police to get a ride home after he had been stranded.  In the Matter of Soules, Decision and order (New York State Commission on Judicial Conduct May 2, 2024).  On April 17, 2024, the judge pleaded guilty to 1 count of criminal sale of a controlled substance in the third degree, a felony.
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) just prior to the arraignment of a defendant on charges in connection with the shooting of 2 police officers, asking everyone in the courtroom to join him in a moment of silence for victims of violence; (2) participating in a public demonstration against violence near where a child had been wounded by stray gunfire and making televised comments sympathetic to victims of violence; and (3) having on his personal website and Facebook page, both of which identified him as a judge, a video that provided legal advice to individuals involved in traffic stops and referred to the police as a “pack of wolves.”  In the Matter of White, Determination (New York State Commission on Judicial Conduct May 13, 2024).
  • Adopting the findings of a Special Committee, the Judicial Council for the U.S. Court of Appeals for the 9th Circuit publicly reprimanded a U.S. District Judge for the Southern District of California for ordering a deputy U.S. Marshall to handcuff the 13-year-old daughter of a defendant during a sentencing hearing.  In re Complaint of Judicial Misconduct (Benitez), Order (U.S. Court of Appeals for the 9th Circuit Judicial Council May 1, 2024).

Throwback Thursday

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25 years ago this month:

  • The California Commission on Judicial Performance publicly censured a former judge for a series of actions that commenced with his arrest for driving under the influence of alcohol and culminated with his arrest for riding a bicycle under the influence of alcohol 6 months later; the Commission also barred him from receiving assignments, appointments, or references of work from any California state court.  Inquiry Concerning Bradley, Decision and order (California Commission on Judicial Performance June 3, 1999).
  • Approving an agreed statement of facts, the New York State Commission on Judicial Conduct publicly censured a judge for (1) identifying herself as a judge when stopped by a police officer and (2) presiding in court while under the influence of alcohol on various occasions.  In the Matter of Knott, Determination (New York State Commission on Judicial Conduct June 11, 1999).
  • Adopting the findings and conclusions of the Board of Commissioners on Grievances and Discipline, the Ohio Supreme Court suspended a judge for 6 months without pay for making derogatory remarks about other judges and court officers to reporters, for example, describing a court of appeals decision as “purely political,” stating that juvenile detention center staff routinely beat inmates and that the court’s public relations officer and the administration routinely covered-up the beatings, and accusing the administrative judge of the juvenile division and the court’s director of community services and probation of lying to federal officials about the success of the juvenile boot camp program.  Office of Disciplinary Counsel v. Ferreri, 710 N.E.2d 1107 (Ohio 1999).
  • Pursuant to a former judge’s consent, the South Carolina Supreme Court publicly reprimanded the former judge for several abuses of power and lying to investigators; the Court also stated that the former judge may not seek appointment to any judicial office within the state unless authorized by the Court.  In the Matter of Wilder, 516 S.E.2d 927 (South Carolina June 1999).
  • Accepting an agreement, the South Carolina Supreme Court publicly reprimanded a judge for allowing court assistants to sign their names to tickets and other orders.  In the Matter of Sons, 517 S.E.2d 214 (South Carolina 1999).
  • Pursuant to a judge’s stipulation consenting to the implementation of the findings of fact, conclusions of law, and order of the Judicial Conduct Commission, the Utah Supreme Court publicly reprimanded a judge for his treatment of a traffic violation defendant and for ordering another defendant to take his stalking victim to dinner.  Re Allredge, Order (Utah Supreme Court June 22, 1999).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a court commissioner for comments to a female employee, for example, referring to her husband as a “dirty old man” and frequently commenting to the effect of “I know what an old man like that would want with a young chick like you.”  In re Aronow, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 4, 1999).
  • Pursuant to an agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for entering incorrect information in support of an order granting the court’s own motion to waive fees to facilitate the prompt service of an anti-harassment order she had entered.  In re Dubois, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 4, 1999).

Attempting “to put a thumb on the scale of justice”

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Approving a stipulation for discipline by consent, the California Commission on Judicial Performance issued a severe public censure to a judge for, in an attempt to influence the prosecution’s decision about calling a rebuttal witness, initiating an ex parte text exchange with a prosecutor who was observing a murder trial and making a misleading disclosure to the parties and a misleading report to the Commission.  In the Matter Concerning Cole, Decision and order (California Commission on Judicial Performance May 28, 2024).

The judge presided over the retrial of a murder case, People v. Travis Rockhill.  During the first trial, over which the judge had also presided, Rockhill made an allegedly incriminating statement in the presence of the judge’s bailiff, Deputy Randy Smalls.  Deputy Smalls was reassigned to another courtroom during the retrial to allow either party to call him as a witness.  In the retrial, Deputy District Attorney Yujin Yi represented the People, and Alternate Public Defender Peter Garner represented the defendant. 

On Friday, April 28, 2023, the judge’s former colleague, DDA Kevin Sexton, was in the courtroom to observe Rockhill testify in his own defense.  Following Rockhill’s testimony, the judge excused the jury, ordering them to return on Monday, May 1.  The judge then conducted a conversation with the attorneys off the record.  Both attorneys indicated that they did not intend to call any additional witnesses.  The defense rested, but the prosecution did not. 

Proceedings concluded at 3:53:35 p.m.

At 3:54 p.m., the judge texted DDA Sexton:  “She’s not calling Smalls after that???  Why??”  Sexton replied, “Not a clue,” and the judge responded, “Maybe people should talk it over with her???”

On Monday, Yi made a record that she was not calling any rebuttal witnesses and rested the People’s case.

On May 2, the jury began deliberating, returning a guilty verdict on May 8.

After the jury returned its verdict, DDA Sexton told DDA Yi about the judge’s texts.  On May 9, the district attorney’s office disclosed the text exchange to Garner and Supervising Judge Denise McLaughlin-Bennett.  On May 12, Judge McLaughlin-Bennett contacted Judge Cole regarding the text exchange, and Judge Cole agreed to disclose the communication on the record and recuse herself.

On May 15, in chambers, the judge disclosed the ex parte communication to the attorneys and then recused herself.  The minute order stated (italics added by the Commission):

The Court disclosed that after each side rested, after hours, the Court made inexcusable ex parte communications with another district attorney.  The Court does not try to justify inappropriate actions and admits wrongdoing.  Further, the Court states that she has reflected on the rulings made during the trial and believes that the rulings were fair and impartial.

On May 17, in a meeting with Judge Cole, Judge McLaughlin-Bennett criticized the May 15 minute order and instructed Judge Cole to correct the minute order and “objectively state what happened in chronological order without trying to minimize, explain or distort facts.”

On May 26, the judge modified the minute order to read (italics added):

The Court discloses that after both side [sic] rested their case[-]in[-]chief, trial had ended for the day, the Court made inexcusable ex parte communications with another district attorney that had been watching the trial.  A text message was sent at approximately at 3:45 p.m. [sic] and concluded before 4:30 p.m.

On May 26, the judge reported her conduct to the Commission and stated that she had sent the text after “both sides had rested their case[s-]in[-]chief,” after the trial had “ended for the day,” and that the “text messages concluded approximately before 4:30PM [sic].”  She represented that she had revised the May 15 minute order to correct an “error” regarding the “timing” of the text messages that was caused by her faulty memory.

Emphasizing that the prosecution had not rested its case at the time the judge engaged in the text exchange with DDA Sexton, the Commission found that the judge’s “texts to DDA Sexton, in which she suggested ‘someone’ talk to DDA Yi about calling Deputy Smalls as a rebuttal witness, conveyed bias for the prosecution, constituted improper ex parte coaching, and gave the appearance of usurping the prosecutorial role . . . .”

Further, the Commission found that although in the May 15 minute order the judge admitted the ex parte communication and characterized it as “inexcusable,” she stated falsely that the text exchange took place after hours and implied misleadingly that the ex parte communication occurred after the close of evidence and after the prosecutor had rested her rebuttal case.  The Commission also found that the judge’s subsequent rephrasing of the order was misleading because it still implied that the trial had concluded when it had not and that the texts were sent after the workday had ended.  The Commission further found that the judge made the same representations to the Commission in her self-report.  

The Commission concluded: Judge Cole’s conduct in sending text messages to her former colleague during a murder trial was antithetical to her role as a judge.  She attempted to put a thumb on the scales of justice, crossed the line from an impartial judicial officer to an advocate, and displayed neither neutrality nor wisdom.  Her subsequent conduct, attempting to shade her initial misconduct in a more positive light in the court minutes and in her self-report to the commission, further reflects an initial reluctance to accept full responsibility for her misconduct, and an effort to minimize the gravity of her misconduct.