Need for change

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Zoom problems

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

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

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

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

The judge is the fourth judge to be publicly sanctioned for conduct related to the COVID-19 pandemic.  See also In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (admonishment for, in addition to other misconduct, displaying improper demeanor toward 2 criminal defense attorneys appearing by phone for an arraignment on the first day after the stay-at-home order); Ledsinger (Tennessee Board of Judicial Conduct September 28, 2020) (reprimand for stating, “the Grand Wizard of our Supreme Court said we have to wear these masks”); Hinson (Tennessee Board of Judicial Conduct December 15, 2020) (reprimand for failing to comply with the court’s COVID-19 plan on courtroom capacity and social distancing and commenting that he wished the chief justice “would win an award so that the COVID-19 mandates” would end).

Judicial touching

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

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

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

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

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

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

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

The Commission found:

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

No excuses

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

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

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

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

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

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

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

Germany responded, “Yeah.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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?


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.”