Favorite word and adequate funding

Accepting the parties’ proposed resolution and stipulation that the Judicial Inquiry Commission could establish by clear and convincing evidence the allegations in its complaint, the Alabama Court of the Judiciary suspended a judge for 45 days without pay and publicly censured him for (1) before, during, and after court proceedings and in court orders, subjecting attorneys, litigants, jurors, and court staff to inappropriate demeanor and temperament; and (2) declaring statutes regarding court fees unconstitutional and issuing an order redirecting court funds to address budget concerns.  In the Matter of Patterson, Final judgment (Alabama Court of the Judiciary October 27, 2022).

(1) On multiple occasions, the judge made highly inappropriate comments to or in front of attorneys, litigants, jurors, and court staff while on the bench and/or during official court proceedings.

The judge referred to Governor Kay Ivey as “Governor MeMaw” on multiple occasions and often referred to the State’s prison system as “Governor MeMaw’s prison system.”

In front of attorneys and staff, the judge referred to the circuit’s presiding judge as a “G*d d*mn snowflake,” and later as a “snowflake.”

While on the bench during proceedings and in the courtroom, the judge used cuss words and/or profanity before attorneys, litigants, jurors, and court staff.  According to his former court reporter, the judge used “a*s” all the time in court as if it was his favorite word.  After the conclusion of court proceedings, but still in the courtroom, the judge used “sh*t” and “f*cking” in conversation with assistant district attorneys and public defenders although he did not direct the cuss words at them.  The judge constantly referred to the circuit’s financial state as “dead a*s broke” and “broke a*s” even in orders.

While addressing a jury pool that included an Asian American, the judge used an Asian accent and asked if everyone spoke “Engrish.”  The judge immediately apologized to the jury pool, later characterizing the comment as a “stupid, stupid joke.”  He also apologized on Facebook:

Yesterday, while qualifying the jury pool, I made a joke in very poor taste about whether everyone could speak English.  I immediately recognized and apologized for my blunder, and I do so again.

When speaking with attorneys, the judge has referred to himself as “Prison Patterson” and “Judge Hard-a*s.”

In court, the judge referred to defendants being “somebody’s girlfriend” while they are incarcerated.  When covering another judge’s docket, the judge said more than once to defendants that they would be “butt raped in the penitentiary.”

(2) After Mandy Brady did not show up for a jury trial before the judge because she had mistakenly been released from custody, the judge ordered the circuit court clerk and the jail warden to show cause why Brady had been released from custody.  In his order, the judge stated that the circuit is in an “austere funding environment,” the clerk’s office is understaffed, and it costs the judicial system $4,000 for a 300-person jury venire to appear at the courthouse.  He continued:

Thus, when this court ensures that bond is revoked, and when a defendant is already in custody when her bond is revoked, I am wondering why and how she is not here today—and again, we are wasting valuable resources when jurors are here ready to go and the accused is not.

At the show-cause hearing on September 12, the judge found that the circuit court clerk was not reasonably or adequately funded as required by the state constitution, that that underfunding had caused the inadvertent release of a defendant who was a danger to citizens of the circuit, and that the clerk “is in imminent danger of not fulfilling her constitutional and statutory duties to support” the courts.  Therefore, the judge held, “Any state statute or act that charges litigants in Mobile County Alabama any fee involving litigation, which then takes funds away from this county leaving the Clerk and her staff underfunded . . . is unconstitutional as applied.”  The judge ordered the circuit court clerk to withhold 10% of court fees and costs collected until the state adequately and reasonably funded the circuit clerks’ office.

The judge had not given notice to the Alabama Attorney General that the constitutionality of state acts and statutes would be an issue at the show-cause hearing.  On receiving notice of the judge’s order, the attorney general filed a petition for a writ of mandamus.  The Alabama Supreme Court granted the writ, finding that the judge had gone “far beyond [his] authority to conduct a contempt proceeding.”

In addition to the suspension and censure, the judge was ordered to refrain from joking or other inappropriate or offensive colloquies with litigants, attorneys, or court staff while in the courtroom; to refrain from profanity and off-color language in the courthouse including in chambers or other private settings; to complete 15 hours of education on judicial ethics to include at least 3 hours of training focused on cultural sensitivity; to review weekly emails forwarded to him by the Judicial Inquiry Commission from the Center for Judicial Ethics for 6 months; and to meet with another judge as a mentor monthly for 6 months.

“A huge unknown called ‘Court'”

Based on an agreement that included the judge’s resignation and agreement to never seek judicial office in the state, the West Virginia Judicial Investigation Commission publicly admonished a former judge for (1) in in camera interviews of 2 girls whose father had been accused of sexually abusing them, calling the 7-year-old girl a liar and suggesting that the 6-year-old girl had taken part in a “sinister plan;” (2) spending thousands of dollars for improper purposes; and (3) pulling out a gun and showing it in the courtroom.  In the Matter of Hummel, Public admonishment (West Virginia Judicial Investigation Commission December 2, 2022).

(1) On July 28 and August 18, 2020, the judge presided over a hearing on allegations that 2 minor girls had been sexually abused by their father, which were made in a petition filed by the state Department of Health and Human Resources.  At least 3 witnesses testified that the girls had been consistent in their reports of the alleged abuse, and the record included video-recordings of the girls’ interviews with the child advocacy center.

The judge held in camera interviews with both girls, with only members of his staff and the guardian ad litem also present.  The Commission found that both girls were reluctant witnesses who were “easily distracted during their respective interviews;” the elder girl indicated at the beginning of her interview that “she did not want to discuss the allegations,” and both girls hid under a table in the judge’s chambers at times.  During the interview, the judge repeatedly accused the elder daughter, then age 7, of lying, which “brought her to tears.”  The judge concluded that the younger daughter, then age 6, “had implicated the mother in a ‘sinister’ plot to falsify allegations against the father even though the judge was the first person to use the word ‘plan’ when questioning the little girl.”

After the interviews, the judge held that the girls had not been abused or neglected and dismissed the petition without making the findings of fact and conclusions of law required by statute.  In March 2021, the West Virginia Supreme Court of Appeals remanded the matter to the judge with instructions to “forthwith issue a new order containing the findings of fact and conclusions of law necessary to establish whether the children were abused and/or neglected.”

In a revised final order in April 2021, the judge held that there was no clear and convincing evidence of any abuse or neglect by the father  and dismissed the action from the active docket.

On appeal, the Supreme Court vacated the judge’s order and remanded the matter to a different judge for further proceedings.  The Court found that the manner in which the judge interviewed the girls violated the protection from psychological harm afforded by the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the rules of evidence, and established caselaw.  The Court concluded that the judge not only failed to protect the older girl from harassment but had “perpetrat[ed]” the harassment by repeatedly accusing her of lying and leaving her in tears.  The Court explained that, “[e]ven assuming, arguendo, that [the elder girl’s] bursting into tears was an acceptable risk in taking the child’s testimony, we cannot conceive of any reasonable method or purpose of questioning a child which involves openly and directly accusing the child of lying.”  With respect to the younger child, the Court found that the judge erred in asking her “leading questions that cause a reviewer to question whether they were calculated to confirm a pre-existing suspicion rather than elicit truthful testimony.”

The Commission concluded that the judge “knew or should have known better.”  It explained:

He is a longtime lawyer and former assistant prosecutor.  At the time of the incident, he was a seasoned veteran of the Court.  He had absolutely no business calling a child of tender years a liar or suggesting to an impressionable six-year-old that she had engaged in some “sinister plan” regarding her father. . . .  When dealing with young children, judges should remember at all times that they are not wooden toys that can be repaired with ease.  They are living beings with thoughts and feelings who are coming into a huge unknown called “Court” to talk to what the child may perceive as a scary individual called “Judge” and must be treated with charity, understanding and patience.

(2) In 2019, the judge asked the 3 county commissions in his circuit to reallocate $15,000 to fund a case coordinator at a private mental health facility for adult drug court or to provide new funding and also asked for an additional $15,000 each for other adult drug court expenses.  The 3 county commissions agreed and provided $30,000 each for a total of $90,000.

The Commission found that, “Unbeknownst to the County Commissions,” in 2019 and 2020, the judge requested and received half of that money back from the mental health provider and improperly placed it with a general receiver, even though a court rule provides that a receiver may only be appointed in a pending case.  The judge had direct control over the money and used thousands of dollars from the funds for improper purposes.

(3) In April 2013, the judge, as chief judge, entered an order allowing all judicial officers to possess a firearm in the courthouse but directed that they “take reasonable and necessary measures to ensure that any firearm he or she may possess on the aforesaid premises is concealed such that same is not displayed.”

During a rare Saturday hearing in a civil case on March 12, 2022, the judge removed a firearm from where it was concealed on his person, put it on the bench in open view for the remainder of the proceeding, and at one point, “picked up the gun and displayed it for all to see.”  His act was captured on court security video.  The incident went viral in the national news.  (See, e.g., “A Judge Pulled a Gun in the Courtroom—and Then It Got Weird,” The Daily Beast (July 15, 2022); “West Virginia judge accused of waving pistol at defense lawyers and mocking security team for having smaller guns,” NBCnews.com (July 15, 2022).

The Commission found that it was hard to believe that a judge would “violate his own administrative order but that is what Respondent did when he pulled out a gun and showed it in the courtroom.  It is no wonder to this Commission that his conduct resulted in nationwide publicity.  He not only humiliated himself but he also caused great embarrassment to the court system as a whole . . . .”

“A pattern of objectionable behavior”

The Alabama Supreme Court affirmed the decision of the Court of the Judiciary removing a judge from office for (1) engaging in a pattern of racist demeanor; (2) engaging in a pattern of sexually inappropriate demeanor; (3) expressing anger inappropriately and using profanity in the probate office; and (4) requesting that 2 attorneys who regularly practiced before him help a woman secure an early release from her sentence and using probate-court letterhead and his judicial title to seek financial help for a friend.  Jinks v. Judicial Inquiry Commission (Alabama Supreme Court October 21, 2022).  The Court of the Judiciary had held a hearing on the complaint filed by the Judicial Inquiry Commission.

Darrius Pearson, one of 2 African Americans employed in the probate office during the judge’s tenure, testified that he had heard the judge make inappropriate racial comments.  Pearson also testified that the judge stated to him, referring to a new vehicle that Pearson had recently purchased:  “I seen that car.  I can’t even—I’m the judge and I can’t even afford a Mercedes.  What you doing, selling drugs?”  The judge made the comment in the main area of the probate office, and it was overheard by other probate office employees.  In his answer, the judge admitted making this statement to Pearson, but denied that it was racist or contained racial innuendo.

Employees testified that in discussing the murder of George Floyd ,the judge had said, “he [didn’t] see why everybody was so upset about him getting killed,” and he “didn’t understand what the big deal was.  It was just one person.”  The judge was overheard in a telephone conversation discussing a meme depicting Black Lives Matter protests with the caption:  “Y’all got to quit burning s*** down because … you son[s]-of-b**ches is …going to need something to burn down after Trump gets re-elected for a second term.”  In his answer, the judge admitted making the comment and stated that, although he made it during a private and personal conversation, it should not have “been overheard in the workplace.” 

Probate office employees testified that, on multiple occasions, the judge referred to African Americans as “they,” “them,” or “those people.”  One employee testified that, after she had assisted an African-American couple with a marriage license, the judge asked her:  “What did their black a**es want?”  The probate office’s deputy chief clerk testified that, on one occasion, the judge mouthed the N-word to her.  An attorney testified that, when he was in the judge’s chambers before a hearing, the judge asked him if he knew what P-O-N-T-I-A-C stood for, a reference to a racist meaning that includes the N-word.  The attorney immediately stopped the judge and said:  “Whoa, I don’t think we need to go there.”  After the Commission filed its complaint, the judge appeared on a morning talk show on a local television station to address the allegations and admitted the exchange with the attorney, but stated that “if I share a racial slur with you that I’ve learned, that’s not using a racial slur.”

According to Pearson, he and the judge were working in the basement of the courthouse one day when the judge received a video on his cell phone.  The judge then stated to Pearson:  “[D]on’t tell nobody but look at this.”  Pearson momentarily looked at the video, which depicted women dancing with their breasts exposed.  Pearson testified that he refused to watch the rest of the video but that the judge sat down and continued to watch.  During his appearance on the talk show, the judge admitted that showing Pearson the video was a lapse in judgment but stated that “it was two guys” together.

One day when the judge discovered that a brown paper bag with a sandwich and produce he had previously placed in the office refrigerator was not there, he “exploded in a tirade, slamming the refrigerator door and exclaiming loudly:  ‘We have a damn thief in this office.  I can’t have s*** in this office.’”  The judge angrily “stormed off” and went to the office of the chief clerk, and proclaimed that they were going to have a staff meeting because someone had stolen his sandwich.  A few days after the incident, in a lengthy email to probate-office staff at 1:03 a.m., the judge again expressed his anger and resentment about the sandwich being “stolen.”

The Court emphasized that the Court on the Judiciary had heard the testimony and observed the witnesses, and “viewing the evidence in a light most favorable to the [Judicial Investigation Commission] as we must,” it concluded that the decision was  supported by clear and convincing evidence.  The Court explained:

The record indicates that Judge Jinks made multiple racist and racially insensitive comments, engaged in inappropriate sexual conduct, engaged in inappropriate acts of anger and use of profanity, and, on several occasions, used the prestige of his office for the benefit of others.  Those acts were not isolated but occurred on a number of occasions while Judge Jinks was in the probate office acting in his capacity as the probate judge.  Those acts were numerous enough to establish a pattern of objectionable behavior on the part of Judge Jinks.

“Unprecedented misconduct”

Adopting the findings of the Board of Professional Conduct, which were based on stipulations, the Ohio Supreme Court indefinitely suspended a judge without pay for (1) refusing to comply with an administrative order during the COVID-19 pandemic, issuing capias warrants to defendants who did not appear in court, and lying about issuing the warrants to the press and to the presiding judge; (2) in numerous criminal cases, engaging in ex parte communications and improper plea bargaining with defendants, rendering arbitrary dispositions, unilaterally amending the charges and falsely attributing those amendments to the prosecutor, and falsely stating that she had conducted ability-to-pay hearings; (3) using capias warrants and bonds to compel payment of fines and court costs; (4) exhibiting a lack of decorum and dignity, including in her attire, her “unkempt bench,” and her demeaning treatment of defendants; and (5) abusing her contempt power after becoming personally embroiled with a defendant.  Disciplinary Counsel v. Carr (Ohio Supreme Court October 18, 2022).  The judge’s reinstatement is conditioned on her submission of a report from a healthcare professional stating that she is able to return to the competent, ethical, and professional practice of law and proof of compliance with her Ohio Lawyers Assistant Program contract. 

The Court emphasized:

Carr’s unprecedented misconduct involved more than 100 stipulated incidents that occurred over a period of approximately two years and encompassed repeated acts of dishonesty; the blatant and systematic disregard of due process, the law, court orders, and local rules; the disrespectful treatment of court staff and litigants; and the abuse of capias warrants and the court’s contempt power.

The judge argued that a mental disorder was a contributing cause of her misconduct, specifically, a generalized-anxiety disorder and a mood disorder due to menopause, sleep apnea, and stress.  Although the Board accepted her psychologist’s diagnoses and treatment recommendations, it found that the judge “had failed to establish a causal link between her current mental disorders and her past misconduct. . . .”

(1) For a longer discussion of the judge’s misconduct related to the COVID administrative order, see last week’s post

(2) In 34 cases between May 2019 and December 2020, the judge engaged in ex parte communications and improper plea bargaining with defendants and made arbitrary rulings.  In at least 6 of the 34 cases, the judge unilaterally amended the charges against the defendants and in her judgment entries, falsely attributed those amendments to the prosecutor.  In at least 24 of the 34 cases, the judge falsely stated in journal entries that she had conducted ability-to-pay hearings and determined that the defendants were unable to pay fines or costs.

The judge admitted that she routinely conducted hearings without a prosecutor present to avoid complying with procedural safeguards.  In open court, the judge “unabashedly” told her staff one day, “[T]he prosecutor isn’t here.  Let’s see how much we can get away with,” and on another occasion, told a defendant, “Well the prosecutor isn’t here, so we need to get as many of these done before he or she gets here . . . .”  She then offered the defendant a plea deal that he accepted. 

The judge unilaterally recommended pleas to unrepresented defendants when no prosecutor was present and accepted the pleas without explanation or a discussion of the consequences.  After unilaterally entering no-contest pleas, the judge routinely found the defendants not guilty or after finding the defendants guilty, arbitrarily waived fines and costs without any inquiry into the defendant’s ability to pay, falsifying her journal entries to conceal her actions.  The judge frequently stated that she was waiving fines and costs because the defendant’s birth date was close to the date of the hearing, a holiday, her own birthday, or the birth date of a family member or friend.

(3) After being told that the clerk’s office had a very low success rate collecting fines levied by the court, the judge began using capias warrants and incarceration to compel payment, which, as she admitted in the disciplinary hearing, “essentially created a modern-day debtors’ prison.”  The judge would set ability-to-pay hearings for a few days after a defendant’s payment was due without notifying the defendant.  Then when the defendant failed to appear for the hearing, she would issue a capias warrant and set a bond between $2,500 and $25,000 even though the defendant’s fines and costs were typically just hundreds of dollars.  She would write on the journal entry, “Post bond or pay fines and costs in full.  No [Community Work Service]/TTP.”  She would also stamp on the journal entry “DEFENDANT DOES NOT QUALIFY FOR IN THE NEIGHBORHOOD OR OVER THE COUNTER.  JUDGE PINKEY S. CARR.”

(4) The judge’s bench was covered with “dolls, cups, novelty items, and junk.”  She presided over her courtroom wearing workout attire, including tank tops, t-shirts (some with images or slogans), above-the-knee spandex shorts, and sneakers.  The Board found that the judge “reveled in her lack of decorum,” knowing “that “the public took notice of her unconventional appearance.”  For example, when a defendant expressed surprise that he had been found not guilty, the judge responded, “You can trust me.  I know I’m not dressed like a judge, but I’m really the judge.”

The judge was loud and boisterous, used a singsong tone, and on at least one occasion, used a really loud voice when speaking to a defendant.  During a series of proceedings in open court, the judge maintained a dialogue with her staff and defendants about the television series P-Valley, which is set in a strip club. 

The Court noted that, although the judge “frequently behaved as though the rules of courtroom decorum did not apply to her, she did not hesitate to correct defendants for seemingly minor infractions.”  She repeatedly admonished defendants for standing with their hands crossed or in their pockets instead of at their sides and screamed at them when they indicated that they had not heard what she said.  She resented being called “ma’am,” berating defendants who used that honorific and chastising male defendants who referred to her as “ma’am” by calling them “little boy.”

On multiple occasions in open court, the judge joked that she would be open to some form of bribe in return for a lenient sentence and talked with defendants about accepting kickbacks and arranging “hookups” for herself and her staff.  For example, when E.W. appeared before the judge to request reinstatement of his driving privileges, after being informed that E.W. worked for an automotive company, the judge told her staff, “I got us another hookup.  We could get our cars fixed here,” and she stated that she had already gotten them some flooring and carpet.  E.W. told her to bring their cars in and that the company would love to take care of them.  The judge replied, “Always getting us the hookups.  Don’t worry, we don’t have to pay.  It’s on him.”

(5) In May 2019, 20-year-old A.B. and her 19-year-old sister C.B. were arraigned before the judge on misdemeanor counts of assault and disorderly conduct for allegedly assaulting a 16-year-old girl.  The Board found that the video of the arraignment demonstrated that the judge “took an immediate dislike to A.B.”

The judge told the public defender representing the sisters that A.B. “is going to get plenty of time with me.”  While the public defender conferred with her clients, the judge gave a monologue in a singsong voice about how nice it would be to have “company” in her courtroom, and she expressed her hope that A.B.’s case would be assigned to her.  She paused from time to time to laugh or hum a tune.

A.B. muttered something to the deputy, and the judge snapped, “What did she say?  She said this Court is f***ked.  What did she say?  Oh, okay.  Corny as f**k.  Okay, corny as f**k.”  A.B. responded, “I said corny the way you’re treating me.  Like, I didn’t do—.”  The judge interrupted her, saying, “Oh, no problem.  Uh-huh.  Close your mouth.  Don’t interrupt my courtroom.  You don’t want to have a problem with me.  I told you that when—.”  At that point A.B. said something else.  The judge raised her voice and twice told A.B., “Close your mouth.”  As A.B. continued to talk, the judge said, “Say one more thing,” and then to her bailiff, “Take her in the back for me, please.  Uh-huh.  Bye bye.”

A.B. left the courtroom in tears and remained in the lockup area for several hours until the judge had her brought back to the courtroom.  At that time, court staff informed the judge that while in the holding cell, A.B. had repeatedly referred to the judge as a “b**ch” so loudly that another judge had to close his courtroom doors.

When the public defender encouraged A.B. to speak, A.B. said, “It doesn’t matter.  You don’t care.”  The judge asked A.B., “You think it’s acceptable behavior to call me 50 b**ches and say that the courtroom—this is some corny a** sh*t?”  A.B. said, “No, I’m trying to explain myself.  I walked up to the stand.  You read the paper.  You didn’t even let me talk.  You automatically changed your attitude from happy to just anything, like you was just basing me off of what—basically, just reading me off of a piece of paper.”  The judge started to talk and then she accused A.B. of rolling her eyes.  As A.B. was led from the courtroom, the judge told the public defender that she could tell A.B. had a “screw loose.”

The judge charged A.B. with 3 counts of contempt of court.  In an affidavit supporting those charges, the judge stated that A.B. “while in a courtroom, * * * did repeatedly refer to the court as a ‘b**ch,’ and called the courtroom ‘sh*t’” even though she did not personally hear A.B. say anything disrespectful but had heard that from court staff.

On August 13, A.B. appeared in the judge’s courtroom with counsel and pleaded guilty to 1 charge of contempt.  Before imposing a sentence, the judge inaccurately summarized A.B.’s actions at her arraignment, falsely stating that A.B. had said, “I don’t have to look at you.”  The judge sentenced A.B. to 30 days in jail with 15 days suspended and 5 years of active probation; she imposed a $250 fine, which she suspended, and ordered A.B. to complete anger-management classes and read an apology letter aloud in open court on September 4.

During her disciplinary hearing, the judge admitted that charging A.B. with contempt for rolling her eyes in court and cursing in lockup was an abuse of her discretion.  Noting that A.B. had not acted out physically, refused a lawful order, failed to cooperate, or engaged in any conduct that constituted an immediate threat to the administration of justice, the Board found that it was not apparent that A.B. had done anything to warrant the sentence the judge imposed.

On September 4, A.B. appeared in court with her apology letter.  A.B.’s attorney was late, but the judge proceeded with the hearing.  Even though A.B. had completed the sentence imposed on August 13, the judge ordered her to submit to random substance abuse testing and to write an additional letter entitled, “How would you feel if I called your mother a b**ch?”  The judge “continued to torment A.B. before her attorney arrived and gave the courtroom audience her own—not entirely accurate—version of A.B.’s underlying offense and behavior at her May 2019 arraignment.”  A.B. told the courtroom audience that the judge’s recitation of the case was inaccurate and continuously interrupted the judge.  After one interjection, the judge asked, “What did she say?”  Her bailiff responded, “This is bullsh*t.”  The judge responded, “This is some bullsh*t?  Juanita, put her in the holding cell for me.  Uh-hmm.  Contempt charge again.  Thank you.  Appreciate it.  In the holding cell.  Bye-bye.  I’m not finished with this.”  A.B. attempted to interrupt the judge several times to explain that she had not only said, “Oh my goodness.”  A.B., who was then hysterical, was taken to the holding cell.

In October 2020, A.B. pled no contest to the second contempt charge.  The judge sentenced her to 30 days in jail and fined her $250 before suspending that sentence and waiving costs. 

In the disciplinary proceedings, the judge admitted that she had instigated the incident that led her to cite A.B. for contempt the second time by antagonizing A.B. from the bench and being rude and discourteous.  The Board found that because of her embroilment with A.B., the judge should have recused herself from both contempt cases.

Intent and impact

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for making 3 racially insensitive and/or race-based stereotypical comments.  In re Mahoney, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct September 9, 2022).  The Commission stated:

In assessing whether judges’ words are appropriate or might give offense, judges need to consider not only their intent in uttering those words, but their impact on those hearing them.  Particularly in a situation where, as here, the speaker is a Caucasian person who holds the highest position of power in a large court system, and in one instance, given that the word she uttered was an historically and currently weaponized word used to injure and oppress Black people, the impact on the listeners is of far greater importance than her subjective intention at the time. . . .

(1) On February 9, 2022, the judge, who was then the presiding judge, participated in an online video meeting with several high-level court staff members and the court’s attorney for employment matters.  The purpose of the meeting was to discuss disciplinary options for a court employee who had, among other things, used derogatory terms such as “Nazi” and “Brownshirt,” “with the apparent intent to demean and intimidate others in the workplace who sought to enforce the court’s face mask policy.”

Near the end of the meeting, addressing employee free speech considerations, the judge argued that calling someone a “Nazi,” or using the term “Nazi,” would be unprotected speech just like using the term or calling someone a “n****r.”  Witnesses described “feeling shocked, upset, and offended at the time” and continuing “to experience those feelings when recounting the incident.”  The subject employee’s Department Director, “Ms. A,” is Black and was the only person of color in the meeting.  She was deeply hurt by the judge’s comment, feeling an epithet was being directed at her, in part, because the judge used her name just before or after uttering the word.  Witnesses recall the judge saying, “no offense, [Ms. A]” while the judge recalls saying “as [Ms. A], said to me.”  Ms. A also felt targeted because the judge had been repeatedly giving her the same directives on how to proceed, so she felt she was being treated as incompetent.  “The other witnesses shared Ms. A’s perception.”  Because of this meeting, Ms. A asked that her job be reconfigured so that she no longer had to report directly to the judge.

(2) In February 2021, during an online video to introduce a court employee, who is Black, to a new judge, who is a person of color, the judge smiled and referred to the court employee as someone who “loves watermelon.”  “Both the new judge and the court employee were deeply offended and shocked, . . . as it was their impression that [the judge] was making light of a racist trope. “ Neither responded because they were “caught off guard, embarrassed, and unsure what to say since [she] was the court’s presiding judge at the time.  In the moment, [the judge] did not perceive that she had inflicted harm or offense.”

In her response to the Commission, the judge wrote that she did not have specifically recall making that remark, but acknowledged that something like that could have occurred.  She explained that she considered the non-judicial court employee a long-time friend and that they both liked watermelon and sometimes brought it to the office to share; the

employee agreed that “this was something they had shared in common.”  The judge assured the Commission that she did not intend any racial connotations but “acknowledged she failed to grasp that, as she was the presiding judge introducing a Black employee in a formal work setting to a new judge of color (who was unaware of their relationship), her remark was naïve and insensitive and could raise reminders of a hateful racial stereotype.”  She stated that she was “appalled that her remark” had embarrassed the employee and the other judge and “made things awkward for them.”

(3) In early 2022, in the context of scheduling calendars to handle the court’s backlog of traffic infractions and other cases due to COVID, the judge suggested in the presence of court employees that the backlog was due to Asian women drivers in the area.  “Recollections as to what precisely was said vary, but the employees who heard Respondent’s remarks found them offensive and understood the remarks as referencing racial stereotypes.”  In the moment, the judge did not perceive that she had inflicted harm or offense.

In her response to the Commission, the judge denied making generalized statements about all Asian drivers, but recalled sharing what she thought was instructive, culturally relevant information, based on her prior experience, to encourage staff to have patience with Chinese women drivers appearing in court.

In mitigation, the stipulation noted that the judge had stepped down as presiding judge; apologized; voluntarily attended courses on racial sensitivity; and was remorseful and acknowledged that she had been insensitive and that “her actions, no matter what her intention or the context, ha[ve]the potential to lead someone to reasonably question her impartiality and thus the impartiality of the courts.”  The Commission also noted that the judge has served for over 11 years as a judge, is considered a dedicated and competent judicial officer, has had no prior disciplinary actions, and has not filed to renew her term of office, which expires at the end of 2022.

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.