Degrading stereotypes

In a recent case, based on a stipulation and agreement, a judge was publicly admonished for comments implying that a defendant might be raped in prison. In re Amato, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct June 24, 2022). The judge also agreed to participate in training focused on appropriate courtroom demeanor.

On August 10, 2021, the judge presided over the arraignment of a defendant charged with misdemeanor assault (domestic violence) and resisting arrest. Addressing the defendant prior to announcing the conditions on his release, the judge pointed out that his conduct occurred while he was on probation for other matters. The judge then told the defendant:

You’re setting yourself up, sir, to be Bubba’s new best girlfriend at the state penitentiary. I hope you realize that. That may hopefully give you a graphic image to think about. . . . And if you think I’m kidding, I’m not.

After the defendant indicated that he understood, the judge continued:

The folks at the penitentiary have mothers and sisters and nieces and cousins that they do not want someone out there abusing. And they will take that out on you, at the penitentiary. So think about that because you’re racking up felonies at this point.

In response to the statement of allegations, the judge assured the Commission that her comments, “while insensitive and thoughtless, were not motivated by bias or ill-will toward the defendant” but were “‘an attempt to communicate to [the defendant] in what were commonly understood terms that would have an impression upon [him] to change his behavior.”

Concluding that the judge’s comments detracted from the dignity of judicial office, the Commission emphasized that the judge could have communicated “the seriousness of the charges and their potential consequences . . . without implying that a defendant may be raped in prison if he continued his unlawful behavior.” It stated:

The words and images chosen were improper, discourteous, and unbecoming a judicial officer. They were degrading to both the defendant and other incarcerated people, playing on stereotypes, and exploiting fears of the criminal justice system. While Respondent’s intentions may have been to inspire law-abiding behavior through fear, the language used here is inappropriate in any court proceeding and is particularly inappropriate in an arraignment proceeding where the defendant is presumed innocent.

The Commission noted that the judge was conscious that “her unfortunate choice of language” could be perceived as a manifestation of bias and had committed to be more cautious in the future.

This is not the first case in which a judge has been sanctioned for comments to defendants about the possibility of violence in prison.

  • After noting that a defendant was smiling, a judge remarked that “they might like your smile in jail,” to which the audience responded with a loud “oooo” and laughter. Inquiry Concerning Salcido (California Commission on Judicial Performance November 10, 2010) (censure for this and other misconduct).
  • • While incarcerating a slightly built white male, the judge asked him if he “knew what they do to skinny little white boys in jail,” or words to that effect. Inquiry Concerning Shaw, Decision and order (California Commission on Judicial Performance June 26, 2000) (admonishment for this and other misconduct).
  • • A judge said to a criminal defendant, “If you get busted for this again, I’ll tell you how amusing you won’t find it. Unless you like those young boys at the jail. I understand they can be very friendly to young boys like you.” In re Popovich, Public reprimand (Kentucky Commission on Judicial Conduct July 7, 2016); notice of formal proceedings and charges.
  • • A judge told a defendant convicted of child abuse, “I hope this follows you to prison.” In the Matter of Smith, Stipulation and order (Nevada Commission on Judicial Discipline July 27, 2018) (censure for this and other misconduct).
  • • During sentencing, a judges said: “[I will] cast [the defendant] down among the [S]odomites . . . in state prison.” In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020) (ordering permanent resignation for this and other misconduct).

Thin skin

In 2 recent cases, judges were sanctioned for inappropriate reactions to public criticism.

The West Virginia Judicial Investigation Commission publicly admonished a magistrate for (1) making statements to a reporter in response to a police captain’s criticism of his bond in a case and a heated exchange during a meeting with the police about the criticism; (2) swearing at a police officer during a telephone call about the bond in another case; and (3) asking lawyers who appear before him and a bail bondsman to submit letters in support of him to Judicial Disciplinary Counsel.  Public Admonishment of Gaujot (West Virginia Judicial Investigation Commission April 25, 2022).

In early November 2021, the magistrate arraigned a defendant charged with severely damaging several police cruisers.  Police Captain Matthew Solomon told a local newspaper reporter that he was concerned that the magistrate had set the bond too low.  The magistrate told the reporter that he gave the defendant a low bond to make sure “the department gets restitution.”  The magistrate also “insinuated” that the law enforcement officers had beat up the defendant, stating, “He’d taken some knocks.  I mean his face was all swollen and I was kinda like ‘yikes,’ that he’d kinda done, he’d paid for that.”  His comments were reported in the newspaper.

After the article was published, the magistrate met with Captain Solomon and Police Chief Eric Powell.  During the meeting, the magistrate loudly addressed Captain Solomon’s decision to complain to the press about the bond.  According to Captain Solomon, the magistrate was belligerent and shouted vulgarities at him.  The magistrate’s behavior was so bad that Captain Solomon left the meeting to diffuse the situation.  Chief Powell said that he had to threaten to have the magistrate removed before he would calm down.

In his sworn statement, the magistrate admitted that he had a heated verbal exchange at the beginning of the meeting and that he had been “livid.”  The magistrate denied saying the vulgarity claimed but admitted saying that Captain Solomon’s speaking to the reporter was “an a**hole decision.”  The magistrate insisted that the meeting with police, his demeanor, and the use of the phrase “a**hole decision” were appropriate and that it was “just men being blunt in an attempt to work through their differences.”  However, when Judicial Disciplinary Counsel pointed out that the law enforcement officers saw an unequal balance of power between them, the magistrate admitted that the incident was inappropriate.

In November 2021, the magistrate arraigned a mother charged with the felony offense of gross child neglect with risk of serious injury after a single vehicle crash that caused injury to several children.  The prosecuting attorney requested a bond of $250,000.  The magistrate, who sits in Monongalia County, thought that she should be given a personal recognizance bond and called a Preston County Magistrate to discuss the prosecutor’s request.  During the call, the other magistrate put Magistrate Gaujot on hold and then returned to the call with the police captain who had investigated the crash.  Captain Tichnell insisted that the magistrate set the bond requested by the prosecutor and threatened that, if the magistrate set a PR bond, he would dismiss the charge against the mother, file more serious charges, and file a judicial ethics complaint.  According to Captain Tichnell, the magistrate repeatedly responded in a vulgar manner. 

In his sworn statement, the magistrate stated that Captain Tichnell was emotional on the phone and would not let him speak.  The magistrate believed Captain Tichnell’s tone, demands, and threat were out of line but admitted that he swore at Tichnell and that his conduct was inappropriate.

The Commission stated:

A judge must have a thick skin.  Not everyone will agree with the decisions that judges must make in cases on a daily basis.  There will always be at least one party who will disagree with the decision and they are free to openly criticize the judge if they so choose.  However, judges are constrained by the rules from replying to criticisms and shall not do so when they involve a matter that is pending or impending in any court.

Judicial temperament is an absolute requirement.  Not only does a judge set the tone of his/her courtroom but he/she in large part owes his/her reputation to acts of courtesy, civility and consideration.  Judges must also realize that how people view the judge is how they view the court system as a whole.  In order to gain respect, a judge must give respect even in difficult circumstances.

Judges are often perceived as the most powerful person in his/her county.  In other words, the balance of power is never equal where a judge is involved and it is usually heavily tipped in his/her favor.  Therefore, a judge must at all times take into consideration how he/she is viewed by his/her opponent before commenting.  A simple negative comment by a judge may be viewed by his/her opponent as a threat.  Therefore, judges should choose their words wisely.  Respondent failed to follow these precepts.

* * *

The Ohio Supreme Court suspended a judge for 6 months for berating a litigant who had criticized the judge at a board of commissioners meeting because he presided in cases in which his daughter was an attorney, for allowing his daughter to interrogate the litigant, and for subsequently appearing at a commissioners’ meeting to accuse the litigant of “publicly disparaging and slandering” him and his daughter.  Disciplinary Counsel v. O’Diam (Ohio Supreme Court April 28, 2022) ().  The suspension was stayed conditioned on the judge committing no further misconduct and completing 6 hours of continuing judicial education on demeanor, civility, and professionalism.  The Court adopted the findings of the Board of Professional Conduct, which were based on stipulations.

The judge practiced estate-planning, trust, and probate law as a majority shareholder of a law firm.  His daughter, Brittany O’Diam, joined the firm in 2010 and remained at the firm after the judge was appointed Greene County probate judge in 2013.  The firm’s shareholders made regular payments to the judge for his shares until March 2021.

In January 2018, Carolee Buccalo’s granddaughter retained Brittany to represent her in the administration of Carolee’s estate.  In May, Brittany filed an application to probate the will in Greene County.  Brittany also filed 7 waivers of disqualification signed by the beneficiaries of the estate.  3 of the waivers were from Carolee’s son Grant Buccalo, in his personal capacity, as a trustee, and as a guardian for one of his brothers.  The waivers disclosed the judge’s familial relationship to Brittany and his position as a former shareholder and creditor of her law firm, acknowledged that those circumstances may disqualify the judge from presiding over cases in which attorneys from the firm represented the executor, but stated that the signatories trusted that the judge would act impartially and fairly. 

On May 26, 2019, at a public meeting of the Greene County Board of Commissioners, Grant Buccalo expressed his belief that the judge should recuse himself from cases in which his family members represent parties.  Buccalo added that when people leave the courtroom, they need to feel that they “got a fair shake” and that the system “wasn’t rigged.”  Buccalo spoke for approximately 2 ½ minutes and stated that he merely wanted to ensure that the commissioners were aware of the judge’s practice; he did not specifically mention his mother’s estate or express any concern regarding the case, although he did state that he planned to file a grievance with Disciplinary Counsel.

The judge’s chief deputy clerk informed the judge of Buccalo’s statements to the commissioners, and the judge obtained a video recording of the meeting.  The judge then scheduled a status conference in Carolee’s estate case and ordered the executor and the 3 local beneficiaries, including Buccalo, to appear, cautioning that, “Failure to attend this Status Conference will be deemed contempt of court.”

At the status conference, the judge thanked the beneficiaries “for showing up on such short notice,” explained that a “very disturbing incident [had] taken place with the estate,” stated that he needed to get it resolved that day, and played the recording of Buccalo’s comments at the commissioners’ meeting.  He called Buccalo to the stand, placed him under oath, and informed him that any false statements would constitute perjury.  He then cross-examined Buccalo for nearly an hour.

For example, the judge told Buccalo to read the waiver of disqualification into the record and then asked him, “Is there anything in the second paragraph that you don’t understand?”  Becoming emotional as the judge questioned him, Buccalo explained that he was “an emotional mess” when he signed the waiver and had not read it closely.  The judge asked:  “[D]id anybody not ever advise you that before signing your name on a document, you should read it?”  Buccalo answered, “[O]f course.”

When the judge asked Buccalo if he believed that the commissioners were “over” his court, Buccalo testified, “I think they have some influence.  I might be wrong on that.”  The judge replied, “You are.”  He then asked Buccalo whether he had ever read the Ohio Constitution and the U.S. Constitution and whether he was aware of the concept that the 3 branches of government are independent of each other. 

The judge also questioned Buccalo about how he was able to comment on the court and “trash” the judge to the commissioners given that the topic was not related to any item on the meeting agenda.  Buccalo explained that he had contacted the commissioners’ office before the meeting and was told that they would give him time to speak on the issue.  The judge responded, “So the board of commissioners knew what the topic was going to be * * * even though they’re well aware that they have nothing to do on the authority of a court” and “It was a public forum in which you could go make your argument without my knowledge, without me being there.  Seems to me it was basically a free shot.”  Buccalo replied, “Oh, no.  I didn’t look at it that way,” and the judge replied, “I do.”

The judge told Buccalo that he and the commissioners had had a “run-in” before and that they “almost went to blows” over the commissioners’ attempt to interfere with the administration of his court.  (The Court noted that, a month before the status conference, it had issued a peremptory writ prohibiting the judge “from enforcing orders related to a dispute he had had with the commissioners regarding courtroom space.”)  In response to Buccalo’s statement that the commissioners had changed their rules on public comment because people would “demagogue” them, the judge replied, “Isn’t that exactly what you did about me?  That you went in and demagogued me in front of the commissioners * * *.”  Buccalo stated, “I wouldn’t call it demagogue,” to which the judge responded, “I’ll tell you what I would call it.  I would call it slander.”  Although Buccalo attempted to explain, the judge interrupted, saying, “I need to move on * * *.”

After questioning Buccalo for almost an hour, the judge allowed Brittany to question him for more than 15 minutes.  Brittany asked a couple of questions about the waiver of disqualification and then said, “[D]o you expect that I should have known that you had an issue even though I received a signed waiver from you?”  Buccalo attempted to explain his concerns, stating, “I’m not trying to argue with you.”  Brittany replied:  “I am.”  Brittany repeatedly asked Buccalo whether he had ever raised concerns about the waiver to her.  When he said he had not, Brittany stated, “And yet you still thought it was appropriate to impugn my character as an attorney in the public forum of a public county commissioners meeting, as well as the character of the court, which has been addressed?”  Buccalo responded, “We might have differences of opinion,” to which Brittany replied, “We certainly do.”  Buccalo stated, “I’m not trying to be rude, but when I did public comments * * * I make a habit of not trying to make them personal.”  Brittany retorted, “You failed in this account.”

Brittany closed by telling Buccalo:  “You have cost this estate an extensive amount of money, an extensive amount of heartache and an extensive amount of stress that was all completely unnecessary had you just proceeded like an adult.”  Buccalo stated, “And I have no response to that,” to which Brittany replied, “No you do not.  It was not a question.  * * *  It was a statement,” and then claimed, “This is not an adversarial proceeding.”

After Brittany’s interrogation of Buccalo, the judge made remarks similar to his earlier statements.  Later that day, the judge issued a notice of disqualification.

A week after the status conference, the judge and Brittany attended a board of commissioners’ meeting.  After explaining that he and Brittany obtained waivers of disqualification whenever Brittany represents parties in uncontested cases before him, the judge told the board that, “[Buccalo] chose to be untruthful to you and the public, to unjustly smear myself and my daughter.  That is simply despicable.”  The judge then claimed, “We do not have a problem in probate court.  What we have is a problem with people improperly using this Board as a public forum to lodge unfounded and false accusations.”  After expressing his disappointment that the commissioners had permitted Buccalo to speak on the issue, the judge stated that “[t]his is not the proper forum to wage personal vendettas against any public official.”

The Court found that the judge had violated Rule 2.8(B) in 3 ways:  by failing to be patient, dignified, and courteous while interrogating Buccalo, by failing to “require Brittany—an attorney who was under his direction and control—to conduct herself in a patient, dignified, and courteous manner when she questioned Buccalo,” and by failing to be patient, dignified, and courteous while appearing before the county commissioners.  The Court noted that the judge had “planned his course of action against Buccalo—and had more than a week to contemplate whether it was appropriate for him to appear before the commissioners and publicly berate Buccalo for a second time.”  The Court rejected the judge’s argument that he was “carrying out [his] responsibilities as the judge” because “the purpose of the status conference was to determine whether the waivers that Buccalo signed remained valid and whether he could continue to preside over the case.”  The Court concluded that the judge’s “primary concerns were the effects that Buccalo’s public statements had on [his] reputation, his daughter’s reputation, and the reputation of his court and how those statements personally offended him.”

“Absolutely nothing to justify”

Adopting the findings of misconduct and recommended sanction of the Professional Conduct Board based on stipulations, the Ohio Supreme Court suspended a judge for 1 year without pay for his undignified, improper, and discourteous demeanor toward a criminal defendant and the defendant’s girlfriend in his courtroom, for ordering that the defendant’s girlfriend take a drug test, and for sentencing her to 10 days in jail for contempt when she refused.  Disciplinary Counsel v. Repp (Ohio Supreme Court November 9, 2021).

The Court emphasized its holding in prior judicial discipline cases that “’the power to punish for contempt is properly used to secure the dignity of the courts, not to demean and intimidate people,’ and that abusing that power serves to cast doubt on the judicial officer’s impartiality and to weaken public perception of the integrity of the judiciary.”  The Board had emphasized that the girlfriend had done “absolutely nothing to justify [the judge’s] attention in the courtroom—let alone his order that she be drug tested” and that she “suffered great personal indignities and emotional distress as the result of the security and medical screenings she had to endure during her incarceration, on top of the anxiety regarding the care and well-being of her two young children.” 

On March 11, 2020, A.O. left her 2 young daughters in the car with their grandmother and entered the judge’s courtroom to observe the arraignment and probation-violation hearing of the girls’ father, T.D., who had been arrested the previous day on a bench warrant for violating the terms of his probation by failing to appear at a drug court program.  A.O. sat in the back row of the courtroom and waited quietly for T.D.’s case to be called.

On several occasions, the judge addressed A.O. from the bench although the video recording of the proceedings does not show that A.O. brought any attention to herself.

During the proceedings in an unrelated case, the judge stated, “Going to be lots of drug tests today.  Is that [T.D.’s] girlfriend back there?  I don’t know.  I thought maybe it was.”  After the defendant in that case stated that he did not believe in using drugs, the judge stated, “That’s good.  I wish all of us could say that.  Right, [A.O.]?”  A.O. did not respond to the judge’s comments.

Before calling the next case, the judge stated, “Oh, before we get started, I think [A.O.’s] under the influence.  I want her drug tested.”  A.O. had made no disturbance in the courtroom and did not have a case pending before the judge, was not on probation, and had never been charged with or convicted of a drug-related offense.

The bailiff directed A.O. to follow him out of the courtroom to the probation department so that the drug test could be administered.  A.O. complied.   In a text, she told T.D.’s mother, who was still watching their daughters, that she was afraid to leave the courthouse because she thought that the judge would issue a warrant for her arrest.  In another text, she asked her sister to come get her daughters because T.D.’s mother had to go to work.

At the probation department, A.O. requested a lawyer but was told that she was not eligible for court-appointed counsel because she had not been charged with a crime.  When A.O. said that she would not take a drug test, the probation officer stated that A.O. would go back in front of the judge after he was done with lunch.

Approximately 10 minutes after A.O. had left the courtroom, the judge called T.D.’s case.  T.D. appeared by video from the county jail.  The judge greeted him by stating, “Hold it.  Hold it.  Who’s that vision?  That vision of a man I haven’t seen in so long?  Ho, just getting by, doing his own thing.  Holy Smokes.  How you doing. [T.D.]?  How you been?”  T.D. replied, “You know, not too bad.  Just going to work, coming home, going to work, coming home and slipped up and got caught, you know.”  The judge responded, “Slipped up and got caught.  Yeah, baby.  Slipped up and got caught.”

The prosecutor recited the charges and T.D. entered a no-contest plea.  After accepting T.D.’s plea, the judge stated that he had been looking for T.D. in the drug court program and then asked T.D. whether he or A.O. had recently overdosed.  At the time, the judge did not have any verified evidence that T.D. or A.O. had recently overdosed.  After reading the police report, which indicated that A.O. was in the car with T.D. at the time of his arrest, the judge stated, “Wow.  [A.O.’s] down here.  She’s probably going to go to jail too.  Who’s watching the kids [T.D.]?”  When T.D. stated that his dad was probably taking care of the children, the judge laughed and said, “Your dad.  I heard your dad went to jail for you, too; is that right?”  T.D. replied that he was not sure, and the judge said, “Yes, he did,” although he had no verified evidence to support that statement.

The judge sentenced T.D. to a 180-day jail term for one case and a 30-day jail term for a second case, to be served concurrently.  The prosecutor recommended an additional 150-day jail sentence for T.D.’s probation violations.  When T.D. asked whether the 150 days would be concurrent with his other sentence, the judge replied, “Uh, what do you think, [T.D.]?  Am I giving two for one today?  I don’t think so.  I hate to saddle the Seneca County Jail with you, but, [T.D.], you’ve been so, you know, defiant about this and haven’t followed through with a thing.  I’m trying to help you out.  I know you overdosed since then.  I’m giving you the 150 days.  That’s consecutive * * * not concurrent.  Good luck.”

After lunch, the probation officer took A.O. back into the courtroom and told the judge that she had refused to take a drug test.  When the judge asked why, A.O. explained that she did not think she had done anything to be in trouble.  The judge stated, “Okay.  Well, you come into my courtroom, I think you’re high, you’re in trouble.”  A.O. replied, “Okay.  I’m not, though.”  The judge then asked A.O. whether she wanted to take the drug test, and when she stated that she did not, he said:  “Can I have a journal entry.  We’re going to hold you in contempt.  I’m going to submit and commit you for ten days.  When you decide you want to take a test, then I’ll, then we’ll talk about this again.  All right?”  A.O. replied, “Okay.”  The judge stated, “Is there anything else?  Remand to custody.  You have the keys, [A.O.]”

A.O. was immediately remanded to the custody of the sheriff, handcuffed, and transported to the county jail.

At the jail, A.O. experienced several indignities.  She was required to take a pregnancy test and undergo 2 full-body scans.  The female officer who conducted the scans allegedly detected anomalies that she believed could have been contraband inside A.O.’s body.  A more senior officer, who was a male, was called to review the scan.  Although the female officer attempted to cover A.O.’s breast and genital areas on the screen while the male officer reviewed the scan, the male officer told the female officer that that was unnecessary, and then the male officer asked A.O. whether she had pierced nipples.  A.O. did not respond.  She was handcuffed and transported to the hospital where she was required to submit to a second pregnancy test and a CT scan or an MRI scan.  No contraband was found, and she was returned to the jail.

A few hours later, A.O. became scared and worried about her children and told a correctional officer that she was willing to take the drug test because she wanted to go home.  The officer replied that A.O. was not allowed to take the test and that she already “had her chance.”

On the evening of her arrest, A.O. retained an attorney to represent her.  The next morning, her attorney filed a notice of appeal and a motion requesting that her sentence be stayed pending the appeal.  During a hearing on A.O’s motions later that day, the prosecutor moved to vacate the contempt finding, and the judge agreed but only on the condition that A.O. agree to a drug-treatment assessment.  However, he no longer had jurisdiction due to A.O.’s appeal.  After that hearing, A.O. was released from jail.

In September, the district court of appeals reversed the judge’s judgment of contempt against A.O., finding that the record was “devoid of any specific observations or findings by [the judge] of [A.O.’s] conduct in the courtroom supporting his stated belief that she was under the influence while observing court proceedings” and that the judge did not have the authority to compel her to submit to a drug test.  On remand, the judge dismissed the case.

The Board rejected the judge’s testimony that his misconduct was motivated by a desire to help A.O., finding that the judge’s statements to A.O. and T.D. were arrogant and exhibited “a desire to prove that his suspicions about A.O.’s impairment were accurate and consistent with unsubstantiated rumors that he had heard about her and T.D.’s past drug use.”  The Board also found that the judge’s “hearing testimony demonstrated that he was very frustrated with T.D. and that he had channeled that frustration toward A.O.”

“Alarming insensitivity” and “heightened sensibilities”

The New Jersey Supreme Court recently sanctioned 2 judges for comments to litigants that had “the clear potential to suggest” bias against women in one case and had been reasonably interpreted as sexual innuendo in the other.

Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge without pay for 1 month for making sexist and misogynistic comments that reflected his religious beliefs to a male defendant during a video hearing on domestic violence charges.  In the Matter of Brister, Order (New Jersey Supreme Court September 16, 2021).  The judge admitted the factual allegations and conceded that his language was injudicious and violated the code of judicial conduct. 

On February 21, 2019, the judge presided over a matter in which an incarcerated defendant with multiple domestic violence charges appeared over a video conference link.  During the proceeding, the judge stated:

I’m going to tell you like I tell a lot of people with this same charge because all of these charges are the same.  We as men – and I can speak to you as man, because I’m a man, as well, we get frustrated with the women human beings because we try to straightened out a creation because they was created with a curve, but we as men, we think we are above creation, and we can straighten it out.  No matter how much you try, or how you try to straighten out that curve, you can never do it.  We get frustrated, and then — but in our frustration you can’t come at them like you’re Mike Tyson, and they’re in the ring like they’re Leon Spinks.  You can’t do it.  You can’t punch, you can’t hit.  At best, you treat as if you’re holding a feather, just to let them know you’re the man, and you’re in control.  But on each one of these five complaints it said you went at ‘em like Mike Tyson.

In response to the Committee’s question “about what exactly he meant,” the judge “described his language as a ‘poor choice of words’ and admitted that his comments stemmed from his personal religious belief concerning ‘creation from a higher power,’” and referenced “the biblical origin story in which Eve was created from the rib of Adam.”

Noting the judge’s claim that he had been trying to provide guidance to the defendant about “how to more appropriately behave when experiencing feelings of frustration,” the Committee explained that, regardless of his intent, the judge’s statements were disparaging toward women, “sexist and misogynistic,” and “had the clear potential to suggest” that the judge was biased against women.  The Committee also found that the “clear religious implications of Respondent’s remarks are equally inappropriate and wholly misplaced in a court of law” and that his “integration of his personal religious beliefs into his judicial conduct” also violated the code of judicial conduct.

In aggravation, the Committee noted that the judge had received a private letter of censure addressing similar concerns about “the appearance of a bias in favor of a litigant of Respondent’s same faith.”  Although he had not received that letter until shortly after he made the current “problematic comments,” the judge had already received the Committee’s request to address the earlier matter.  The Committee found that, in both matters, the judge “demonstrated an alarming insensitivity . . . to the perception of bias . . . .”

In mitigation, the Committee noted the judge’s remorse and attempts at apology and found that his comments, “while unacceptable . . . , were made in good faith to dissuade the defendant from engaging in physical acts of violence.”  However, the Committee concluded that the mitigating factors were outweighed by the judge’s repeated “instances of poor demeanor and the appearance of bias” and that a 1-month suspension was justified.

* * *
Adopting the findings and recommendation of the Committee, the New Jersey Court publicly reprimanded a former judge for making a remark to a female defendant that was reasonably interpreted as sexual innuendo.  In the Matter of Rodriguez, Order (New Jersey Supreme Court October 15, 2021).

During the first appearance of a female defendant charged with multiple drug offenses, after the defendant pled not guilty, the following exchange took place:

Assistant prosecutor:  Do we have to put bail on the record?
Public defender:  Oh, it’s an ROR bail.
Judge:  Your bail is ROR — you’re released on your own recognizance.
Defendant:  Okay.
Judge:  But you do have bail.  You have monetary bail.  You’re released on your own recognizance.
Defendant:  Okay.
Judge:  Okay?
Defendant:  Thank you.
Judge:  Do you understand?  You seem a little —
Defendant:  I’m like a little — ‘cause —
Assistant prosecutor:  Well, it’s confusing –
Defendant:  — I’m like, wait –
Assistant prosecutor:  — saying money bail or saying she doesn’t have to post anything.
Judge:  Yeah.  No.
Defendant:  Is it – do I owe you anything or –
Judge:  Not that you can do in front of all these people, no.

The assistant prosecutor, Lauren Casale, and a court services supervisor, Audra McEvoy discussed the incident and brought it to the attention of court administration.

The judge “consistently denied any impropriety or the appearance of an impropriety in his exchange with the defendant” and maintained that Casale and McEvoy “misunderstood his remark to the defendant as a sexual innuendo.”  The judge argued that he had been simply “’reiterating [to the defendant] that she need not make a payment to secure bail.’”  When testifying at the hearing, the judge “attempted to contextualize the social climate at the time of these events with reference to the ‘Me Too movement, Harvey Weinstein …, [and] Matt Lauer . . . .’”  The Committee described his testimony:

Cognizant that “people’s sensibilities as to sexual innuendos and saying things in the workplace were somewhat heightened,” Respondent maintained that his intent in making the subject remark was innocuous, i.e. to disabuse the defendant of any notion that she was required to post bail before leaving court that day. . . .  The offense expressed by AP Casale and CSS McEvoy, Respondent argued, was unreasonable and engendered by “their sensibilities, . . . their gender sexuality, . . . [and] their interactions with different types of people. . . .”

The Committee also noted that, although he denied it, there was evidence that the judge’s comment “may have been an attempt at humor,” noting that he had earlier in the proceeding joked about the defendant’s last name and that 4 of his character letters described his use of humor.  1 letter stated the judge used “quips” in his courtroom, and another stated that proceedings in his court often “took on a somewhat informal air.”

The Committee found that the judge’s statement was inappropriate, rejecting his defense as “unpersuasive.”  It explained:

The subject statement, on its face, suggests to its intended recipient that there was something she could do for Respondent in private, outside of the presence of those in the courtroom and unrelated to bail, that would satisfy her obligations in respect of the criminal charge.  Given the defendant’s ROR release, we find Respondent’s explanation incongruous and the witnesses’ interpretation of his remark as a sexual innuendo and their subsequent offense reasonable.  Regardless of his intent, Respondent’s statement had the clear potential to suggest to the defendant, as it did to AP Casale and CSS McEvoy, that she could avoid the consequence of her criminal charge if she were to do for Respondent, in private, something of a sexual nature.

Whether Respondent intended his words as a sexually suggestive remark, an attempt at humor, or something else, while Respondent knew or should have known that his choice of words was inappropriate because of the negative inferences which reasonably could, and, in this case, were drawn from the manner in which he phrased his response to the defendant’s inquiry.  Such remarks have no place in our judicial system and must be assiduously avoided by all members of the Judiciary, particularly its jurists.

Respondent’s introduction of sexual innuendo into a courtroom proceeding impugned the integrity of the Judiciary and the judicial process, sullied the dignity of those seeking redress in the court, and tainted the solemnity of the courtroom proceedings . . . .

Need for change

Adopting the findings of a 3-judge panel based on stipulations, the Wisconsin Supreme Court suspended a judge for 7 days without pay for (1) in a domestic violence case, mischaracterizing the victim’s in-court statement and castigating her for expressing her opinion of her relationship with the defendant, “essentially discouraging her from calling the police in any future domestic violence situations;” (2) during sentencing in a case involving the sexual assault of a 13-year-old girl, using “profane language and imagery” and displaying “irritation” in response to defense counsel’s argument, making clear that he did not wish to hear extended arguments, attempting to intimidate the defendant into waiving his right to speak in allocution, and referring to the girl as the “so-called victim;” (3) stating when taking a guilty plea in another case, “I would love to have a trial on this issue, I’d love that he get found guilty, and I’d love to give him a year in jail for wasting my time today.  I would love to do that, but unfortunately I can’t;” (4) using undignified, discourteous, and disrespectful language when sentencing a young defendant with cognitive impairments and “essentially” threatening the defendant by displaying a handgun as a “prop;” (5) displaying his handgun to high students visiting his courtroom; and (6) impliedly labelling an attorney a “d**k” during a custody/placement modification hearing.  In the Matter of Woldt (Wisconsin Supreme Court July 13, 2021).  The Court concluded that a short suspension was necessary “to assure the members of the public that judges will treat them with dignity, fairness, and respect when they enter the courtrooms of this state, and to impress upon Judge Woldt the seriousness of his misconduct and the need for him to change how he treats the jurors, lawyers, litigants, witnesses, victims, and staff with whom he interacts.” 

2 justices joined an opinion concurring in the 2-week suspension and most of the findings of misconduct but dissenting from the findings that the judge committed misconduct by displaying his handgun during the sentencing hearing and during the students’ visit, attributing the majority findings to political correctness and “its personal policy preferences, which appear to be grounded in ‘hoplophobia,’ i.e., an irrational fear of guns.”  Noting that the preamble to the Wisconsin code of judicial conduct states that, “Care must be taken that the Code’s necessarily general rules do not constitute a trap for the unwary judge or a weapon to be wielded unscrupulously against a judge,” the partial dissent argued that the majority “disregard[s] this prefatory admonition and weaponize[s] the Code, brandishing it as a ‘blunderbuss’ that may be used by ‘any lawyer or any pundit’ with a political agenda.”

The judge was authorized to carry a concealed gun and had a Glock Model 43 handgun in a holster on his right hip under his judicial robe. 

The first incident involving the handgun took place while the judge presided over a sentencing hearing in a case in which the defendant, Shaffer, had pled no contest to stalking.  The defendant was in his mid-20s and suffered from substantial cognitive deficiencies.  He had removed the garage door opener from his neighbors’ car and used the opener to enter the neighbors’ house.  He took some of the wife’s underwear, which he later returned.

During his sentencing comments, the judge told the husband and wife that he understood their fear and then gave “a rather lengthy soliloquy about his views on courthouse security before returning to what an appropriate sentence should be.”  For example, the judge stated to the victims that the courthouse was not “the most safest place in the world,” and “I have tried the County Board, I have tried everything to get people to do something to keep guns out of this courthouse, and nothing happens, so you know, you got to protect yourself.”  At that point, the judge removed the handgun from its holster, ejected the loaded magazine, racked the handgun’s slide to eject the bullet from the chamber, held up his handgun, and said, he kept it “up here on the bench just because I want to protect myself.  Now, I’m not saying you should do that but if I was in your – if I was in your situation, I’d have it on my side all the time.”  To the defendant, he said, for example, “With today’s laws with the Castle Doctrine, you’re lucky you’re not dead because, if you would have come into my house, I keep my gun with me and you’d be dead, plain and simple, but that’s what makes this so scary.”

The Court emphasized that the judge’s misconduct “was not the simple display of a gun; it was the display of the gun “as a ‘prop’” in connection with the comments.”

First, Judge Woldt used undignified, discourteous, and disrespectful language that demeaned the solemnity of the court proceeding and his role as the person imposing a just sentence on behalf of society.  In addition, although that case did not involve any firearm charges or even the use or threat of any firearm, Judge Woldt essentially used his sentencing comments to encourage the victims to take matters into their own hands and use a gun, as he would do.  It was at that point that he brought out the handgun from under his robe to display it for dramatic emphasis.  As the Panel noted, it was not necessary for any valid judicial purpose to display the gun and introduce an element of force into the sentencing hearing.  Most importantly, it was immediately after displaying the gun that Judge Woldt turned to addressing the defendant, who was a young man with substantial cognitive limitations.  Just two sentences after holding up the gun, Judge Woldt told this young man that he was lucky that he had not entered Judge Woldt’s house because Judge Woldt would have shot him dead on the spot with the gun that he always keeps with him (and had just displayed).  That comment in connection with the display of the gun served no purpose other than to menace and frighten the young man.  Finally, as the Panel also noted, “Judge Woldt’s comments about his own personal fear and the display of the handgun served only to personalize the proceeding and detract from his role as an impartial and fair decision maker.”

The Court concluded that the judge’s “comments, when combined with the unnecessary display of his personal handgun during the sentencing proceeding, constituted a failure to observe ‘high standards of conduct’ ‘so that the integrity and independence of the judiciary will be preserved.’” It explained

 A judge who displays a personal gun as a “prop” during a court proceeding and then immediately threatens to use it to kill the defendant if he ever broke into the judge’s residence is not demonstrating the integrity of the judiciary, . . . and is not “promot[ing] public confidence in the integrity and impartiality of the judiciary.” . . .  Such conduct does not show that the judge is conducting himself or herself as a respected judicial officer applying the law in a dispassionate and reasoned manner, as the public expects judges to do.

The Court stated that the fact that the judge was authorized to carry a concealed weapon did not resolve whether his conduct violated the code.  It explained:

The law also does not forbid individuals from engaging in impatient, undignified, and disrespectful conduct.  Indeed, in most circumstances, the First Amendment to the United States Constitution protects from governmental sanction speech that is impatient, undignified, and disrespectful.  That fact, however, does not mean that a judge cannot be disciplined for impatient, undignified, and disrespectful speech when the judge directs that speech to participants in a court proceeding over which the judge is presiding.

In the second incident, during a visit by a group of high school students to the judge’s courtroom during a Government Day event, a student asked the judge a question about court security, which was the topic for a debate before the county board that the students were scheduled to participate in later.  In response, the judge took the fully loaded and concealed gun out of the holster, removed the magazine and the round in the chamber, and briefly displayed the gun to those in the courtroom.

The Court emphasized that the judge displayed the gun “as a ‘prop,’ apparently to make dramatic his ongoing courthouse security complaints” and that “there was no reason to pull out a gun in response to a question from a high school student.”  Although the gun was not loaded when he displayed it, the Court noted that the judge had not disclosed that to the students.  It explained:

All they knew was that an adult judge in a black robe sitting on a judicial bench in a courtroom suddenly pulled out a gun, which for all they knew could have been loaded. . . .  Judge Woldt’s dramatic introduction of the use of force in the form of his personal handgun unnecessarily personalized what should have been an educational discussion about a topic of civic interest.  Drawing a gun in front of a group of teenage high school students when on the bench in one’s capacity as a representative of the judicial branch and when there is no judicial purpose for doing so does not promote confidence in the judge as a dispassionate and impartial arbiter of the law or in the judiciary as a whole.

Zoom problems

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for, in addition to other misconduct, declining to determine who was attempting to appear at the end of a calendar via Zoom.  In re Burchett, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct April 23, 2021).  The judge also agreed to continue to work with a mentor judge and to participate in at least 4 hours of ethics training.

At the conclusion of the afternoon calendar one day in February 2021, just after 3:15 p.m., the court clerk told the judge that there was 1 more person in the Zoom “waiting room” and asked if they should be “let in” so that the judge could speak with them.  Apparently tired, the judge said that she “just can’t.”  The clerk indicated that they needed to see who it was and set the case over.  The person in the Zoom waiting room had renamed themselves “Help I couldn’t log in at 2 p.m.,” and the clerk surmised that it could be the 1 person from the 2 p.m. docket who had failed to appear and for whom a warrant had been issued.  The judge said, “You almost hate to not talk to them if they can figure that out,” referring to the way the person had renamed themselves, but the judge again declined the clerk’s request to bring the person in from the waiting room and said that they “would have to do the bench warrant docket.”

The Commission found that the judge had displayed a “disregard for an individual attempting to navigate technology and appear in court” that violated the rules requiring a judge to “accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law;” to “comply with the law, including the Code of Judicial Conduct;” and to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and . . . avoid impropriety and the appearance of impropriety.”

The reprimand was also for the judge’s failure to advise defendants at probation review hearings of their rights; for conducting an ex parte investigation into whether a defendant had performed community service hours and stating on the record that she intended to recommend significant jail time and further charges; for asking 2 defendants when they were arraigned in traffic offense cases whether they had a valid driver’s license; for regularly recommending specific businesses to defendants for re-licensing and insurance purposes related to their charges; and for regularly presiding over cases in which a notice of disqualification had been filed against her.

The judge is the fourth judge to be publicly sanctioned for conduct related to the COVID-19 pandemic.  See also 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); 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”); 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).

Judicial touching

Recently, 2 judges were sanctioned for touching people in the courthouse.

The West Virginia Judicial Investigation Commission unequivocally held:  “Unwanted touching is harassment.  Therefore, a judge should never intentionally touch someone without first asking permission.”  The Commission explained:

A common phrase used by almost everyone is “don’t invade my personal space!”  What does it mean and should society be cognizant of the phrase when dealing with other people?  The Merriam Webster Dictionary defines “personal space” as “the distance from another person at which one feels comfortable when talking to or being next to that other person.”  It’s the physical distance between two people in a social, family or work environment.  As the author Robert Sommer said, “Personal space refers to an area with invisible boundaries surrounding a person’s body into which intruders may not come.”

The study of personal space is called proxemics.  There are four distinct personal space zones:  intimate (0-2 feet); personal (2-4 ft.); social (4-12 ft.) and public (more than 12 ft).  Deference for a person’s space is a sign of respect for the person.  No one should ever invade someone’s personal space in a work setting without permission.  Consequently, no one should intentionally touch someone in a work setting without permission or even in jest.  As noted by Anthropologist Jane Goodall once said, “You have to realize that touching is a real violation of personal space.”

Thus, based on an agreement that included the magistrate’s resignation, the Commission publicly admonished a now-former magistrate for coming up behind a court employee at work and placing his hands on her hips.  In the Matter of Cole, Public admonishment (West Virginia Judicial Investigation Commission April 29, 2021).  The touching was unwelcome and made the employee uncomfortable, but she did not say anything to the magistrate because of his position.  The employee did report the incident to her immediate supervisor, who contacted the chief magistrate, who reported it to the administrative office, which investigated and filed the complaint.

The magistrate said that he had no memory of the incident although he did not deny that it happened, acknowledging that he had always found the employee truthful and had no reason to believe that she made up the incident.

The magistrate admitted that, during a birthday celebration at the courthouse in 2017, he had swatted the same employee on her rear end approximately 9 times.  The magistrate said he stopped when the employee asked him to and that everyone in the room had laughed in a good-natured way.  The employee had been embarrassed but said nothing because of the judge’s status.

The Commission found:

Respondent considers himself a jokester.  Respondent said he often liked to sneak up behind the same employee and make a loud noise or touch her back in an effort to startle her.  Respondent said the employee would jump and they would both laugh.  Respondent acknowledged engaging in such activity with other employees.  Under repeated questioning, Respondent refused to admit that his actions were improper.  Instead, he claimed that he was just being spontaneous, that his actions were intended to be humorous and that he was trying to have some fun. . . .  Respondent declined to acknowledge that any unwelcome touch is an unwarranted touch or that an uneven balance of power would cause an employee to refrain from complaining about an unwanted touch. 

The magistrate agreed to stop spanking employees but “saw no need to stop touching people in an effort to scare them . . . .”

The Commission concluded that the magistrate’s touching of the employee “clearly constituted harassment . . . .  There is no place in the judiciary for a judge who has no respect for boundaries.  By his actions, Respondent cast shame on the whole judiciary and no longer deserves the title of judge.”

* * *

A Texas judge was admonished for approaching a legal assistant in his courtroom, touching her on the arm or shoulder, and rebuking her for sitting in a section of the courtroom reserved for attorneys.  In re Wilson (Texas Special Court of Review May 4, 2021).

The judge took office on January 1, 2019.  On January 29, Sarai Garza, a legal assistant for an attorney, was seated on the first bench in the judge’s courtroom, where, she testified, she had always sat with attorneys, interpreters, and other legal assistants in her 11 years as a legal assistant.

On that day, the judge apparently mistook Garza for the interpreter, saying, “Lady interpreter, are you ready?”  Noting that he was looking at her, Garza introduced herself and said that she was not the interpreter but that she would be “more than glad to help.”  Garza said that “everyone in the courtroom started laughing.”

Blasa Lopez, the interpreter, then entered the courtroom.  The judge left the bench, walked toward Lopez, and grabbed her arm.  Garza walked toward them to clear up the confusion about who the interpreter was.  Then, Garza testified, the judge grabbed and “jiggl[ed]” her right arm and told her in an “angry” and “very upset” voice that she could not sit where she had been sitting.  Garza said that his touch was painful, that she had not expected him to grab her arm in that manner, and that she was speechless.  Garza left the courtroom crying.

Lopez and an attorney who had been in the courtroom testified that they saw the judge grab Garza by the shoulder or arm.  An attorney called by the judge as a witness testified that the judge “came off the bench” in a packed courtroom of “probably 300 people,” “touched [Garza] on the elbow like [he was] trying to get somebody’s attention,” and told her that she could not be on that side of the courtroom. 

According to Garza, the judge grabbed her arm so hard that it was bruised.  Approximately 2 days later, Garza had a medical examination that indicated she presented with “[r]ight biceps and triceps, mild swelling with tenderness.” 

Lopez texted her supervisor to report the incident; the presiding judge filed the complaint with the Commission.  The incident generated a great deal of media attention.  Police investigated, but a grand jury declined to indict the judge.

The judge denied touching or grabbing Garza, or at most admitted to lightly touching her elbow or shoulder.  When asked if it was ever appropriate for a judge to touch a person in open court without their consent, the judge replied, “When a judge gently touches someone . . . it is not sexual harassment, it is not objectionable.”

The Texas Special Court of Review concluded that, “although Judge Wilson claims to not remember touching Garza, every other witness who was present . . . testified that Judge Wilson touched Garza in some way.”  The Court stated that it did not need to resolve whether the judge “forcefully touched or grabbed Garza because it is uncontested that the touching was without Garza’s permission.”  The Court also concluded that the judge’s conduct was willful because he had intended to touch Garza without her consent and to publicly admonish her in his crowded courtroom.  The Court found that the judge had failed “to treat Garza with patience, dignity, and courtesy” as required by the code of judicial conduct.

In mitigation, the Court noted that the judge had been in office for less than 30 days at the time of the incident and that the record revealed no previous or subsequent complaints against him.  However, in aggravation, it emphasized:

The misconduct took place in a public courtroom setting while Judge Wilson was robed and acting in his official capacity as a sitting judge.  The preponderance of the evidence shows that Judge Wilson’s behavior showed no regard or respect for Garza and caused her to be publicly embarrassed. . . .  Judge Wilson has largely failed to acknowledge that the charged misconduct against Garza occurred and has thus failed to take responsibility for his actions.

The Court rejected the judge’s argument “that it was ‘not objectionable’ ‘[w]hen a judge gently touches someone.’” 

The State Commission on Judicial Conduct had also ordered the judge to complete 2 hours of instruction about sexual harassment with a mentor; the Court modified that requirement to 2 hours of instruction about decorum.

No excuses

In 2 recent cases, the California Commission on Judicial Performance rejected several arguments the respondent judges raised to defend their discourteous conduct.

In 1 case, the judge had interrupted and spoken sharply, irritably, sarcastically, and impatiently to 2 defense attorneys who had appeared for an arraignment by phone the first day after the governor had issued the COVID-19 stay-at-home order.  The attorneys had asked for and received the judge’s permission to appear by phone because they were concerned about having been exposed to the virus and the possibility of spreading it at the courthouse.  They had tried but failed to get another attorney to appear for them at short notice.

Both attorneys argued for the defendants’ release on their own recognizance based on health concerns that made them vulnerable to the virus if in custody.  In response to one of the attorney’s reliance on a letter from his client’s doctor, the judge asked, for example, “How am I going to see that letter, if you’re not in my courtroom?” and made similar comments.  When he imposed bail of $150,000, he said, “if you have those letters, you can bring those in at” the preliminary hearing.  To the second defendant’s attorney as well, the judge stated:  “If you wished to present this evidence, you should have been here or had someone represent you” before imposing bail of $100,000.

In the judge’s response to the preliminary investigation letter, he acknowledged that he “should not have demonstrated irritation or impatience with defense counsel” and that he “spoke too sharply” to them.  He asked the Commission to consider “the highly unusual circumstances present at that time:”  the court had not yet implemented remote operations; it was not clear how long the stay-at-home order would be in effect; and there was no clear guidance about handling a request to appear telephonically at a criminal proceeding.

The Commission acknowledged that the circumstances were challenging but noted that the unusual circumstances also affected the defense attorneys and concluded that “the initial lack of clarity . . . did not excuse or explain the judge’s mistreatment of the attorneys.”  The Commission emphasized that there was “no evidence of provocative conduct by counsel,” noting that the judge had given them permission to appear by telephone and they appeared polite and respectful.  At his appearance before the Commission, the judge acknowledged that the transcript “looks bad,” but did not display contrition or admit that he committed misconduct, arguing instead that he had not treated the “attorneys any differently because they were not in the courtroom.”

In addition, in a case in 2018, the judge had made a gratuitous, undignified, and improper comment after a jury had acquitted defendant Eugene Germany but convicted his co-defendants, including Dalisha Jordan.  After the jurors left the courtroom, the judge said to Germany:

Let me tell you, you’ve been given a gift from God because there’s no question in my mind that you’re guilty of this crime. . . .  I’ll tell you, chivalry is not dead.  If you’d taken the deal, Ms. Jordan would have had that six year deal.  She’s going to get a lot more time than that.  So, you know, take that into consideration.  All right.  But you’ve been given a gift.  What you do with it is your choice.  Fair enough?

Germany responded, “Yeah.”

At his appearance before the Commission, the judge asserted that what he did “was right” and “what [he] should have done” and that it was his “duty” and his “responsibility” as a judge to advise Germany that he had been “given a gift from God” so that “Germany would take advantage of opportunities he has been given.”  However, the Commission explained that “a judge does not have a duty to advise a criminal defendant that the defendant has been given the gift of an acquittal.  While a judge may encourage a defendant to make better choices and take advantage of opportunities in the future, the judge must not do so at the expense of the jury and its verdict.”

The Commission publicly admonished the judge for his comments in these 2 cases.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021).

* * *
The California Commission publicly admonished a retired judge for (1) a pattern of poor demeanor in 10 dependency hearings over which she presided in 2019 and 2020; and (2) on consecutive days, yelling at court staff and displaying frustration about an internet outage and discourteously raising her voice to another judge.  Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021).

The Commission concluded that the judge’s “misconduct involved harsh and degrading treatment of multiple vulnerable and struggling parents in dependency,” finding that “the number and nature of these incidents indicate a pattern of misconduct.”  For example, in 4 dependency hearings in the same case involving 2 siblings, the judge, among other comments and conduct, impatiently reprimanded the mother for something she did not do and stated that the father was “talking out of both sides of his mouth,” failed to get reimbursed for transportation expenses “because he didn’t feel like doing it,” and was “being uncooperative,” as the father tried to explain his request for replacement forms.  The judge also rolled her eyes, shook her head, argued with the parents, and declared that she could order the mother to do whatever she wanted.  In addition, the judge incorrectly accused the mother of being on a very high dose of heroin every day; derisively discussed the mother’s drug treatment records; said, without evidence, that there was “extreme violence” in the parents’ home; and said that the parents had turned into “very nasty people.’”  The Commission also found that, during those 4 hearings, the judge abused her authority by substituting her own judgment for that of the mother’s doctor on the issue of prescription marijuana and methadone use; abandoned the role of a neutral arbiter and became embroiled when she argued with the parents about the mother’s marijuana use; and repeatedly and negatively commented on the mother’s prescription use of methadone.

In hearings in other cases, the judge made remarks to parents, such as, “Don’t lie to me;” “that is a lie;” “appalling;” “That doesn’t help me at all.  How can I remember when you came to court last?”; “That’s baloney;” and “That’s why these children were detained.  Not because you made a stupid decision.”  The judge called a father’s lack of alcohol treatment “pathetic;” told parents, “Both of you are doing terribly, and there isn’t a chance in the world these children are coming home if you continue doing what you’re doing;” and said to a mother, “You’re clean?  And you expect me to believe that?”

In response to the Commission’s preliminary investigation, the judge blamed her frustration on the parents’ behavior and explained that “she employed a ‘tough love’ approach that she also used while presiding in drug court, arguing that her approach was necessary to compel parents to gain awareness of the harm they were causing their children and to change their behavior.”  However, the Commission found that “belittling and demeaning litigants is not appropriate in any court, dependency, criminal, or otherwise.  Such conduct violates the Code of Judicial Ethics.” 

6 of the hearings had taken place on January 8, 2020, the first day after the dependency court was moved from Chico to Oroville, in a consolidation plan the judge disagreed with.  Also on January 8, there was a court-wide internet outage that delayed the judge’s already-full calendar.

Sometime during the morning, a court staff member entered the judge’s courtroom to bring the courtroom clerk a message.  The judge appeared frustrated and upset by the lack of internet service and yelled, “This is ridiculous!”  Later that morning, another court employee heard the judge come out of her courtroom yelling, “This isn’t working!  This isn’t working!”  As the judge walked down the hall toward the clerk’s office, her voice continued to be raised.

The judge approached a staff member’s desk and yelled, “This is my worst nightmare coming to Oroville.  I never wanted this to happen.  Fix it immediately!”  or words to that effect.  The staff member offered to see if she could move the judge to another courtroom, but the judge yelled that she was not moving to another courtroom.  Then the judge turned and loudly stomped down the internal hallway toward the courtroom and her chambers.

At some point during the lunch hour, the judge returned to the clerk’s office and loudly demanded that a clerk request that a courtroom be opened in the Chico courthouse because a matter on her afternoon calendar had been incorrectly noticed for Chico.  The juvenile clerk contacted a supervisor who said that the court staff in Chico had decided not to open another courtroom.  When the clerk told the judge, she appeared to be very upset and left the clerk’s office.

Court staff heard the judge return to her chambers and slam both her outer and inner doors.  Later, when a court supervisor repeatedly knocked on the judge’s closed outer door, the judge refused to respond.

A few minutes later, the judge returned to the clerk’s office.  The judge was very upset and appeared to have been crying.  She began screaming and pointing her finger at one of the supervisors, demanding that court staff open a courtroom in Chico.  The supervisor attempted to calm the judge and explain the alternative plan to opening the courtroom.  But the judge refused to listen, repeatedly interrupted, and continued to scream and point her finger.  The judge then turned and walked out with the supervisor following.  The judge stopped in the middle of the clerk’s office, and yelled, “Fine!  I’ll just do this myself!” in front of a number of court employees.

Shortly thereafter, the judge emailed the presiding judge to tell her that she was sick and going home; she then left the courthouse.  Court staff expressed concern for the judge and concern that the public may have overheard her outbursts.

The following day, the judge returned to the courthouse and apologized to court staff for her behavior.

Judge Roberts asked the assistant presiding judge why she could not be moved to a specific other courtroom.  When the assistant presiding began to explain, Judge Roberts spoke to her with a raised voice.  The assistant presiding judge told Judge Roberts that she was going to leave if Judge Roberts continued to yell and that yelling at her or at court staff was not acceptable.  As the assistant presiding judge left chambers, Judge Roberts said derisively, “Thanks for the support.”

The judge acknowledged her mistreatment of staff, her misconduct in the courthouse, and her discourtesy to the assistant presiding judge; sincerely regretted “her lack of composure;” and recognized that her behavior was not appropriate.

“Salty”

Affirming the findings of fact and conclusions of law of a panel of the Commission on Judicial Conduct following a hearing, the Kansas Supreme Court suspended a judge without pay for 1 year for (1) frequently using the word “f**k” and its derivatives when speaking at the courthouse; (2) using derogatory terms when referring to women; and (3) using the phrase “Kansas boy” to describe a young black male defendant.  In the Matter of Cullins (Kansas Supreme Court February 26, 2021).  The Court stayed the suspension for 60 days for the judge to submit a plan for counseling and training.  If the Court approves the plan, it will stay part or all of the suspension during the plan’s term; if the judge successfully completes the plan, the Court will consider waiving any remaining suspension.

(1) The Court held that the use of “f**k” “is unprofessional and—almost always—undignified for a judge,” violating the rule requiring a judge to treat everyone with patience, dignity, and courtesy.  In response to the panel finding that the judge had also violated the rule requiring a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” the judge argued that the F-word is ubiquitous “in the current culture’s vernacular” and “cussing is so common in Southeast Kansas” that it does not reflect negatively on character.  The Court concluded that the judge’s “offensive conduct went far beyond any undignified and unprofessional use of the word ‘f**k’” and that his “aggressiveness; his reference to a female litigant as ‘crazy’; his overt and public humiliation” of the chief clerk; and “his loud, angry, and expletive-filled reprimand” of a court clerk “collectively” violated the rule.

The judge also argued that his profanity could not have undermined public confidence in the judiciary because the incidents “did not occur in a public forum.”  However, the Court noted that at least 2 incidents had occurred or could be heard in a hallway near members of the public.  Further, the Court explained that the judge’s argument “defies logic” by suggesting that his “conduct has not been discussed in the community by the people who witnessed it.”

The judge also argued in his defense that he was often fair to court staff.  The Court stated that, “while that may be true, good behavior on some—even most—occasions does not disprove misbehavior on other occasions.”  Further, it emphasized that good behavior did not “override” code violations, but at most was relevant as mitigation for discipline.  It explained:  “Frankly, good behavior, while commendable in a judge, is also expected.”

(2) The panel had concluded that the judge’s “use of derogatory words,” particularly “b***ch” and “c**t,” to describe women manifested a clear bias based upon sex and “was hostile toward the individuals about whom he was speaking. . . .  Intentionally gender-based derogatory references toward women have no place in the administration of justice, and have no place in a judge’s vernacular.”  (The Court noted that a minority of the justices believed that there was no showing of bias against females generally but only bias against certain females.)

The judge asserted that his statements did not violate the code because he did not make them while performing judicial duties, that is, “during or in relation to any matter he was adjudicating” or while performing administrative duties.  The Court rejected that argument:

Respondent interprets “judicial duties,” including his administrative duties, too narrowly.  While in the courthouse—when court business of every kind was being addressed—Respondent was present in his official capacity as a district judge, and sometimes also as chief judge.  A judge does not lose his mantle of authority when he steps out of his chambers into a hallway.  A judge’s performance of “judicial duties” occurs constantly in the courthouse during the course of any given day. . . .  Those duties include the times a judge presides over hearings, completes administrative reports, and evaluates employees, but they also include those occasions when a judge discusses employee performance with attorneys and other staff; admonishes persons waiting in the hall to be quieter so as not to disrupt court proceedings; offers to assist a wandering law enforcement officer who needs an application for search warrant reviewed; directs a member of the public to the right courtroom; addresses a complaint; and deals with innumerable other things that require a judge’s professional attention, judgment, and decision throughout the day.

(3) During a bond hearing for a young black male student at a local college, the judge asked, “Can I assume you’re not even a Kansas boy?”  There was a second bond hearing also involving a young black male student immediately afterward.

The judge testified that he did not intend the term “boy” to have any racial connotation, that he considers himself a “Chautauqua County boy,” and that his reference to the young man as “a Kansas boy” was similar.  The panel found that the judge’s testimony was credible and that he did not intend the term as a term of racial derision, noting “geographic origin was relevant for proper administration of the bond hearing, and the men were teenagers.” 

Noting that “words and phrases . . . are important,” the Court concluded that, “regardless of inflection, tone, or local custom,” the judge’s conduct “during these bond hearings created a reasonable perception of racial bias . . . .”  It explained:

Specifically, two adult Black men appeared before the judge during a bond hearing, both presumed innocent of their criminal charges. A reasonable individual might perceive that the following may have shown racial bias:

• Something about the defendants’ appearance caused the judge to believe they were athletes;
• Something about their appearance caused the judge to assume they were not from the area;
• Something about their appearance caused the judge to question—even disbelieve—one defendant’s assertion that he had no felony record; and
• During the judge’s comments he used a term — “boy”— that has been used at times in the past as a common and well-known slur against Black men.

The Court concluded that, “when taken altogether and in context, a reasonable perception of bias cannot be denied.”

In mitigation, the judge stated that he is efficient, fair in his hearings, and “does not mean to hurt or harm” but “is just ‘salty.’”  The Court found that the judge’s conduct “quite troubling.  He has intimidated and publicly humiliated court employees.  He has shown bias and the appearance of bias by his insulting and careless remarks, even while on the bench and presiding over hearings.  By his coarse language in the courthouse, he has sullied the dignity and propriety of the judiciary.”

Setting the tone

A recent judicial discipline case illustrated the connection between judicial demeanor and public confidence in judicial decisions.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge “for an intermittent pattern of intolerant and intemperate behavior.”  In re Wilson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020).  The judge also agreed to participate in at least 2 hours of ethics training and to participate in behavioral coaching with an emphasis on courtroom demeanor by a qualified behavioral modification professional until the “professional has certified, in writing, that such counseling has accomplished positive changes and that in his/her opinion, the Respondent has the competency to maintain these changes in the future.”

The Commission initiated a complaint after the court of appeals reversed a sentence imposed by the judge and remanded for re-sentencing before a different judge.  The reversal was based on the judge’s use of profanity and comments that appeared to manifest bias against a defendant terminated from drug court.  In that case, the judge, after telling the defendant he could, “Stop with the shoulder bulls*** now,” said:  “So I got a guy standing in front of me, who won’t tell me that he’s got a dirty UA for alcohol, finally admits that he drank and then tells me he needs anger management.  I think you’re a f***ing addict and maybe you need treatment.  I don’t think it’s got nothing to do with anger management.  You think I give you anger management and that’s gonna get you clean and sober?  What the hell are you talking about?  Have a seat, over here…  Percocet and alcohol…  I’m gonna relax a little bit and then figure out what to do with him.”  The judge also said:  “You, sir, are just a criminal, that’s all you are, you’re just a criminal.  Do you have issues?  Yep, you do.  Are you going to deal with them?  No, you’re not….  You, the odds say, are going to die in prison.”

The judge’s disrespectful language to a defendant led to reversal of a second sentence and remand to a different judge.  In that decision, the court of appeals rejected the prosecution’s argument that the judge had simply been having “a serious conversation” with the defendant about addiction and the possibility of change and explained that slurs and epithets were not necessary for a serious conversation and that the judge’s “harsh and inappropriate language defeated the purpose.” 

The Commission identified additional hearings in other cases that illustrated the judge’s intemperate behavior.

During one hearing, the judge told an attorney who was trying to make a record:  “You don’t have the right to make a record” and “I am not going to proceed in this case with this counsel in front of me.  The matter will be stricken, and re-note it in front of another judge.  You may take him,” the latter comment directed to the jailer about the in-custody defendant.

At another sentencing hearing, the judge denied the prosecutor’s request to have the victim present by telephone, saying in an elevated and agitated voice while pointing directly at the prosecutor, “Neither you nor your office have a right to tell this Court what it’s going to do in its own courtroom.”

The Commission had publicly admonished the judge in 2018, based on a stipulation and agreement, for, during sentencing in a domestic violence case, addressing the defendant in a confrontational and angry tone, repeatedly calling the defendant “an animal,” and, near the conclusion of the hearing, refusing to let the defendant speak.

In the current discipline case, the Commission noted that, although the judge “is generally calm and professional on the bench, at times he can be impatient or volatile,” interrupting litigants and attorneys, addressing them “in an unduly confrontational, condescending, and harsh manner,” using foul language, profanity, and language that manifested bias or prejudice, and expressing “anger or emotion.”  It noted several negative effects of such conduct:

  • It “may impair the right of individuals to be fairly heard by intimidating or discouraging them from fully presenting their positions in court.”
  • It may discourage “others from wanting to appear in his courtroom for fear of how they might be treated.”
  • It affected his ability to execute his duties and significantly impacted “his efficacy as a judicial officer,” noting his recusal from 1 case and the 2 cases in which he was reversed.

The Commission emphasized:

The judge sets the tone for the courtroom.  Discourteous and disrespectful behavior by a judge in the courtroom erodes the public’s confidence in the quality of justice administered by that judge, not only for the direct targets of such behavior, but also for all those who witness it.  The public is more likely to respect and have confidence in the integrity and fairness of a judge’s decision if the judge is outwardly respectful, patient and dignified.  Because of the power disparity between a judge and others in the courtroom, berating a litigant or an attorney is not a proper exercise of judicial power.