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.