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).

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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.

“A calm steady hand” needed

Based on an agreement, the California Commission on Judicial Performance publicly admonished a judge for, in several hearings in a family law case, making comments that demonstrated embroilment, bias, and pre-judgement and that were discourteous and undignified, including accusing the parents of damaging their child and initiating a discussion about religion with a witness.  In the Matter Concerning Gary, Decision and order (California Commission on Judicial Performance May 14, 2020).  The Commission emphasized:

Family law matters can be particularly fraught with emotion.  These situations are when a calm and steady hand, a respectful demeanor, and the appearance of neutrality are especially needed.  A judge may convey to family law litigants the judge’s concerns about the detrimental effects that high-conflict disputes may have on children, but may not do so by telling parents, in harsh terms, that the judge knows how their children will turn out.  Judges may also express their concerns about counsel’s conduct, but may not do so in a disparaging manner, or in a manner that is likely to interfere with the attorney-client relationship.  Judges may also question witnesses, but must comply with the canons’ mandates of patience, dignity, and courtesy when doing so.

From January 2017 through December 2018, in In re Marriage of Battilana, the judge presided over more than a dozen hearings on the mother’s request to relocate with the parties’ minor child to Oregon and for attorney fees and later an ex parte request about summer visitation and the child’s asthma medication.  On April 17, 2018, the judge issued a decision and order on the relocation/custody issues.  On May 29, the father filed for bankruptcy.

The Commission found that, during those hearings, the judge made comments that demonstrated embroilment, bias, and prejudgment.

  • The judge remarked that he was “picking sides,” “knew where the problems lie,” and “the parties are going to find themselves with nothing in the end.”
  • The judge stated, “I hate it that I have been brought into this personally. I hate it.  That is not the role of a judge, and frankly, it’s not the role of parties to involve a judge like has happened here.”
  • The judge told the parties, “On January 30th you went on my radar. By the time we got to July, I thought about you after work, unusual.  I was always watching for your case.  I even kept your file in my chambers for a while, for a long while.  When pleadings would come in, I would keep the pleadings.  You were always on my radar. . . .  And I had told you guys the path you’re going down, you shouldn’t be going down ad nauseam.  And that in the end what I fully intended was that someone is going to win and someone is going to lose, and it will be big time.  Judgment day is today.  One of you will win.  One of you will lose, and judgment day will be big time.”
  • The judge stated, “Way to go. Way to go.  I’m done.  Go off to trial, burn it all up.  Good luck.”

The Commission also found that the judge’s accusations that the parents were damaging their child were undignified and discourteous, could be reasonably perceived as reflecting bias or prejudice, and failed to promote public confidence in the integrity and impartiality of the judiciary.  The judge had said:

  • “[H]ow bad do you want to ruin your child.”
  • “And good luck to [the child], because it ain’t going to turn out well for her.”
  • “[S]he’s going to get divorced. And your grandkid is going to go through the same things she’s going through because this is all she knows.”

In her testimony, the father’s mother appeared to criticize the mother for not taking the child to the doctor or calling the doctor when she was running a fever.  The following exchange then took place:

THE COURT:  Sure.  How do you think Jillian [the mother] got the prescription?THE WITNESS:  I have no idea, sir.
THE COURT:  Do you know whether Jillian is a pharmacist?

The Commission found that that question was sarcastic.

The grandmother also testified that, although she had heard disagreements between the mother and the father, she had stayed out of them.  Subsequently, the judge, while questioning the mother, made a remark about the grandmother “suffer[ing] a bout of amnesia.”  The Commission found that remark was gratuitous and noted that, although “judges may examine witnesses to elicit or clarify testimony, they must not become an advocate, comment on the evidence, or cast aspersions about, or ridicule, a witness.”

A retired licensed clinical social worker testified that she heard the child say her father was going to die and that a 2-year-old child does not understand death.  The judge then discussed with the social worker the purpose of religion and the promise of everlasting life, referencing the Bible.  For example, he stated:

In fact, it’s healthy for a person [to face death], at least in this trier of fact’s opinion since I’m having to rule on the best interest of your child.  Death is part of life.  In fact, it’s one of the certainties of life.  And the reason I raised religion is not to get into a deep philosophical religious discussion, but to address this witness’s concern with these two parents that a child not understanding the permanence of death, that is true, but parents or adults also struggle with the permanence of death.  And one of the ways they cope with the permanence of death is through religion, through the promise of when you die, somehow you will live again.  The Christian religion — I know dad goes to church, or at least I’ve heard testimony.  The Christian religion, you will have everlasting life, John 3:16.  If you go through that, what is the purpose for that for adults?  This is all commentary on the side.  It’s so that you don’t have to face the permanence of death.  Well, the truth of the matter is we don’t know.  Some of us have strong opinions one way or the other on that.  Wars have been fought over that, are continually fought over religion.  My concern is not as much the statement having been made unless there is solid proof that one of you is running around saying to the child your daddy’s going to die soon.  Your mommy is going to die soon.  If that’s happening, that is way, way out of bounds.  But you should both understand that children pick up on things and say things that sometimes just totally come out of the blue.  It could come from a Disney movie.  It could come from something from a book.  It could come from anywhere.  My bigger concern is not the child’s affect, whether she said it and the fact that she said it, that was easily addressed.  Rather than lawyering up and litigating the issue – let me say that again.  Rather than lawyering up and litigating the issue, you might want to sit down with your daughter, put her on your lap and say, sweetheart, I’m not going to die any time soon.  I love you.  I’m going to be around, but death is part of life.  We have pets that die.  We have flowers that die.  Mr. Cohen, are you listening?  What I want the parties to do i[s] in these situations, rather than blow this up and run to court and point fingers, the answer to this question, the answer to this issue was [to communicate].

The Commission found that these comments “improperly injected religion into court proceedings, and created an appearance of lack of impartiality . . . .  As the commission has previously stated, ‘The bench is not a pulpit nor soapbox for self-expression.  A litigant is entitled to assume that a judge’s attention will be focused entirely upon the relevant facts of his or her case, and that his or her cause will be judged dispassionately – without consideration of anyone’s religion. . . .”

At the first hearing after the father filed a bankruptcy petition, the judge stated that the father’s attorney “burned [him] every time he [could],” was “not professional,” was “undignified,” and “detracts from the quality of the bar.”  The Commission found that these remarks were undignified, discourteous, and reasonably likely to interfere with the attorney-client relationship.

The Commission also found that the judge had been discourteous and undignified by:

  • “Mocking the father’s name (‘it’s a battle’),”
  • “Accusing the parties of engaging in excessive litigation and of ‘churning fees,’”
  • “Remarking that an attorney was about to ‘come out of [his] underwear,’”
  • “Commenting about the parties ‘lawyering up,’ telling the parties they could ‘bleed out’ and to ‘grow up,’”
  • “Repeatedly referring to the case as ‘contrived,’ stating that it was a ‘nothing case,’” and
  • “Responding to the father’s question about whether he should follow the mother’s orders rather than the doctor’s, by stating, ‘What part of that is hard to understand?’ and ‘What you’re doing is bickering. What that was, that was a challenge to my order now masquerading as some sort of valid question.  No, it wasn’t.  It was just a challenge to the order.  It was bickering.’”

The Commission stated that the judge’s “misconduct was significantly aggravated” because, in 2014, he had received an advisory letter for misconduct in 2 family law matters.

 

“A friendly courtroom environment”

Adopting findings made by 3 masters, the California Commission on Judicial Performance has severely censured a judge for (1) conduct while running for office in 2012, including misrepresentations on his campaign web-site, failing to resign as the officer of 3 political action committees, publicly opposing President Barack Obama’s re-election, and violations of the state’s election laws; (2) after being sworn in as a judge, remaining counsel of record in a federal case for approximately 6 weeks and issuing 4 checks from his law office account; (3) improper courtroom decorum, poor demeanor, bias, and/or a lack of impartiality; (4) improperly responding to a “blanket” challenge from the city attorney’s office; (4) telling an African-American court employee who had participated in a Halloween costume contest that she should not say she “didn’t win due to racism;” (5) stating during a proceeding, “I had a Filipino teacher who always used to ask for a shit of paper;” (6) improperly soliciting the legal opinions of attorneys in cases in which they did not represent a party; (7) giving a small claims plaintiff the choice of dismissing his case and filing it as a civil case or having the judge decide based on evidence that the judge said was insufficient to support his claim of damages; and (8) repeatedly interjecting his personal experience during a small claims case.  Inquiry Concerning Kreep, Decision and order (California Commission on Judicial Performance August 7, 2017).

The Commission and the masters characterized various examples of the judge’s courtroom demeanor as inappropriate, offensive, crude, reflecting bias, discourteous, demeaning, too informal, inappropriately familiar, indecorous, undignified, disrespectful, unbecoming, gratuitous, or insensitive.  Noting that, when he started as a judge, the presiding judge had “told him to create a friendly courtroom environment,” the judge argued that many of his remarks were attempts at humor, that he was “[t]rying to get a laugh” and “put people at ease.”  As in previous cases, the Commission was not persuaded by that defense, explaining:

Creating an accessible and welcoming atmosphere does not include the type of inappropriate remarks made by Judge Kreep . . . .  The commission appreciates that each judge has his or her own style and that a certain level of levity or humor is not necessarily improper.  “However, the cultivation of a particular judicial personality may not be used as an excuse for unethical conduct. . . .  [R]egardless of the judge’s style, she or he must respect the litigants and attorneys who appear in her or his court.”  Moreover, judicial humor should never be used in a courtroom in “a manner that diminishes the dignity of the judicial process.”  “Judges are expected to administer justice and resolve serious issues, not to provide entertainment.”

(Citations omitted).

For example, when Deputy Public Defender Leticia Hernandez appeared before the judge to enter a change of plea in a criminal case, the following exchange took place:

THE COURT:  I love her accent.

HERNANDEZ:  I’m Mexican.

THE COURT:  Are you a citizen of the country of Mexico, Ms. Hernandez?

HERNANDEZ:  No.

THE COURT:  Okay.  Okay.  There is an attorney in town that I know that is actually a citizen of the – of Mexico who does immigration work here in California.

HERNANDEZ:  Oh no, your Honor.  I am a U.S. citizen and proud of it.

THE COURT:  The — I wasn’t planning on having you deported.

The Commission found:

Drawing attention to a person’s ethnicity and questioning a person’s citizenship when these are not issues in the matter before the judge, can reasonably be perceived as offensive and reflecting bias.  Additionally, a judge should be sensitive to the possible impact of such comments on the attorney-client relationship when made in the presence of the attorney’s client.  Judge Kreep maintains that his comments were not meant to be offensive.  However, as noted by the masters, regardless of his intent, “the comments were likely to offend members of the public and could be construed as discourteous, demeaning, or as suggesting bias based on ethnic or national origin.”

The Commission also agreed with the masters’ conclusion that the judge’s “unilateral creation and use of nicknames for attorneys and interns,” such as Bun Head, Shorty, and Ms. Dimples, “was discourteous and did not convey proper respect for them.”  The Commission found that his use of nicknames “created an atmosphere in the courtroom that was too informal and lacked appropriate decorum” and could suggest a lack of impartiality or a sense of inappropriate familiarity.

The judge had also made comments such as, “She’s a pretty girl, you know you could smile,”  and “We’ve got all sorts of very attractive, young PD’s around here, so.”  He said to a defendant, “the lovely attorney next to you went over the form, correct?”  He also referred to a deputy public defender as “the pretty brown one.”  The Commission agreed with the masters’ conclusion that, “Judge Kreep’s comments about the physical appearance of persons appearing in his courtroom were not relevant to the court proceedings, made others in the courtroom uncomfortable, did not afford proper respect to the individuals, diminished the dignity of the judicial process, and may have created the appearance of bias or impartiality.”

The Commission also found that the judge “used language that was crude and undignified.”  The judge had said, for example, “I’ll kick her in the butt,” if a deputy city attorney was late to a hearing.  He told a defendant in an abusive relationship, “Just so you know, ma’am, I grew up in a relationship where I used to get the crap beat out of me on a regular basis by a stepfather [unintelligible] my mother.  So I have some understanding of what you’re going through, okay?  From a child’s perspective.”  The Commission concurred with the masters’ findings:

The words “butt” and “crap” may be relatively tame examples of crude language, particularly when compared to the vulgar language rampant in culture, social media, and entertainment.  But a higher standard of conduct is required in our courtrooms, and for good reason. . . .  Casual conduct and crude language are inconsistent with those requirements. . . .  Judge Kreep’s statements were indecorous and undignified, and in some cases did not convey proper respect for the individuals appearing in his courtroom.

 

 

What they said that got them in trouble in the second half of 2016

In the courthouse

  • “Has anything good ever come out of drinking other than sex with a pretty girl?” Judge during a criminal sentencing.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “What you’ve done with this young girl, it’s a strange thing, routinely done in Afghanistan where they marry 6-year-old girls. In our society, and in the society of the local tribal communities, supposed to be totally forbidden.”  Judge during a criminal sentencing.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “This was not someone who was, and I hate to use the phrase, ‘asking for it.’ There are girls out there that seem to be temptresses.  And this does not seem to be anything like that.”  Judge during a sentencing for sexual abuse of a 14-year-old girl.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “Frankly, I was a little surprised that you still want him to plead to a sex crime when she is apparently not upset at the whole incident, from her testimony.” Judge to defendant charged with providing alcohol to a 14-year-old girl and then engaging in sexual intercourse and oral sexual conduct with her about possible plea disposition while jury was deliberating.  In the Matter of Hafner, Determination (New York State Commission on Judicial Conduct August 29, 2016) (admonishment).
  • “I’m sorry folks, but I can’t slap her around to make her talk louder.”  Judge during a domestic violence felony assault trial, off the record to the jury when inquiring whether they could hear the victim’s testimony.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “You disobeyed a court order knowing that this was not going to turn out well for the State.” Judge in finding the victim in a domestic violence case in contempt for failing to respond to the prosecution’s subpoena to testify at trial.  Inquiry Concerning Collins, 195 So. 3d 1129 (Florida 2016) (public reprimand).
  • “I’m gonna enforce these oaths and they’re enforceable with a 2-year sentence for perjury. And I’d be the sentencing judge.  I also have a medieval Christianity that says if you violate an oath, you’re going to hell.  You all may not share that, but I’m planning to populate hell.”  Judge in a civil trial with unrepresented litigants.  In the Matter Involving Dooley, 376 P.3d 1249 (Alaska 2016) (censure for this and other statements in the courtroom).
  • “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.”  Judge to criminal defendant.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “Brilliant, isn’t he? What he’s got doesn’t ever go away.”  Judge about a defendant.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “You obviously don’t care about the child as much as we do. I want to protect this child.  You obviously don’t.”  Judge to a pregnant criminal defendant who was receiving methadone treatment.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “You should be guilty as charged but [the prosecution is] willing to amend it. You can take it or leave it if you want to have a trial.  I don’t see how you can win it.”  Judge to defendant at an arraignment hearing.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “You need counseling badly, because your kids are suffering.  Not because of him [the father].  Because of you.  Because of you.  Because you don’t see the truth in things. . . .  I don’t believe your children are afraid of their father.  I think they’re afraid of you.  If they’re afraid of anybody, it’s you.”  Judge to mother in family court case.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “Children don’t dump on their parents. It’s elicited, especially with a nine-year-old.  [B.B.] and his mother are pumping this child for dirt on her mother.  You should be ashamed.  You should be truly ashamed, sir.”  Judge to father in family court case.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “He’s exaggerating it. Yeah, terribly.  It’s deplorable.  Do you hear me?  ”  Judge to father in family court case after the father alleged that his ex-wife appeared to have alcohol problems.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “Don’t give me any BS about you have no control over the police department …. You can certainly tell a detective or police officer investigating that on the orders of the DA’ s Office, no arrest is to be made until it is authorized by your office.”  Judge threatening to hold an assistant district attorney in contempt, to declare a mistrial with prejudice, and to impose sanctions if a defendant was arrested for threatening a witness before the trial concluded.  In the Matter of Gary, Determination (New York State Commission on Judicial Conduct October 3, 2016) (admonition).
  • “I remember you . . . I recuse myself from your cases . . . you are the gentleman who yelled at the lady who is now my wife.” Judge to attorney in court in an accusatory and aggressive tone.  Castillo, Order (Arizona Commission on Judicial Conduct February 5, 2016) (reprimand).
  • “[Appealing would make you look like an] idiot and a baby” and would be “pathetic,” “dumb,” “silly,” and a waste of court resources. Former hearing master to assistant district attorney during a hearing after refusing to issue a bench warrant for an errant parent.  In the Matter of Beller, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline August 23, 2016) (reprimand).
  • “And if a prosecutor, someone with the AG’s office, wants to put that person’s case on their disingenuous list of cases that are pending sentencing, that’s a lie from the pit of hell, and that is a fraud on the Fourth [District].” Judge in court about a list of cases that was the subject of a motion to disqualify.  Inquiry re Contini (Florida Supreme Court December 1, 2016) (reprimand for this and related misconduct).
  • “I’ll be right back. Just continue without me.”  And “I’ve never done that before.  It felt good.” Judge before walking out of the courtroom and then after returning.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “Do whatever you want. This is nothing but a cat fight, slinging mud.  I am no longer participating in it.  Have at it.”  Judge to attorneys in family court case.  In the Matter of Stacey, Public Reprimand (Minnesota Board on Judicial Standards July 26, 2016) (reprimand for this and related misconduct).
  • “They don’t indict people.  They leave them sit in the jail forever.  For whatever reason, I don’t have any clue.”  Judge in angry tone, criticizing district attorney during case for failing to move cases expeditiously.  In the Matter of Hafner, Determination (New York State Commission on Judicial Conduct August 29, 2016) (admonishment).
  • “If I talk percentages, the answer would be no. We all know that.  She’s very rarely there.”   Judge when a defendant asked if the other judge was available.  In re Popovich, Public reprimand (Kentucky Judicial Conduct Commission July 7, 2016) (reprimand of former judge).
  • “Have a stroke and die.” Judge to co-judge who was trying to stop him from having an intern arrested for contempt.  In the Matter of Simon, 63 N.E.3d 1136 (New York 2016) (removal for this and other misconduct).

Abusing the prestige of office

  • “I am a judge in this county.”  Judge to police officer who stopped him for speeding and arrested him on suspicion of driving while intoxicated.  Public Admonition of Glicker and Order of Additional Education (Texas State Commission on Judicial Conduct July 12, 2016).
  • “It’s okay, I’m a judge.” Judge while attempting to enter a county-owned building in possession of a firearm, in violation of a local law.  In the Matter of Moskos, Determination (New York State Commission on Judicial Conduct October 3, 2016) (admonishment).
  • “Eddie Elum from the Massillon Court.” Judge in a phone call urging a landlady to accept a tenant’s late rent payment.  Disciplinary Counsel v. Elum (Ohio Supreme Court December 21, 2016) (1-year suspension, stayed).
  • “I personally echo the ringing endorsements contained within the many exhibits attached hereto and respectfully request that USF live up to its National Rating as the Second Most Veteran Friendly College in America.” Judge in letter urging that a defendant over whose case he was presiding in veteran’s court be re-admitted in the University of South Florida.  Inquiry Concerning Holder, 195 So. 3d 1133 (Florida 2016) (public reprimand).
  • “Will you just take me home and forget about the drinking and driving?” Judge to police officer who stopped him for operating while intoxicated.  In the Matter of Garrard, 56 N.E.3d 24 (Indiana 2016) (public reprimand).
  • “I am incidentally in possession of a hard copy of an email from [an attorney] of your firm to [York County Probate] Register Lovejoy in which [the attorney] snidely referred to me as ‘his eminence.’  If that was not meant to be pejorative or disrespectful of me as a jurist and an ethical violation, I request [the attorney’s] full explanation within 10 days from the date of this letter.”  Judge in a letter to counsel regarding a court proceeding in which he was a party.  In the Matter of Nadeau, 144 A.3d 1161 (Maine 2016) (30-day suspension without pay).

False statements

  • “I presently occupy, or intend to occupy, the subject property as my principal residence . . . .” Judge on a mortgage re-financial application even though she resided at a different property.  In re Santiago, Order (Illinois Courts Commission August 18, 2016) (public censure).
  • “Cannon doesn’t think teenage drinking is serious. What else does he think isn’t serious?”  Judicial candidate’s misleading ad criticizing his opponent’s concurring opinion in a court of appeals decision holding that police needed to obtain a warrant before entering a home and searching a party where there was underage drinking.    Disciplinary Counsel v. Tamburrino (Ohio Supreme Court December 7, 2016) (1-year suspension of law license with 6 months stayed).

What they said that got them in trouble in the first half of 2016

The ends do not justify the misconduct

Reviewing a determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for threatening at various times to hold the chief court clerk, case manager, police officers, mayor, village attorney, his co-judge, and others in contempt or have them arrested; being rude and discourteous to court employees and village officials and employees; and permitting a candidate for county executive to quote him in a campaign press release.  In the Matter of Simon (New York Court of Appeals October 20, 2016).  Click here for the Commission’s findings.

On review, the judge conceded his misconduct, but challenged the Commission’s removal determination, arguing that he should be censured but restored to his judicial office.  The Court disagreed, concluding that the misconduct behind his “concession” was “‘truly egregious.’”  The Court noted the judge’s claim that the Commission ignored his theory of the case — that “his motives were to protect the independence and integrity of the court from the undue influence of a corrupt mayor and improve its efficiency.”  However, the Court emphasized, “Even assuming the truth of that representation, the ‘means’ by which petitioner attempted to effectuate those ‘ends’ are unacceptable.”  Those means included repeatedly using “his office and standing as a platform from which to bully and to intimidate” and engaging “in ethnic smearing and name-calling and repeatedly display[ing] poor temperament — perhaps most significantly, by engaging in a physical altercation with a student worker.”  The Court also noted that the judge had, from “a grossly misguided attempt to motivate — repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process.”

The Court concluded:

All of the foregoing actions reflect a pattern of calculated misconduct that militates against petitioner’s assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench.  Petitioner’s misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct — all of which renders suspect his guarantees of better behavior.

In another recent New York case, accepting an agreed statement of facts and joint recommendation, the New York Commission admonished a judge for yelling and acting discourteously toward the assistant district attorney and threatening to hold the assistant district attorney in contempt, to declare a mistrial with prejudice and to impose sanctions on the district attorney’s office if a defendant was arrested for threatening a witness before the trial concluded.  In the Matter of Gary, Determination (New York State Commission on Judicial Conduct October 3, 2016).  During the Commission investigation, the judge had testified that his threats had been motivated by his concerns to conclude the case, avoid a mistrial, and spare the young victim from having to testify again at a retrial.  The Commission concluded, however, that the judge’s concern to avoid a mistrial did not justify baseless threats of contempt and sanctions against an attorney and that the fact that he did not act on his threats did not excuse the misconduct.  The Commission emphasized, “regardless of whether he intended to follow through on the threats he made, the threats were inappropriate since he had no lawful basis to act on them.  Such statements to a prosecutor — especially by a judge who ‘yelled’ and spoke in ‘a raised voice’ — are highly intimidating and could only be perceived as a serious warning of very significant consequences, including a mistrial with prejudice in a case involving a serious crime.”

 

Treatment of domestic violence complainants

In 2 recent cases, judges were disciplined for imposing sanctions on complaining witnesses in domestic violence cases who failed to carry through with the prosecution of their complaints.

Approving a revised consent judgement, the Florida Supreme Court publicly reprimanded a judge for finding the victim in a domestic violence case in contempt when she failed to respond to the prosecution’s subpoena to testify at trial, being discourteous and impatient toward the victim, and creating the appearance of partiality toward the state.  Inquiry Concerning Collins (Florida Supreme Court July 7, 2016).  The Court also ordered the judge to complete an anger management course and attend a domestic violence course.

In a criminal domestic violence case over which the judge presided, the victim failed to respond to the state attorney’s subpoena to testify in the trial against her abuser.  As a result, the state was unable to proceed with the trial and dismissed a charge of dangerous exhibition of a weapon; the defendant accepted a plea to a reduced charge of simple battery.

The judge issued an order to show cause why the victim should not be held in contempt of court.  When the victim appeared, the judge instituted direct criminal contempt proceedings against her even though she was not represented by counsel or advised of her right to present evidence or testimony.

The victim was distraught and apologized for failing to appear, citing anxiety, depression, and a desire to move on from contact with her abuser.  The judge was discourteous and impatient, raising her voice, using sarcasm, speaking harshly, and interrupting the victim.  After pressing the victim about the veracity of her statements to police, the judge rebuked her, declaring, “You disobeyed a court order knowing that this was not going to turn out well for the State.”  When the victim stated that she was “not in a good place,” the judge responded, “and violating a court order did not do anything for you.”  The judge found the victim in contempt and sentenced her to 3 days in jail even though the victim pleaded that she needed to take care of her 1-year-old child.

The judge explained her good faith belief that she was exercising appropriate legal authority but acknowledged that she should have been more patient and used less inflammatory and sarcastic language and a less aggressive tone.  The judge accepted full responsibility and expressed remorse that her intemperate conduct brought unnecessary criticism upon her court and the entire judiciary and could impair the public’s perception of the fairness and impartiality of Florida’s justice system.

Following a hearing, the Kentucky Judicial Conduct Commission reprimanded a judge for ordering a domestic violence complainant jailed after she recanted her testimony.  In re Collins, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission April 22, 2016).

One afternoon, the judge presided over a bond reduction hearing in a case in which the defendant was charged with domestic violence for allegedly assaulting Jasmine Stone.  During the hearing, Stone recanted her allegations against the defendant.  Over the objection of the prosecution, the judge immediately ordered a deputy sheriff to take Stone into custody, directed the prosecutor to charge Stone with making false statements, and set a $10,000 cash bond.

About an hour later, the prosecutor formally asked the judge to release Stone based on information that the defendant had pressured her to recant; the prosecutor also indicated that the prosecution did not intend to proceed against Stone for making false statements.  However, the judge refused to lower the bond or release Stone from custody.  A writ of habeas corpus was filed on Stone’s behalf; the circuit court denied the writ but vacated the bond, and Stone was released from custody later that afternoon.

The Commission found that the judge failed to afford Stone rudimentary due process rights and set bond even though the judge was the complaining witness, noting “bond is to be set by a detached Magistrate, not one who orchestrated the filing of the criminal charge in the first place.”  The judge admitted that she made a mistake but argued it was not made in bad faith because she “could have placed this lady in jail for contempt of Court.”  However, the Commission found “nothing that this witness stated could in any way be considered direct criminal contempt of Court.”

By the Respondent’s own testimony and as seen from the video tape of this encounter, the Respondent acknowledged she did not know what was true and a hearing needed to be conducted with the presence of a police officer who was on the scene in order for the truth to be determined.  If the Respondent needed a hearing in order to determine the truth then in no way could the witness who was questioned by the Court without being advised of her right against self-incrimination and without being afforded counsel be considered to be in direct criminal contempt of the Court or any Order it entered.  The witness may well have committed false swearing, but that does not provide a Court with the ability to punish such a person for direct criminal contempt.

The Respondent should never have directed the Sheriff to take this witness into custody and to charge the witness with a crime.  That is not the role of the Judiciary.  That is the role of the duly elected prosecutorial authorities . . . .

In 2011, pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for summarily holding a domestic violence complainant in contempt after she recanted a statement she had given to the police.  In re Shelton, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct July 8, 2011).  The judge also agreed to attend training on domestic violence within a year.

Very early one morning, the police arrested a defendant on the complaint of C.A. that he had threatened to hit her with a belt.  At approximately 11:00 a.m. on the same day, C.A. went to the police department and, in a new statement in a supplemental police report, indicated that she had lied to the police at the scene because she was afraid of being arrested.

At approximately 1:00 p.m., the judge presided over the defendant’s arraignment.  After preliminary advisements, the defendant indicated his intention to plead guilty.  As the prosecutor submitted the signed agreement and police reports to the judge, the prosecutor directed the judge’s attention to the supplemental police report.  After considering the situation and reviewing the records, the judge found probable cause but declined to accept the defendant’s stipulated plea and waiver of trial and counsel.  Instead, the judge announced he would set the matter over to a pretrial conference so the parties would have the opportunity to consider the supplemental police report.

After hearing this announcement, C.A. asked the judge if she could make a comment.  The judge stated, “No ma’am, you can have a moment in a minute, trust me.”  After a brief pause, the judge directed C.A. to stand and summoned the court bailiff to handcuff her.  The judge explained:

Okay, I’m going to go ahead and give [the defendant] an opportunity to maintain all of his rights, that’s why I’ve not accepted his plea.  I’m going to, at this point in time, find you [C.A.] in contempt of court because you have written a second statement stated, ah, stating you “called the police, they came and I lied and said [the defendant] had threatened me, which is untrue.  I want to recant my statement, I was frightened and afraid I would be arrested.”  I’m gonna find you in contempt of court.  I’m gonna impose a day in jail.  So you’ll be released in the morning.  This gives the City an opportunity to further review the case and if [the defendant] is still in custody on Monday, then I’ll certainly be reviewing his case at pre-trial.  If he’s able to post bail, then he will still be scheduled to come to court on Monday afternoon.  It’s the order of the court.  Thank you, gentleman.

C.A. was taken from the courthouse and booked into the jail; she spent the night in jail and was released from custody the following morning.

In answering the Commission charges, the judge explained that he had reasoned that, given the serious nature of domestic violence and his concerns for preserving the integrity of domestic violence laws, it was necessary to take C.A. into custody to “preserve the order, authority and dignity of the court,” because ignoring her admission that she had lied might imply that the court was not able or willing to take action when false statements impact judicial proceedings.  The judge also explained that he did not provide C.A. an opportunity to speak in mitigation because he was concerned that she might incriminate herself and based on his interpretation of the compelling circumstances exception in the contempt statute.

The agreement stated that C.A.’s conduct did not occur within the courtroom and was not directed at the court or judge and, therefore, did not fall within the definition of contemptuous behavior, that the judge’s decision to jail C.A. overnight was not necessary to preserve order in the court or to protect the authority and dignity of the court, and that the judge failed to comply with the statutory procedural requirements by failing to issue a written order and to provide C.A. an opportunity to speak.  The judge agreed that his reasoning was erroneous and that his prior experience as a prosecutor and judge involved with domestic violence issues caused him to over-analyze the situation.

The agreement noted that the judge’s demeanor was calm and his language was not insulting or offensive.  However, the agreement also noted that his conduct was significantly injurious because jailing C.A. overnight impermissibly violated her liberty interest and right to due process.  The agreement stated:

Although C.A. may have been implicated in the crimes of domestic violence assault and providing a false statement to a public servant, those potential criminal charges were not properly before the court, nor is it within the court’s authority to file criminal charges.  C.A. entered respondent’s courtroom as a purported victim of domestic violence, and was therefore owed a heightened degree of respect and protection by those who administer the criminal justice system, as is codified in Washington Crime Victim’s Bill or Rights.

 

Clear erosion of public confidence

Since the June 20014 videotape of Judge John Murphy threatening to commit violence against an assistant public defender went viral, the only question has been the appropriate sanction; the judge admitted the facts and was remorseful about his misconduct, which also included resuming his docket while defendants were without counsel.  The hearing panel of the Judicial Qualifications Commission recommended that he be suspended without pay for 120 days, publicly reprimanded, fined $50,000 plus costs, and required to continue to participate in a mental health therapy program and to complete judicial education courses.  The Florida Supreme Court disagreed, however, and last week removed him from office.  Inquiry Concerning Murphy (December 18, 2015).

On June 2, 2014, the judge had a verbal altercation with assistant public defender Andrew Weinstock after Weinstock refused to waive speedy trial for his client.  The judge stated, “You know if I had a rock, I would throw it at your [sic] right now.  Stop pissing me off.  Just sit down.”  When Weinstock refused to sit down, asserting his right to stand and represent his clients, the judge shouted, “I said sit down.  If you want to fight, let’s go out back and I’ll just beat your ass.”  The 2 men left the courtroom and met in the hall.

Although there is no video of the events in the hallway, the courtroom audio captured the judge remarking, “Alright you, you want to fuck with me?” and sounds of a scuffle.  A deputy separated them.  Weinstock requested that the judge be arrested for hitting him twice in the face, but no arrest was made.  There was no evidence, other than his testimony, that Weinstock had been hit.  The hearing panel found that there was no clear and convincing evidence that the judge struck Weinstock and could not determine which of them initiated physical contact.

The Court noted it examined judicial misconduct for present fitness to hold office “’from two perspectives:  its effect on the public’s trust and confidence in the judiciary as reflected in its impact on the judge’s standing in the community, and the degree to which past misconduct points to future misconduct fundamentally inconsistent with the responsibilities of judicial office.’”  It concluded:

Focusing first on the effects on the public’s trust in the judiciary, we must conclude that Judge Murphy is not presently fit to serve.  Judge Murphy used profanity in an open courtroom and threatened violence against an attorney appearing before him.  This is the sort of egregious conduct that erodes the public’s confidence.  It is without question that except for the June 2, 2014, incident, Judge Murphy has been a good judge.  Notwithstanding his prior judicial performance, Judge Murphy’s total lack of self-control became a national spectacle—an embarrassment not only to the judge himself but also to Florida’s judicial system.  Given the clear erosion of public confidence in the judiciary caused by his misconduct, removal is an appropriate sanction.

* * *

On June 2, 2014, Judge Murphy threatened an assistant public defender with violence in open court, challenged him to a physical fight, engaged in the threatened struggle in which the two men had to be physically separated by a deputy, and reassumed the bench to handle cases where the defendants were without the presence of their attorney.  Because of Judge Murphy’s appalling behavior, we conclude that there is clear and convincing evidence that Judge Murphy engaged in “conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office.” . . .  Judge Murphy’s conduct is fundamentally inconsistent with the responsibilities of judicial office and necessitates his removal.  “[T]hrough his own actions culminating in the misconduct in this case, Judge [Murphy] has lost the public’s confidence in his ability to perform his judicial duties in a fair, evenhanded, and even-tempered manner.”

The Murphy case will no doubt be one of the “Top Judicial Ethics Stories of 2015” discussed during a free webinar presented on Friday January 15, 2016, from 12:00 p.m. to 1:00 p.m. central time by the National Center for State Courts Center for Judicial Ethics.  The webinar will review the 2015 cases and developments in judicial ethics and discipline that grabbed the headlines and illuminated current and recurring issues in judicial conduct, including Facebook and e-mail, campaign fund-raising, gay marriage, and appropriate sanctions.  SpeakersColin Winchester, Executive Director, Utah Judicial Conduct Commission * Cynthia Gray, Director, Center for Judicial Ethics, National Center or State Courts.  The webinar is free, but you must sign up ahead of time.  Click this link to sign up: https://attendee.gotowebinar.com/register/1087418470610271489.  If you have any questions, contact Lauren Roberts at lroberts@ncsc.org.

 

Courtesy, communication, and consideration

A recent judicial discipline case emphasizes that the judicial courtesy required by the code of judicial conduct includes respect for people’s time.  A Special Court of Review Appointed by the Texas Supreme Court reprimanded a former judge for, in addition to other misconduct, a pattern of leaving the bench and failing to communicate with counsel and defendants about when or whether she would return.  In re Mullin, Opinion (Texas Special Court of Review October 21, 2015).  Following a de novo proceeding, the reprimand was an increased sanction from the admonition imposed by the State Commission on Judicial Conduct.

The judge often “left the bench with matters still to be heard” and “those remaining in the courtroom could not discern whether to go (as waiting would be futile) or stay (because the judge might return, though no one could say when).  If the lawyers stayed, they would have to forgo attending to other matters and clients.  If they left to attend to other courthouse business, they would risk not being in the courtroom if the respondent returned to the bench, in which case they would have to reschedule the matters in the respondent’s court and return to face the same problem another day.”

The judge testified there were times she had to get off the bench to take a break, to speak with another judge or lawyer in chambers, or to greet jurors, and she once had to leave during a jury trial when her mother had to be rushed to the hospital.  The Court noted “judges are permitted to leave the bench for all of these reasons and many more, as taking breaks is a matter within the judge’s discretion.”

However, it explained:

The first principle of courtesy is consideration of others.  Though a judge need not disclose why she is leaving the bench or what she will be doing while she is gone, common courtesy requires a judge to let those waiting to be heard know whether and when she anticipates returning.  By persistently leaving the bench for extended periods of time without communicating this basic information to those in attendance, the respondent showed a lack of consideration for court-goers and thus failed to act with the courtesy expected of a judicial officer. . . .

With respect to other delays and inefficiencies in the judge’s court, the Court noted that, “even if the judge’s choices produce delays and inefficiencies, the decision to choose one process or procedure over another generally does not constitute a dereliction of judicial duty that subjects the judge to discipline.”  However, it also criticized the lack of information generally available in the judge’s court.

Our legal system is best served when the trial judge manages expectations by communicating with those who come before the court about the timing and scheduling of events that are under the judge’s exclusive control, so that court-goers may plan accordingly.  Taking this simple measure shows consideration for others and reflects the type of professional courtesy expected of a Texas judge.

The respondent testified that when she took office she inherited a busy court, took a hands-on approach, worked hard, and through her efforts was able to significantly reduce the number of pending cases.  Assuming that the respondent’s characterization of her record is accurate, it does not excuse the lack of consideration for court-goers, who, as a matter of course, were subjected to lengthy wait times, delays in resolution of pending matters, and multiple court appearances because of the respondent’s failures.  Lawyers need to be able to explain the legal process and proceedings to their clients and to advise them of the likely costs and timetables of the proceeding.  Time estimates aid planning by helping court-goers to form realistic expectations about what is involved in a particular court appearance and about how long it should take so that they can make arrangements with employers, childcare providers, schools, and the like, and ensure transportation to and from the courthouse.

Similarly, a previous post noted several recent discipline cases illustrating that lengthy court session also demonstrate a lack of the judicial temperament.