Category Archives: Demeanor

“Ill-advised, improper, and damaging”

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Adopting the findings of a special investigative committee, the Judicial Council for the U.S. Court of Appeals for the 9th Circuit publicly reprimanded a District Judge for the Southern District of California for ordering a Deputy U.S. Marshall to handcuff a defendant’s 13-year-old daughter during a hearing.  In re Complaint of Judicial Misconduct (Benitez), Order (Judicial Council for the U.S. Court of Appeals for the 9th Circuit May 1, 2024).

On February 13, 2023, the judge presided over a sentencing hearing for Mario Puente for violating the terms of his supervised release.  Puente’s daughter, who was 13 years old at the time, had submitted a written statement in support of her father before the hearing and during the hearing was sitting in the back of the courtroom with a relative and a family friend. 

Puente’s counsel, a Federal Public Defender, joined the recommendation from the probation office for a sentence of 10 months of detention followed by a termination of supervised release.  While discussing the recommendation, Puente’s counsel noted that Puente’s daughter was seated in the courtroom.  When the judge asked why ending supervised release was appropriate, Puente’s counsel discussed the circumstances of Puente’s violations, including an incident in which Puente’s daughter found him unconscious after he accidentally overdosed on fentanyl.

The judge asked Puente if he had anything to add.  Puente said he hoped to leave San Diego, in part because his daughter was “following the same footsteps as I am right now,” and “had run-ins with smoking some weed and doing some things, hanging out with people,” adding, “The only thing I can do for her is try to get her out, try to get her out.”

The judge asked one of the Deputy U.S. Marshals in the courtroom, “[y]ou got cuffs?  Do you?”  The judge then asked, “[w]hat’s that young lady’s name?” and requested that Puente’s daughter “com[e] up for just a second and stand next to that lawyer over there.”  After Puente’s daughter approached, the judge told the deputy marshal, “Do me a favor.  Put cuffs on her.”  The deputy marshal handcuffed Puente’s daughter.  The judge then instructed the marshal, “[n]ow, would you mind escorting her and putting her over there in the jury box for me for just a minute.”  After Puente’s daughter was placed in the jury box, where her father sat, the judge stated, “[t]hat’s good enough.”

After between a few seconds to 4 minutes – witnesses’ recollections varied – the judge told the deputy marshal, “Okay.  You can take the cuffs off,” and the marshal removed the handcuffs.  The judge then had the following dialogue with Puente’s daughter:

Judge Benitez:  Now, don’t go away.  Now, don’t go away.  Look at me.  Look at me for just a second.  You see where  your dad is?

Puente’s daughter:  Yes.

Judge Benitez:  How did you like the way those cuffs felt on you?

Puente’s daughter:  I didn’t like it.

Judge Benitez:  How did you like sitting up there?

Puente’s daughter:  I didn’t like it.

Judge Benitez:  Good.  That was the message I was hoping to get to you.  So your dad’s made some serious mistakes in his life, and look at where it’s landed him.  And as a result of that, he has to spend time away from you.  And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.  And then some day, you’ll look back and you’ll say to yourself, “Where did my life go?”  And the answer will be that you spent most of your life in and out of jail – in and out, in and out, in and out, in and out – and it will be, probably, because of drugs.  You’re an awfully cute young lady, and I have a feeling you have a wonderful life ahead of you.  But from what I just heard about your dad – from your dad causes me to be very troubled.  You can go back and sit with your – with your mom.

The judge proceeded to discuss in some detail his feelings about drugs.

He then sentenced Puente to 10 months of detention and 2 years of supervised release.  While setting forth the conditions of Puente’s supervised release, the judge again addressed Puente’s daughter:

I hope the next time you’re tempted to use drugs, even weed, okay, even weed, you’ll remember what happened here today.  I hope you remember this mean, old face.  Look at it carefully.  Remember that some day, those drugs may land you in a courtroom just like this.  I don’t want that to happen to you, young lady.  I want you to have a wonderful – you got so much life ahead of you.  I want you to have a wonderful life.  I want your dad to get over his addiction.  I want him to come home, be a good dad to you, and keep you out of trouble.  If you’re ever, ever, ever, ever tempted to use drugs, make sure you tell your mom.  Make sure you tell someone.  Okay?  Don’t do it, please.  Please, I beg you.  Okay?  Great.

The committee found:

  • Numerous witnesses stated that Puente’s daughter was crying when the marshal handcuffed her and while she remained handcuffed.
  • The judge’s tone with Puente’s daughter “was stern and calm but not loud.”
  • The mother of Puente’s daughter recalled that her daughter spoke little and had “puffy eyes” from crying after returning home from the hearing and that she became depressed and was reluctant to go to school because of the hearing.
  • “Most witnesses recall the reactions in the courtroom as shock and surprise when Mr. Puente’s daughter was handcuffed.”
  • Several lawyer witnesses recalled looking to Puente’s counsel and the 2 Federal Public Defender supervisors to see if they would object to the judge’s actions.  The transcript reflects that no objections were made.  Several witnesses explained that no objection was raised due to concerns that an objection would make the situation worse.
  • According to multiple witnesses, the judge appeared to be trying “to provide, in the general words of the witnesses, a ‘scared straight’ experience” for Puente’s daughter.

In his responses and arguments in the discipline proceedings, the judge explained that he had felt that he had an opportunity “to possibly alter the destructive trajectory of two lives” during the hearing, stressing his strong concerns about the dangers of drug use, his experiences with drug offenders, and statistics and studies related to drug use, specifically as to adolescents and youth.  The judge acknowledged that he is aware that counseling, therapy, and mental health treatment are the best ways to help young people overcome issues such as drug use but noted “that kind of intervention was not in the inventory of actions within my control.”

The judge also highlighted that no one in the courtroom objected to his actions and that he never raised his voice, called Puente’s daughter or Puente names, berated Puente’s daughter, or said anything that would demean or shame her.  The judge accused Puente’s counsel of trying to “[g]am[e] the system,” and using Puente’s daughter to “obtain a desired result.”  The judge indicated that he would be willing to apologize to Puente’s daughter “if I could also briefly explain why I did what I did.”

The Council found that the judge “took it upon himself to order Mr. Puente’s daughter to be handcuffed for the purpose of teaching both the girl and her father a lesson about the consequences of drug use” and emphasized “the physical and emotional impacts of shackling and the lack of any basis for handcuffing Mr. Puente’s daughter in these circumstances.”

In this case, Mr. Puente’s daughter was present in court for the purpose of supporting her father.  Under these circumstances, Judge Benitez had no authority to order her to be physically restrained.  Judge Benitez cites no persuasive legal authority in his written submissions to the Committee or in his written response to the Committee’s report to justify his actions.  Further, the Judicial Council is not aware of any legal authority even arguably authorizing the handcuffing and detention of a spectator at a criminal hearing who has not engaged in any behavior that threatens the dignity and order of the proceedings.

The Council also explained that “judicial actions that exclude or discourage the presence of supportive family members may infringe the rights of both defendants and their loved ones.”

The Council emphasized:

At no point during this investigative process has Judge Benitez accepted that his actions were ill-advised, improper, and damaging to the public’s trust in the judiciary.  Judge Benitez has in fact placed blame on others, particularly the Federal Defenders, for his actions that day.  Judge Benitez accuses the Federal Defenders of using the letter from Mr. Puente’s daughter “as leverage,” but criminal defendants are well within their rights to solicit and submit letters of support.

Noting that the judge has “maintained that he acted only with the best intentions,” the Council emphasized that his good intentions did not excuse his “misguided and inappropriate methods that exceeded the authority vested in him.  His actions not only harmed Mr. Puente’s daughter, but also impaired the public’s trust in the institution.  Judge Benitez’s arguments for why his conduct was justified in the circumstances are not persuasive . . . .”

The Council noted that there had been “significant publicity and media coverage” about the incident.  Rejecting the judge’s suggestion that its “finding of judicial misconduct is a result of public pressure,” the Council explained that, “On the contrary, reinforcing the public’s trust in the judiciary is within the scope of the Council’s duties.”

“Rising above the chaos “

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In 2 recent cases, Washington State judges were sanctioned for outbursts in response to comments by litigants.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a former judge for angrily criticizing and demeaning an African-American defendant, cutting him off before he could fully explain his motion, and angrily berating him for suggesting that the judge was racially biased.  In the Matter of Brown, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 19, 2024).

On May 5, 2023, the judge presided over a hearing about a potentially dangerous dog citation received by S.D., who was not represented.  After the prosecutor and S.D. presented their respective cases, as the judge began to rule, S.D., who is African-American, asked the judge to recuse himself, noting that the judge had been the judge on S.D.’s other cases in which there had been “racial bias.”  S.D. was referring to 2 prior cases in which he had been called the N word by the opposing party.  Before S.D. could finish explaining his motion to recuse, the judge replied, “shut your mouth.”  When S.D. attempted to finish, the judge repeated that S.D. should shut his mouth or the judge would take him into custody for contempt of court.

The judge then told S.D. he had a “big mouth” and said, “You expect to come in here and just run your mouth and say your dog’s not dangerous and say I’m biased against you because every time you come in here, you’ve screwed up.  You’re a screw up, plain and simple.”  The judge also accused S.D. of “mad dogging” him.  In a footnote, the Commission cites Wiktionary, a free dictionary:  “A rabid dog. (figuratively, by extension) Someone who is aggressive and fanatical; an aggressor who cannot be reasoned with. mad dog.”

At the end of the hearing, the judge mocked S.D. for asking the judge to recuse while the judge was ruling on the matter, saying in a condescending tone, “It has to be before the hearing starts, smart guy.  You think you’re so smart, keep on running your mouth.”

In his answer to the statement of allegations, the judge acknowledged making impatient, undignified, and discourteous statements:

I was contentious, argumentative, angry, and when I left the bench, I was immediately ashamed of my actions. … My words, my demeanor, were inappropriate toward any human being. … I was clearly wrong in my behavior towards [S.D.].  I deeply regret it.  I do hope my stipulations, and acknowledgment of disgraceful behavior, might grant [S.D.] some measure of relief. … Whether I ‘appeared to demonstrate bias’, I cannot say.  I don’t believe I did; however, the other allegations are egregious and embarrassing enough.  The [Statement of Allegations] stated explicitly that the complainant was African American, as if race played a part in this incident.  Maybe it does appear that way, though I never in any way intended it to be so.”

The judge also described multiple devastating personal challenges that may have contributed to his “disastrous interaction with” S.D.

The Commission concluded that, regardless of the judge’s “intentions, the impact of his comments was hurtful and demeaning, created an appearance of prejudice and partiality and detracted from the dignity of judicial office.”

Respondent angrily criticized and demeaned S.D. when he tried to reference a separate incident where the judge did not take into account that S.D. had been called by the N word.  Instead, Respondent cut S.D. off before he could fully explain.  Respondent berated S.D. for suggesting Respondent was racially biased, expressing angry hyper-reactivity that S.D. would even voice the possibility. While Respondent may well consider himself free of any racial animus, his reaction from the bench on this occasion was to insult and demean S.D. for even speaking of the bias S.D. experienced.  The nature of inherent, unconscious bias requires the actor to consider the impact of their actions and not just their subjective intent.  Conduct such as this is detrimental to the integrity of and respect for the judiciary.

Although the stipulation was about 1 hearing, the Commission stated that the judge’s conduct in the hearing with S.D. “cannot properly be considered an isolated incident” because its investigation had revealed additional incidents of intemperance that it had not investigated because the judge had left the bench, although his conduct toward S.D. was “the most egregious instance and the only one which was racially charged.”  Also in aggravation, the Commission noted that the judge’s “treatment of S.D. was traumatizing to S.D. and may have signaled to others who viewed the conduct, including law enforcement officers present in the courtroom, that S.D. was somehow deserving of such disrespect and led them to believe they could also treat him poorly.”  The Commission explained that although the judge “has consistently stated he did not consciously intend to express bias toward S.D. based on race,” “a reasonable person in S.D.’s position . . . would experience Respondent’s comments toward him as biased.”

The judge had served as a district court judge for over 13 years.  The Commission noted that immediately after the hearing with S.D., the judge “recognized that his conduct had been so inappropriate that he should no longer be a judicial officer;” he resigned effective August 8, 2023, and helped to prepare the court for his departure.  The judge also resigned from the Washington State Bar Association and told the Commission that he will no longer practice law or attempt to serve in any judicial capacity.  He has had no other public disciplinary history and cooperated with the Commission, immediately acknowledging that his conduct violated the code and demonstrating responsibility for his behavior by entering into the stipulation.

* * *
Based on a stipulation and agreement, the Washington Commission publicly admonished a judge for directing a profane comment at a defendant in court.  In re the Matter of Cruz, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 20, 2024).

On December 4, 2023, the judge presided over the arraignment of a defendant on charges of vehicle trespass and criminal trespass.  The hearing was conducted remotely, and the defendant appeared virtually from jail.  During the hearing, the defendant used profanity in most of his comments and responses.  After the judge announced the defendant’s case, the public defender indicated that the defendant did not want the public defender to represent him and that the matter could be set over to the next day for the new attorney.  The defendant objected to a continuance, but the judge said that she was going to set the matter over to the next day based on the behavior she had seen from the defendant.  The judge and the defendant then had the following exchange.

Defendant:  It’s like we’ve done that for the last three f**king dates, let’s not keep doing that.
Judge:  Well, sir…
Defendant:  And you refused last time.  What they did was a shut off and they wouldn’t reconnect it.
Judge:  Okay, sir …
Defendant:  No, listen up and listen to what the f**k I have to . . .
Judge:  No, no, f**k you then.  Okay, no.
Defendant:  F**k you, b**ch, what’s up?

After the exchange, the judge promptly recused herself from the case, promptly verbally self-reported the incident to the Commission, and filed a written complaint, which was received on December 19.

The incident became the subject of conversation in the local legal community.

In her written response to the statement of allegations, the judge admitted that she violated the code and stated that she was deeply sorry and took full responsibility for her actions.  The judge explained that at the time of the incident, she was engaged in a full-time non-judicial position and multiple pro-tem judicial positions and had overscheduled herself and was handling 2 calendars in 2 different courts, one on Zoom and one in person.  The judge said that her behavior was completely out of character and that she has not used such language in court before or since the incident.  Since the incident, the judge has, voluntarily, at her own expense, participated in continuing legal education courses focused on judicial demeanor, dealing with challenging litigants, managing stress, and avoiding burn out.

In mitigation, the Commission noted that this was an isolated incident, the judge’s action was inappropriate and spontaneous, “there is no basis to believe she intentionally or flagrantly violated her oath of office,” and the judge has no prior public discipline history.

However, it also stated:

Profanity has no place in a court proceeding, least of all when used by a judge who has an affirmative duty to maintain order.  As this Commission has previously emphasized, being a judicial officer means being civil even to those who are uncivil and rising above the chaos that sometimes occurs in court to set an example for others.

The Commission noted that an admonishment is a written action of an advisory nature that cautions a judge not to engage in certain proscribed behavior and is the least severe disciplinary action the Commission can issue, adding that “in this instance, an admonishment may help to alert other judges to the risks of unguarded comments damaging public confidence in the impartiality’ integrity and independence of the judiciary’.”

The judicial high road

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In a recent judicial discipline case, the Ohio Supreme Court acknowledged that the courtroom “is often a place for disagreement and argument, whether between the parties to a case or a party and the judge” but reminded judges to “recognize when they need to control such a situation and take the high road.”  The Court found that the judge in the case had not done so in a “not cordial, to say the least” exchange with a defendant during an arraignment.  Disciplinary Counsel v. Gaul (Ohio Supreme Court December 29, 2023).

In 2021, Arthur Smiley appeared before the judge by videoconferencing for arraignment on 2 counts of robbery.  When the judge determined that he was going to set a $25,000 surety bond, Smiley said, “Thank you.”  As the Court explained it:

From that point, the colloquy devolved into apathetic quips by Smiley that appeared to increasingly irritate [Judge] Gaul.  Smiley continued to express indifference regarding the arraignment because he would be held in jail for other cases anyway.  Gaul referred to Smiley, who is black, as “my brother” and told him, “This isn’t the drive-through window at Burger King, my friend.  You don’t get it your way.”

As a result of the exchange, the judge announced that he was raising Smiley’s bond to $100,000.  Smiley told the judge that he was making himself “look stupid * * * as a judge” by raising the bond because he was being held on other cases and could not be released anyway.  In response, the judge found Smiley in contempt and sentenced him to 30 days in jail for the contempt.  Toward the end of the arraignment, the judge retracted his decision to increase Smiley’s bond and reset the bond at $25,000.

Smiley appealed, and the court of appeals reversed the contempt and remanded the matter for the judge to make findings of fact to allow it to determine whether he had abused his discretion.  On remand, the judge suggested to Smiley’s counsel that he would dismiss the contempt charge if Smiley apologized.  Smiley did, and the contempt charge was dismissed.

The Court stated:

Judges—especially trial-court judges—deal with people of varying tempers on a near-daily basis, and a judge’s encountering a difficult person does not excuse the judge’s duty to exercise fair and impartial judgment and to treat that person with patience, courtesy, and dignity.  Gaul’s interaction with Smiley did little to promote the public’s confidence in the integrity and impartiality of the judiciary, because Gaul continued to engage with Smiley even though the main purpose of the hearing—the setting of bond—had been fulfilled.  Gaul could have stopped interacting with Smiley after he set bond, but he chose not to.  The evidence shows that as the arraignment continued, Gaul became increasingly irritated by Smiley’s cavalier attitude.

Conduct such as that exhibited by Smiley during the arraignment might inflame the passions of an ordinary person so as to cause the person to respond with equal vigor, but judges are not ordinary.  Rather, they are held to the highest standards of professional behavior. . . .  Ohioans expect patience from their judges.  By stepping up (or down) to Smiley’s level and engaging with Smiley when he did not need to do so, Gaul prolonged a bad situation and made it worse.  Gaul’s continued interaction with Smiley ultimately led to his finding Smiley in contempt.  That unnecessary interaction demonstrated that Gaul’s role as an impartial arbiter in the matter had ended, resulting in prejudice to Smiley.  In other words, but for Gaul’s continued engagement with Smiley, the contempt finding, although later reversed, would never have happened.

The Court suspended the judge for 1 year without pay and suspended him from the practice of law for 1 year for his treatment of Smiley, coercing no-contest pleas in 2 cases, aggressive questioning of a criminal defendant in 1 matter, demeaning litigants and spectators in 2 matters, and providing assistant to a litigant in a federal case who had been acquitted on  related matters before the judge.

“Practice what they preach”

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A recent judicial discipline decision reminded judges:

Media, movies, and television influence the public’s perception of their elected judges.  Whether it be the wizened, yet stern, Judge Chamberlain Haller, or the witty, sharped-tongued [sic] Judge Judy, their performance on screen may easily be perceived as examples of how we should act.  Yet, we are not them or Judge Dredd or even Judge Elihu Smalls.  We are not entertainers, but rather Texas jurists obligated to abide by actual rules as opposed to a story or show script.

In re Rangel, Opinion (Texas Special Court of Review November 3, 2023).  (Judge Haller is the judge in the 1992 film comedy My Cousin Vinny.  Judge Judy is a former judge who presided over a reality court show from 1996-2021.  Judge Dredd is a fictional character from comics, films, and video games who is a “street judge’, empowered to summarily arrest, convict, sentence, and execute criminals” in a dystopian city in the future.  Judge Elihu Smalls is one of the founders of the country club in the 1980 film comedy Caddyshack.)

In Rangel, the 3-judge court publicly warned a judge for her interactions with attorneys and court personnel during 4 hearings in 2020 to 2021; the court also ordered the judge to receive 2 hours of education on courtroom decorum and judicial deportment.  The judge had presided over the hearings via Zoom, and the hearings had been livestreamed over YouTube.  Including links to the YouTube videos in its opinion, the court stated that words “fall short of grasping” the essence of the judge’s conduct and that “truly, a picture is worth one thousand words, if not more.”

  • The judge had engaged in an extended rebuke of an assistant district attorney and the office of the district attorney in “an elevated, sometimes shrill, tone,” “hopping in her seat and waving her arms.”
  • In “a tone reasonable jurists would find disrespectful, if not contemptable, if directed at him or her,” the judge had engaged in “extended shouting” at 2 attorneys for calling another attorney’s discovery requests “nonsensical,” a “word commonly found in legal writings.”
  • During a hearing on a motion to dismiss charges of indecency with and sexual assault of a child, the judge had said “sometimes karma’s a b**ch” because the defendant had “since suffered severe medical issues implicating his groin area.”
  • In a raised voice, the judge had told a court interpreter who said she could not turn off the interpretation program as the judge requested, “‘I’m not making this up and I’m not trying to piss you off;’ and ‘you pissed me off with your attitude;’ ‘goodbye and have a good life . . . figure it out, please.’”

The judge tried “to justify her conduct by suggesting that segments of the YouTube viewing public found it acceptable.”  Finding the judge’s argument “troubling,” the court stated:  “As said earlier, we are not entertainers; we do not play to the public crowd.  Though the public is free to grade us through the ballot box, we grade our department through compliance with canons regulating judicial conduct.”

The court also rejected what it called the judge’s “24 years . . . four complaints” defense – that “because only four complaints had been filed during her 24-year tenure on the bench, she necessarily erred only four times.”  The court explained that argument required proof that everyone who witnesses improper conduct files a complaint, but emphasized “we know that is not true.”  It noted that the judge had testified that she had witnessed “misconduct by attorneys without formally complaining of it,” adding, “If she remained silent, why would not others?”  It continued:

In our field, it is not unheard of for attorneys to withhold complaint due to fear of retaliation, which fear one witness actually mentioned. . . .  Many also accept ill conduct as part and parcel of practicing our trade.  We may not like it but we let it go.  Acknowledging that truth leads us to reject the inference that she committed only four instances of misconduct in her 24 years since only four complained. 

“More importantly,” the court stated, “referencing the prior 20+/- years and lack of complaint is somewhat misleading and irrelevant” because “Zoom and universal viewing through YouTube” were not used earlier in her career.  It continued:

[T]he evidence illustrates that the conduct in question was not private, but quite public; it occurred during official court proceedings.  Anyone in the world with access to the internet could and can view it, as did many.  Moreover, the attorneys and court personnel subject to her utterances were comparable to a captive audience.  Being participants in a hearing, they were not necessarily free to leave without experiencing additional reaction.  Simply put, a judge controls the proceeding, which legal counsel generally know.  Engaging in impermissible diatribe while exercising that control is a misuse of that office.

The court concluded that judges should “practice what they preach” and not engage in conduct that they would find to be contempt of court if displayed by lawyers, such as inappropriate words, speaking in a loud and angry voice, or leveling “extended and global accusations of misconduct.”  The court noted that being “patient, dignified and courteous to litigants” does not require judges to “be robots, shorn of individual personality and character,” adding, “Indeed, it is that individuality in spirit, experience, and background that refreshes our ranks and reinvigorates our jurisprudence.”  However, it emphasized, “there are limits.” 

Transcending poor judgment

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Accepting the determination of the State Commission on Judicial Conduct, which was based on an agreed statement of facts, the New York Court of Appeals removed a non-lawyer judge from office for (1) brandishing a loaded firearm at a litigant in the courtroom and repeatedly mentioning the litigant’s race in his retellings of the incident and (2) engaging with 8 Facebook posts promoting non-profit fund-raising events.  In the Matter of Putorti (New York Court of Appeals October 9, 2023). 

(1) Since 2003, the judge has been licensed to carry a firearm, and at a 2013 judicial training course, he had been advised that he could legally carry a concealed firearm on the bench.  The judge’s practice was to keep the firearm attached to the underside of the bench while he was presiding over his courtroom in the Whitehall Village Court.  The courtroom had no assigned security personnel, but it was adjacent to the village police department, an entrance to the police station was several feet from the bench, and a police officer was occasionally present in the courtroom.

One day in late 2015, while presiding in court, the judge brandished a loaded firearm at a litigant, a 6-foot, 165-pound Black man, who was waiting for his case to be called.  Although the judge claims that he “subjectively feared for his safety,” he admits that he had “no reasonable basis” to believe that the litigant “was about to use imminent deadly force,” and that he was “not justified” in brandishing the firearm.

The judge repeatedly recounted his story of the incident to others.  In an interview in the fall of 2015, he described his practice of carrying a firearm on the bench and said that he once brandished his firearm at “‘someone’ who came running up to him at the bench and to whom he said, ‘whoa, whoa, whoa, slow down.’”  He gave the interview to his cousin, a Hofstra University journalism student.  The interview was quoted in an article entitled “Carrying in the courtroom,” published online in the Long Island Report.

In early 2016, Judge Putorti showed the article to another judge, telling her about a time he drew his firearm on an “‘agitated’ ‘big Black man’” when the man approached the bench too quickly.  From his “manner and tone,” the other judge had the “impression” that he “was bragging about his actions and . . . expressing pride about being featured in the article.”  The other judge also overheard him tell other judges about the article and the incident at a 2016 county magistrates association meeting.

At another association meeting in 2018, while seeking advice about courtroom security, Judge Putorti told the judges present that he had once pointed his firearm at a “‘large [B]lack man’” who had passed the stop line and came within “a couple” feet of the bench while a police officer was standing at the bench.  The judge recounted that the litigant stated that he “just wanted to talk,” and he added that the officer made a joke about how quickly the judge had been able to draw the gun.

One of the other judges who was present expressed concern to Judge Putorti’s supervising judge.  In a telephone conversation with his supervising judge, Judge Putorti explained that the incident occurred when he called the litigant’s case, and the litigant “ran quickly to the bench, past a line where defendants are supposed to stand.”  The judge added that an officer who was serving as “security” allowed the litigant to approach “within two feet” of the bench.  The judge described the litigant as “a ‘large [B]lack man,’ about 6’9” tall and ‘built like a football player.’”  The judge told his supervising judge that he drew his firearm and “‘pointed it at’” the litigant, adding that, although a bullet was not in the chamber, it takes “‘a split second’” to load.  The judge further told his supervising judge that the litigant said he “‘just wanted to talk’” to the judge, who said that he would talk once the litigant moved back behind the line; the litigant did move back, and the judge then put his gun away.  After this phone conversation, the judge signed a counseling memorandum agreeing never to display a firearm in court unless confronted with deadly physical force.  He also claims that, after the conversation with his supervising judge, he stopped carrying a firearm in the courtroom.

The judge challenged the Commission’s finding of racial bias.  Noting that the Commission was bound to base its determination on the agreed statement of facts, the Court explained that “the agreed-upon facts included an admission by petitioner that he failed to perform his judicial duties ‘without manifesting in words or conduct bias or prejudice based upon race . . . .”  Stressing that the “appearance of such impropriety is no less to be condemned than is the impropriety itself,” the Court also noted that the judge had acknowledged that his conduct “may have created the appearance of racial bias.”  “Despite these conclusive admissions,” the judge argued that “he was not acting with racial bias” but that “his repeated reference to the litigant as a ‘big Black man’ was meant merely to describe him.”  However, the Court concluded that the judge’s repeated references to the litigant as a “big Black man” were “not a mere physical description of the litigant” but “exploited a classic and common racist trope that Black men are inherently threatening or dangerous,” and, therefore, exhibited “bias or, at least, implicit bias.”  The Court added that “New York’s judicial system recognizes the pernicious effect that implicit bias often has on the fair and equal administration of justice . . . .”

(2) From October 2019 through November 2020, which was after he had learned that the Commission was investigating the gun incident, the judge engaged with 8 Facebook posts promoting nonprofit fundraising events.  His page was viewable by the public, and he had over 1,300 “friends,” many of whom knew he was a judge, including the county district attorney, other attorneys, and police officers.

In October 2019, the judge was “tagged” in a post promoting a spaghetti dinner to raise money to cover medical expenses that he had incurred in a motorcycle accident; rather than delete the post from his page, the judge wrote, “I hope to see as many people as I can.”  Over 500 people attended, raising $9,400.

The judge also shared and commented on Facebook posts promoting 7 events to raise funds for the Elks Lodge, in which he held office.

The Court stated that, although “the extreme sanction of removal is warranted only in “‘truly egregious circumstances’ that extend beyond the limits of ‘even extremely poor judgment’” . . . , we measure this ‘truly egregious’ standard ‘with due regard to the fact that Judges must be held to a higher standard of conduct than the public at large’ . . . .”  Noting that “what constitutes ‘truly egregious’ circumstances is a fact-specific inquiry,” the Court stated that it considers “both the gravity of the wrongdoing and the “’effect of petitioner’s conduct upon public confidence in his character and judicial temperament’ . . . .”  Noting that removal is often reserved for a judge who engages in a pattern of misconduct, the Court concluded that this was one of the “rare cases where the misconduct is so inexcusable that no amount of mitigation can be ‘sufficient to restore the public’s trust’ in the judge’s ability to discharge the responsibilities of judicial office ‘in a fair and just manner’ . . . .”  Finding that “the record amply supports the conclusion that petitioner’s misconduct ‘transcends poor judgment’ and warrants removal,” the Court explained:

While presiding over his courtroom, petitioner brandished a loaded firearm at a litigant who presented no threat to anyone.  Rather than show remorse, he described his conduct in a press interview and boasted about it to his colleagues, while repeatedly, and gratuitously, referring to the litigant’s race.  Also troubling is petitioner’s denial in this Court of facts to which he previously stipulated.

The Court acknowledged that the judge’s fundraising on social media “would not by itself warrant removal” but stated that “its timing and the circumstances under which it occurred,” i.e., when he knew he was under investigation, “evince an unwillingness or inability to abide by the Rules of Judicial Conduct,” further demonstrating his unfitness for office. 

“Snowflake,” “saving face,” and “fast and loose”

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The California Commission on Judicial Performance publicly admonished a former judge for (1) stating that the plaintiff in a defamation action was “hypersensitive” and a “snowflake” and needed to “litigate like a grown-up” and offering to dismiss the case so he could appeal; (2) in a second matter, after a court of appeal justice vacated an order that he had issued, sending an email to her about the case; and (3) in an unlawful detainer suit against a commercial tenant, intentionally disregarding the law regarding relief from a default judgment and making discourteous comments.  In the Matter of Hunt, Decision and order (California Commission on Judicial Performance August 31, 2023). 

(1) Mohammad Abuershaid, a deputy public defender, used a fictious name to file a defamation lawsuit alleging that a senior member of the district attorney’s office routinely referred to him as a terrorist.  The judge, sua sponte, set a hearing on an order to show cause why he should not stay the case until the plaintiff amended the complaint to reflect his legal name.

At the hearing, the judge remarked about the plaintiff’s use of a fictitious name:

He did that because he says that if his real name were made public, the alleged defamation, which meant that somebody had called him a “terrorist,” would damage his professional reputation as a deputy public defender.

Now, I bet I’m older than everybody on the line right here, so it’s true, the world has changed since I grew up.  And we have become in my lifetime rather what I consider to be hypersensitive to people’s feelings.  You know, I have even heard about young people being described as “snowflakes” because they are supposedly so insecure that they need to have what are called “safe spaces” if they are confronted with situations or things that they are unfamiliar with.

But I cannot believe that there’s a public policy in the state of California that permits adults to bring lawsuits under fictitious names just because of their transient, personal feelings having been hurt or damaged.  I’m talking about adults here.  Adulthood means a recognition that life routinely brings adversely [sic].  It means self-sufficiency.  It means strength of mind, courage, and wisdom, and resilience.  You’re talking about an old-fashioned person here.  And I believe in those things.  And honestly, I bet those of you who don’t have a case hanging there believe those things, too, about adults.  Adulthood routinely brings adversity.  The law expects—routinely, it expects the characteristics I’ve listed are a normal condition of adulthood.  It is only when those qualities that I’ve just listed are proved to be abnormally lacking, like cases of mental illness or stuff like that, that the law will recreate [sic] some very closely-edged exceptions, all consistent with due process by the way.

He said to the plaintiff’s attorney, “I’ll take your arguments to the contrary, but my tentative ruling will be, as you get to put in your brief an alternative, to give you a week to amend your complaint.  Tell your client to step up to the bar and give his name and litigate like a grown-up.”

Before the Commission, the judge argued that his remarks “reflected ‘a different generation giving advice and insight to a younger generation, each of whom was speaking a different language’ and that his discussion about cultural changes and heightened sensitivities of young people were interpreted negatively.”  However, the Commission stated that his “remarks, on their face . . . insinuated that Mr. Abuershaid was ‘hypersensitive,’ was a ‘snowflake,’ and needed to ‘litigate like a grown-up’” and were “gratuitous and unrelated” to whether he could file under a fictitious name.  The Commission also rejected the judge’s argument that his “snowflake” remark “was collateral, finding that it “was personal, critical, and created the appearance of bias against Mr. Abuershaid.”

When Abuershaid’s counsel, Matthew Murphy, contended that the case was not about his client’s “hurt feelings,” but about defamation per se, the judge stated, “It actually may not be [defamation] per se.  The material that you’ve alleged does not mention that guy’s name.  It doesn’t even mention his name.”  The judge also suggested that Murphy was trying to get the case before the Court of Appeal and offered to make it “easier” on him by dismissing the case as “a catalyst” for getting the “case in front of the DCA.”  The Commission found that the judge’s comments were discourteous, gave the appearance of embroilment, and suggested that he had prejudged the outcome of the case.

(2) In a civil action, the judge granted the defendant’s ex parte request to advance the hearing on their summary judgment motion.  The plaintiff petitioned for a writ of mandate and requested a stay, and the Presiding Justice of the Fourth District Court of Appeal, Kathleen O’Leary, vacated the judge’s decision and issued an alternative writ or order to show cause.

The next day, Judge Hunt sent Justice O’Leary an email that stated:  “I may be stupid, but I know when someone is saving face.”  When Justice O’Leary received the email, she questioned whether it was from a judge and reported it to the presiding judge and the assistant presiding judge.  Believing the email was a spoof, the presiding judge alerted the California Highway Patrol personnel at the appellate court.

Before the Commission, the judge acknowledged that he should not have sent the email, expressed remorse, and said that, upon realizing his error, he immediately apologized to Justice O’Leary.  The Commission concluded that the judge’s email was an improper ex parte communication with the appellate court, gave the appearance of embroilment, and was discourteous and intemperate.

(3) On November 19, 2020, Shapell Socal Rental Properties filed a commercial unlawful detainer action against Chico’s FAS, Inc. for failing to pay rent.  Chico’s requested that Shapell send communications to the law firm it had retained for real estate disputes arising out of the effects of COVID-19.

Instead, Shapell had a registered process server serve the summons and complaint on an employee at the Chico’s store in Laguna Niguel and mailed copies to the store.  On December 11, Shapell requested entry of a default judgment against Chico’s and improperly sent a copy of the request to the store in Laguna Niguel without notifying Chico’s counsel or sending a copy to Chico’s corporate headquarters.  The court entered a default judgment.

Chico’s filed a motion to set aside the default.  At a hearing, Chico’s attorney presented evidence that Shapell did not properly serve the documents at Chico’s corporate headquarters, its registered agent in California, or its law firm.

During the hearing, the judge stated to Chico’s attorney:

  • “I mean, I’ve got very little indication that your client took it seriously.”
  • “I’ve got a lot of indication that your client was just dragging its feet, hoping that this would go away.”
  • “But I’m getting a very uncomfortable position about this tenant playing pretty fast and loose with whether they pay rent or not, or whether they want to be there or not.”

After hearing oral argument, the judge took the matter under submission; subsequently, he issued a minute order denying Chico’s motion.  Chico’s appealed, and the court of appeal reversed the judge’s order.

The Commission determined that when he denied Chico’s relief from the default judgment, the judge had intentionally disregarded the law on default judgments, ignoring the evidence, abusing his authority and discretion, and disregarding Chico’s fundamental right to a hearing on its potential eviction.  The Commission also found that the judge’s accusations about Chico’s reflected poor demeanor and gave the appearance of bias against Chico’s and prejudgment of the underlying action.  Rejecting the judge’s argument that his remarks were “entirely within what is expected and permitted of a judicial officer in colloquy with counsel regarding contested legal matters,” the Commission concluded that his “comments were discourteous and unnecessary;” that his focus on Chico’s failure to pay rent created the appearance of bias and prejudgment; and that, as the court of appeal had also concluded, he “’completely ignored the ethical and statutory violation committed by Shapell’s counsel’.”

“Snowflake,” “saving face,” and “fast and loose”

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The California Commission on Judicial Performance publicly admonished a former judge for (1) stating that the plaintiff in a defamation action was “hypersensitive” and a “snowflake” and needed to “litigate like a grown-up” and offering to dismiss the case so he could appeal; (2) in a second matter, after a court of appeal justice vacated an order that he had issued, sending an email to her about the case; and (3) in an unlawful detainer suit against a commercial tenant, intentionally disregarding the law regarding relief from a default judgment and making discourteous comments.  In the Matter of Hunt, Decision and order (California Commission on Judicial Performance August 31, 2023). 

(1) Mohammad Abuershaid, a deputy public defender, used a fictious name to file a defamation lawsuit alleging that a senior member of the district attorney’s office routinely referred to him as a terrorist.  The judge, sua sponte, set a hearing on an order to show cause why he should not stay the case until the plaintiff amended the complaint to reflect his legal name.

At the hearing, the judge remarked about the plaintiff’s use of a fictitious name:

He did that because he says that if his real name were made public, the alleged defamation, which meant that somebody had called him a “terrorist,” would damage his professional reputation as a deputy public defender.

Now, I bet I’m older than everybody on the line right here, so it’s true, the world has changed since I grew up.  And we have become in my lifetime rather what I consider to be hypersensitive to people’s feelings.  You know, I have even heard about young people being described as “snowflakes” because they are supposedly so insecure that they need to have what are called “safe spaces” if they are confronted with situations or things that they are unfamiliar with.

But I cannot believe that there’s a public policy in the state of California that permits adults to bring lawsuits under fictitious names just because of their transient, personal feelings having been hurt or damaged.  I’m talking about adults here.  Adulthood means a recognition that life routinely brings adversely [sic].  It means self-sufficiency.  It means strength of mind, courage, and wisdom, and resilience.  You’re talking about an old-fashioned person here.  And I believe in those things.  And honestly, I bet those of you who don’t have a case hanging there believe those things, too, about adults.  Adulthood routinely brings adversity.  The law expects—routinely, it expects the characteristics I’ve listed are a normal condition of adulthood.  It is only when those qualities that I’ve just listed are proved to be abnormally lacking, like cases of mental illness or stuff like that, that the law will recreate [sic] some very closely-edged exceptions, all consistent with due process by the way.

He said to the plaintiff’s attorney, “I’ll take your arguments to the contrary, but my tentative ruling will be, as you get to put in your brief an alternative, to give you a week to amend your complaint.  Tell your client to step up to the bar and give his name and litigate like a grown-up.”

Before the Commission, the judge argued that his remarks “reflected ‘a different generation giving advice and insight to a younger generation, each of whom was speaking a different language’ and that his discussion about cultural changes and heightened sensitivities of young people were interpreted negatively.”  However, the Commission stated that his “remarks, on their face . . . insinuated that Mr. Abuershaid was ‘hypersensitive,’ was a ‘snowflake,’ and needed to ‘litigate like a grown-up’” and were “gratuitous and unrelated” to whether he could file under a fictitious name.  The Commission also rejected the judge’s argument that his “snowflake” remark “was collateral, finding that it “was personal, critical, and created the appearance of bias against Mr. Abuershaid.”

When Abuershaid’s counsel, Matthew Murphy, contended that the case was not about his client’s “hurt feelings,” but about defamation per se, the judge stated, “It actually may not be [defamation] per se.  The material that you’ve alleged does not mention that guy’s name.  It doesn’t even mention his name.”  The judge also suggested that Murphy was trying to get the case before the Court of Appeal and offered to make it “easier” on him by dismissing the case as “a catalyst” for getting the “case in front of the DCA.”  The Commission found that the judge’s comments were discourteous, gave the appearance of embroilment, and suggested that he had prejudged the outcome of the case.

(2) In a civil action, the judge granted the defendant’s ex parte request to advance the hearing on their summary judgment motion.  The plaintiff petitioned for a writ of mandate and requested a stay, and the Presiding Justice of the Fourth District Court of Appeal, Kathleen O’Leary, vacated the judge’s decision and issued an alternative writ or order to show cause.

The next day, Judge Hunt sent Justice O’Leary an email that stated:  “I may be stupid, but I know when someone is saving face.”  When Justice O’Leary received the email, she questioned whether it was from a judge and reported it to the presiding judge and the assistant presiding judge.  Believing the email was a spoof, the presiding judge alerted the California Highway Patrol personnel at the appellate court.

Before the Commission, the judge acknowledged that he should not have sent the email, expressed remorse, and said that, upon realizing his error, he immediately apologized to Justice O’Leary.  The Commission concluded that the judge’s email was an improper ex parte communication with the appellate court, gave the appearance of embroilment, and was discourteous and intemperate.

(3) On November 19, 2020, Shapell Socal Rental Properties filed a commercial unlawful detainer action against Chico’s FAS, Inc. for failing to pay rent.  Chico’s requested that Shapell direct communications to the law firm it had retained for real estate disputes arising out of the effects of COVID-19.

Instead, Shapell had a registered process server serve the summons and complaint on an employee at the Chico’s store in Laguna Niguel and mailed copies to the store.  On December 11, Shapell requested entry of a default judgment against Chico’s and improperly sent a copy of the request to the store in Laguna Niguel without notifying Chico’s counsel or sending a copy to Chico’s corporate headquarters.  The court entered a default judgment.

Chico’s filed a motion to set aside the default.  At a hearing, Chico’s attorney presented evidence that Shapell did not properly serve the documents at Chico’s corporate headquarters, its registered agent in California, or its law firm.

During the hearing, the judge stated to Chico’s attorney:

  • “I mean, I’ve got very little indication that your client took it seriously.”
  • “I’ve got a lot of indication that your client was just dragging its feet, hoping that this would go away.”
  • “But I’m getting a very uncomfortable position about this tenant playing pretty fast and loose with whether they pay rent or not, or whether they want to be there or not.”

After hearing oral argument, the judge took the matter under submission; subsequently, he issued a minute order denying Chico’s motion.  Chico’s appealed, and the court of appeal reversed the judge’s order.

The Commission determined that when he denied Chico’s relief from the default judgment, the judge had intentionally disregarded the law on default judgments, ignoring the evidence, abusing his authority and discretion, and disregarding Chico’s fundamental right to a hearing on its potential eviction.  The Commission also found that the judge’s accusations about Chico’s reflected poor demeanor and gave the appearance of bias against Chico’s and prejudgment of the underlying action.  Rejecting the judge’s argument that his remarks were “entirely within what is expected and permitted of a judicial officer in colloquy with counsel regarding contested legal matters,” the Commission concluded that his “comments were discourteous and unnecessary;” that his focus on Chico’s failure to pay rent created the appearance of bias and prejudgment; and that, as the court of appeal had also concluded, he “’completely ignored the ethical and statutory violation committed by Shapell’s counsel’.”

“The character assassination game”

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Based on the Utah Supreme Court’s approval of an order of the Judicial Conduct Commission, a former judge has been publicly censured for sending court staff an email before he retired stating:

Just so all of you are on the same page, I am not retiring because I want to, I am leaving because several staff members here at the court filed complaints against me.  The judicial conduct commission acted on those complaints and are requiring that I retire.  Those staff members know who they are and I know too because their names were listed in the report.  Thanks for playing the character assassination game, appreciate ya.

The Commission noted that removal would have been the appropriate sanction if the judge had not retired.  In re Ridge (Utah Supreme Court July 3, 2023) ().

The judge sent the email after he had agreed to retire and to be publicly censured to resolve a  complaint.  Based on that agreement, the judge was also publicly censured for (1) taking prescribed medication while he presided in court and appearing groggy and tired; (2) engaging in inappropriate conduct and making inappropriate comments during WebEx hearings; (3) being impatient with defendants; (4) being impatient and discourteous to court staff and failing to be diligent in his administrative duties; and (5) questioning Hispanic defendants who requested an interpreter, entering pleas without counsel or an interpreter, and not allowing a defendant to enter a not guilty plea.  In re Ridge (Utah Supreme Court July 3, 2023). 

In June 2021, the judge was prescribed and took medication to relieve numbness of his feet caused by back problems.  He took the medication while presiding in court and appeared tired and groggy.  Defendants, attorneys, court personnel, and witnesses observed his state while on the medication.

Sometimes during WebEx court hearings in 2021, the judge did not turn on his camera; did not wear judicial robes and/or was dressed very casually when the camera was on; babysat his grandson; and had his TV on.  Also during 2021, the judge had his dog—an emotional support animal—with him during court proceedings at home and at the courthouse.  (Approving the censure, the Court stated that it was relying on the judge’s stipulation that he had violated the code of judicial conduct and offered no opinion on whether all of the conduct related to the WebEx hearings violated the code.)

At the end of a court day in November 2021, when everyone was off a WebEx hearing except for one defendant, the prosecutor, and court staff, the following comments were made:

Judge:  Okay, I’m going to go shoot myself.  You guys have a good afternoon.
Bailiff:  I have valium in my desk Judge.  I’m gonna go take some.  (laughing).
Judge:  I wish you had some here, I’d take some with you.
Prosecutor:  You guys have to be careful what you admit in front of the prosecutors.  (laughing).
Bailiff:  Yeah, I ain’t afraid of you.  (laughing).
Prosecutor:  I’ll come down harder on you guys.  I’m going to ask for prison time for you.  (laughing).

The Commission found that the comments were clearly jokes and everyone was laughing but that the defendant was able to see and hear the conversation.

During a hearing held via WebEx, the judge had the following exchange with a defendant who asked if counsel could be appointed in his case.

Judge:  Since there is no threat of incarceration, your request is denied.  The court is going to give you time to hire counsel.
Defendant:  [Is silent]
Judge:  Hello?
Defendant:  Can you say that one more time, about to hire counsel, um can you explain that end part, hire counsel?
Judge:  I’ll give you time to hire an attorney.  [exasperated]
Defendant:  Okay.
Judge:  What are you going to do
Defendant:  Hire an attorney, look for an attorney, I’m not sure how to go about this
Judge:  We’ll set it over for pre-trial conference.
Clerk:  Would like a date judge?  We can schedule you for January 4 . . .
Judge:  Thank you.  Ah stupid  [sighed].

The judge’s microphone was still on when he said “stupid.”

Throughout 2021, the judge came to the courthouse less and less, was not available to follow through on matters, did not respond to or communicate with staff, and did not attend all the administrative meetings.  The judge agrees that he made comments and sent emails to staff that had an impatient and angry tone.

Chastising, accusing, and embracing

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In 3 recent cases, judges have been sanctioned, in part, for hugging people in the courtroom.  In Public Admonishment of Gaujot (West Virginia Judicial Investigation Commission February 28, 2023), the judge was publicly admonished for his habit of hugging or touching people; for example, after an arraignment, the judge hugged a female defendant, telling her that he was going to make her his “special project.”  In Ryan-Touhill, Order (Arizona Commission on Judicial Conduct September 19, 2022), the judge was publicly reprimanded for stepping off the bench and embracing the decedent’s mother after her emotional testimony during the aggravation phase of a murder trial.

Most recently, the Florida Supreme Court publicly reprimanded a former judge for unduly chastising defense counsel and failing to curtail vitriolic statements directed at them during the penalty hearing in a high profile murder case and then at the end of the hearing embracing members of the prosecution, victims, and family members of victims.  Inquiry Concerning Scherer (Florida Supreme Court July 24, 2023).  The Court’s order does not describe the facts, but it accepted a stipulation and approved a proposed sanction based on the pleadings filed by the Commission on Judicial Qualifications. 

The case underlying the discipline proceeding involved the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida in February 2018.  After the defendant Nikolas Cruz pled guilty to 17 charges of murder and 17 charges of attempted murder, the prosecution sought the death penalty. 

During the penalty hearing, the judge chastised defense counsel for when and how they announced that their mitigation presentation was over.  Further, when defense counsel argued that the judge should curtail the vitriolic comments being directed at them by family members of the victims, although she acknowledged that some of the comments were inappropriate, the judge failed to take action to stop the comments or to enforce the prosecution’s obligations under a Florida statute requiring that the prosecution advise victims that statements “shall relate to the facts of the case and the extent of any harm . . .  and any matter relevant to an appropriate disposition and sentence.”  When a member of the defense team stated, “Judge, I can assure you that if they were talking about your children, you would definitely notice.”  The judge responded by accusing him of threatening her children; told him that he had violated “about every rule of professional responsibility;” and ordered that he leave the defense table and sit in the back of the courtroom, effectively denying him the ability to represent his client.  The judge then accused the elected public defender of instructing that attorney to “say something” about her children and denied the elected public defender’s request for a brief recess to consult with the defense team.

At the conclusion of the sentencing hearing, the judge stepped down from the bench in her judicial robe and embraced members of the prosecution team, victims, and family members of victims.  She contended that she had also offered to embrace defense counsel.

Noting that it was “mindful that the Cruz proceedings were emotional and highly contentious,” the Commission concluded that, “in limited instances during this unique and lengthy case, Judge Scherer allowed her emotions to overcome her judgment.”

The worldwide publicity surrounding the case created stress and tension for all participants.  However, regardless of the gravity of the accusations or level of attention given a matter, the Commission expects that a judge will ensure due process, order and decorum, and act always with dignity and respect to promote the integrity and impartiality of the judiciary.

Noting that the judge “recognized that at some points during the Cruz trial, her conduct created the perception of a bias against one party,” the Commission emphasized that “the appearance of bias tarnishes public confidence in the fairness and impartiality of the judiciary.”

No “carte blanche” for judicial speech

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In a recent judicial discipline case, the Michigan Supreme Court rejected a judge’s argument that part of her conduct was protected by the First Amendment, as 2 other courts did for other judges’ speech earlier this year.  See Judges’ weekends, living rooms, and free speech. 

As found by the Judicial Tenure Commission in its report and recommendation, under a performance-improvement plan imposed by the Chief Judge of her district, the judge was required to report when she got to work.  The Court found that, “purportedly” to comply with that requirement, the judge sent “ominous Bible verses” to the Chief Judge and court administrators when she arrived at the courthouse.  For example, the judge sent emails to her supervisors and colleagues that stated:

  • “Sovereign Lord, my strong deliverer, you shield my head in the day of battle.  Do not grant the wicked their desires, Lord; do not let their plans succeed.  Those who surround me proudly rear their heads; may the mischief of their lips engulf them.  May burning coals fall on them; may they be thrown into fire, into miry pits, never to rise.  Psalm 140:7-10.”
  • “But the cowardly, the unbelieving, the vile, the murderers, the sexually immoral, those who practice magic arts, the idolaters and all liars – they will be consigned to the fiery lake of burning sulfur.  This is the second death.  Revelation 21:8.”

When a court administrator asked her to stop sending these messages, the judge replied in an email:  “You brood of vipers, how can you who are evil say anything good?”

The judge argued that she was exercising her rights to free speech and religion when she sent the Bible verses.  Rejecting that argument, the Court explained:

The Bible verses quoted by respondent were, in the context of respondent’s e-mails, clearly intended to be insulting, discourteous, disrespectful, and menacing toward the recipients.  The e-mails also reflect a failure to demonstrate the professionalism demanded of judges.

The right of free speech generally entitles a person to, among other things, protection from government persecution based on speech. . . .  The goal of disciplinary proceedings is not punitive; rather, it is to “restore and maintain the dignity and impartiality of the judiciary and to protect the public.” . . .  Freedom of speech is not the freedom from all consequences for one’s actions.  Moreover, a “judge must . . . accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.” . . .  The First Amendment does not provide government employees carte blanche to engage in conduct that amounts to “insubordination” that “interfere[s] with working relationships.” . . .  This type of conduct is certainly beyond the pale for a member of our judiciary.  Respondent’s refusal to simply convey that she had arrived at work as required by the Chief Judge’s order amounted to insubordination and clearly interfered with multiple working relationships.

The Court concluded that sending the emails was part of the judge’s obstruction of court administration that also included her failure to comply with the performance plan and her intentional refusal to follow the Chief Judge’s orders.

In addition, the Court found that the judge committed misconduct by:

  • Abusing her contempt powers in 2 summary eviction proceedings by failing to hold proper hearings, forcing parties to pay illegal sanctions in civil actions, and unlawfully jailing a process server for civil contempt;
  • Summarily dismissing or adjourning cases because a party had used a process server that she believed was dishonest without making factual findings that process had not been served, and, when the Chief Judge admonished her to stop dismissing cases, “pretextually dismiss[ing] cases, misapplying the law to get to the result she wanted—not the result that was just or required;”
  • Intentionally disconnecting the videorecording equipment in her courtroom, purposefully failing to maintain a record of proceedings in her courtroom for weeks, using her personal cell phone to record proceedings, and lying to the Commission about disconnecting the equipment; and
  • Parking in a handicap loading zone at a gym, blocking in another car, placing an “official business” placard in her vehicle window that said, “this vehicle shall not be cited or impounded under penalty of law,” and flashing her judge’s badge when a police officer arrived.

In aggravation, the Court found that the judge committed much of the misconduct while she was “on the bench,” noting that “whether something occurs ‘on the bench’ is not literal, but rather depends on whether the conduct occurs in that person’s capacity as a judge. . . .”  The Court concluded:  “Respondent engaged in repeated, deliberate misconduct that besmirched the judiciary’s reputation and prejudiced the administration of justice.  The nature and pervasiveness of respondent’s misconduct requires the highest condemnation and harshest sanction.”

Because the judge’s term ended at the end of 2023, the Court rejected as moot the Commission’s recommendation that she be removed from office.  (As the Court noted, the judge had been taken off the 2022 ballot because she incorrectly stated on her affidavit of identity that she had paid all outstanding late filing fees under the state campaign finance act.)  Instead, the Court imposed a “conditional” 6-year suspension without pay that will only take effect if the now-former judge is elected or appointed to the bench within 6 years; if that happens, she will be suspended without pay until 6 years after the date of the discipline decision.  In re Davis (Michigan Supreme Court June 23, 2023).