“A friendly courtroom environment”

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

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

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

(Citations omitted).

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

THE COURT:  I love her accent.

HERNANDEZ:  I’m Mexican.

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

HERNANDEZ:  No.

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

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

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

The Commission found:

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

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

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

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

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

 

 

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

In the courthouse

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

Abusing the prestige of office

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

False statements

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

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

The ends do not justify the misconduct

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

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

The Court concluded:

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

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

 

Treatment of domestic violence complainants

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Clear erosion of public confidence

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

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

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

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

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

* * *

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

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

 

Courtesy, communication, and consideration

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

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

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

However, it explained:

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

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

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

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

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

Marathon

The requirement in the code of judicial conduct that a judge be “patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others” can be violated in a wide variety of ways, from angry outbursts, to sarcasm, to frequent interruptions, to name calling, to body language, to racial slurs, to gender stereotypes, to threats, and more.  As several discipline cases illustrate, a “marathon” court session also demonstrates a lack of the judicial temperament crucial to public confidence in judicial decisions.

The Texas State Commission on Judicial Conduct publicly admonished a judge for holding a court session until 4:00 a.m.  Public Admonition of Schildknecht and Order of Additional Education (Texas State Commission on Judicial Conduct May 11, 2015).  (The admonishment was also for describing the district attorney as a “New York Jew,” expelling him from her courtroom on a separate occasion, and telling a prosecutor his beard made him look like a “Muslim.”)  On July 2, 2014, the judge began hearing probation revocation cases at 1:00 p.m.; the court session did not end until 4:00 a.m. on July 3.  The judge did not provide any formal breaks for litigants, attorneys, witnesses, or other court personnel to eat or use the restroom.  The defendant whose case was the final matter heard in the early morning of July 3rd appealed her conviction, arguing that “fair consideration could not have possibly been given at 4 a.m. after a 19 hour day.”  In her written responses to the Commission’s inquiry, the judge acknowledged holding court from 1:00 p.m. on July 2nd until 4:00 a.m. on July 3rd without providing formal breaks, explaining this was necessary to prevent jail over-crowding and that, in her opinion, there had been enough “downtime” for anyone to eat or use the restroom and return in time to conduct court business.  The Commission concluded that the judge “failed to treat litigants, attorneys and others with patience, dignity and courtesy . . . when she held a ‘marathon’ court session lasting until 4 a.m. the following morning without allowing formal breaks.”

Similarly, based on a stipulation, in 2013, the Nevada Commission on Judicial Discipline publicly reprimanded a judge who, to accommodate her personal schedule and other reasons, required the jury, the attorneys, and staff to conduct proceedings in a murder trial continuously from 1:12 p.m. on December 16, 2010, until the jury returned a verdict at 6:47 a.m. on December 17.  In the Matter of Vega, Findings of fact, conclusions of law, and order (Nevada Commission on Judicial Discipline August 29, 2013).  The judge had recessed court in the early afternoon on 6 days during the trial so that she could attend her daughter’s high school soccer games.