Another Facebook fail

The Texas State Commission on Judicial Conduct publicly admonished a judge for posting comments about pending cases on her Facebook page.  Public Admonition of Slaughter and Order of Additional Education (April 20, 2015).  The Commission also ordered that she obtain 4 hours of instruction with a mentor on social media.  The judge told the Houston Chronicle she will appeal the admonition.

The judge’s Facebook page identified her as a judge and was accessible to any person who wished to view it.  Although comments about two additional cases were also covered by the admonishment, it focuses on posts about the jury trial of David Wieseckel on charges he kept a 9-year-old boy in a 6-foot-by-8-foot wooden enclosure.  In a post on April 26, 2014, the judge stated, “We have a big criminal trial starting Monday!  Jury selection Monday and opening statements Tues. morning.”  In response, the following day, someone posted on the judge’s page:  “One of my favorite Clint Eastwood movies is ‘Hang ‘Em High’, jus [sic] sayin [sic] your honor…..”

On April 28, in oral and written instructions, the judge admonished the jury not to talk about the case, for example, stating “no texting, e-mailing, talking person to person or on the phone or Facebook” and adding, “these rules apply to jurors the same as they apply to the parties and to me.”

On April 29, after the first day of testimony, the judge posted on her Facebook page, “Opening statements this morning at 9:30 am in the trial called by the press ‘the boy in the box’ case,” and “After we finished Day 1 of the case called the ‘Boy in the Box’ case, trustees from the jail came in and assembled the actual 6’x8’ ‘box’ inside the courtroom!”  At time, the “‘actual’ box” had not been admitted as evidence.  She also linked to a Reuters article entitled, “Texas father on trial for putting son in a box as punishment.”  The article had information about extraneous offenses, which the judge had instructed the jury to disregard and which had not been admitted into evidence.

Defense counsel filed a motion to recuse the judge and a motion for mistrial based on her Facebook comments.  Both motions were granted by other judges.

The judge argued her comments promoted “transparency,” encouraged “individuals to come watch the proceedings,” did not suggest her probable decision, and were true and based on publicly available information.  The Commission concluded, however, that the judge’s public Facebook posts were “clearly inconsistent with the proper performance of her duties and cast public discredit upon the judiciary or administration of justice in light of the considerable negative media attention given the case and her posting.”

Despite her contention that the information she provided was public information, Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the Wieseckel case or in other high-profile cases.  The comments went beyond providing an explanation of the procedures of the court and highlighted evidence that had yet to be introduced at trial.

The Commission also found that the judge’s Facebook activities interfered with her judicial duties, noting the recusal and mistrial.

This case has been added to the list of decisions and advisory opinions involving social media the Center for Judicial Ethics keeps here.

Top judicial ethics stories of 2014: Part 5

Since December 2, this blog has been summarizing the top judicial ethics stories of 2014.  Previous posts are Commit the oldest sins the newest kind of ways,” sex in chambers, inappropriate relationships, and the other side of the bench.

Grabbing headlines

In 2013, two judges made comments and rulings that attracted national and even international media attention; in 2014, both were disciplined after the judicial systems in the respective states had already corrected their rulings.

The Messiah judge

On or about May 29, 2013, Jaleesa Martin filed a petition to establish paternity of her son, naming Jawaan McCullough as the respondent.  On the birth certificate, the mother listed the child’s name as “Messiah Deshawn Martin.”  The mother requested that the court determine the child’s surname.  On July 18, the petition was heard by Child Support Magistrate Lu Ann Ballew.  During the hearing, the father requested that the child’s name be changed to “Jawaan Paxton McCullough, Jr.”  The magistrate reserved ruling on the name change until August 8.

At the beginning of the hearing on August 8, the father again requested that the child’s name be changed to “Jawaan Paxton McCullough, Jr.”  Later in the hearing, however, both parents agreed to the child retaining “Messiah” as his first name.

Contrary to the agreement of the parties, the magistrate ordered that the child’s name be changed to “Martin Deshawn McCullough.”  In a statement of facts and reasons, the magistrate found that “‘Messiah means Savior, Deliverer, the One who will restore God’s kingdom.  ‘Messiah is a title that is held only by Jesus Christ;’” and that “labeling this child ‘Messiah’ places an undue burden on him that as a human being, he cannot fulfill.”  After the magistrate issued her ruling, the father requested re-hearing before a chancellor.

On August 9, during an interview with WBIR-TV, which was publicly broadcast, the magistrate again stated that “the word ‘Messiah’ is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ;” and “it could put [the child] at odds with a lot of people and, at this point, he has had no choice in what his name is.”

On September 18, Chancellor Telford Forgety vacated the magistrate’s order as it related to the child’s name and ordered that the child’s first name remain “Messiah” and that his last name be changed to “McCullough.”

In October 2013, an investigative panel of the Tennessee Board of Judicial Conduct filed formal charges against Ballew.  In January 2014, the 4th Judicial District terminated Ballew’s employment as child support magistrate.

In April 2014, the Tennessee Board on Judicial Conduct censured the now-former child support magistrate.  The hearing panel concluded:

In ruling that the child’s given name be changed and basing her decision as noted in the Statement supporting her decision, Magistrate Ballew inappropriately injected and applied her own religious beliefs in her decision, thus violating the Code of Judicial Conduct.  We emphasize that Magistrate Ballew has every right to hold the very religious beliefs at issue in the case.  However, the imposition of those beliefs by Magistrate Ballew upon the litigants is the inappropriate conduct involved in this case.

The hearing panel also found that the magistrate’s statements during her TV interview while the case was still pending violated the prohibition on judge’s publicly commenting on pending cases.


Chronological age

In October 2008, the state of Montana charged Stacey Rambold, a high school teacher, with sexual intercourse without consent with a 14-year-old freshman girl.  The victim committed suicide in early 2010.  Later that year, the state agreed to defer prosecution if Rambold admitted to one count of sexual intercourse without consent and agreed to enter sex offender treatment.  However, the state reinstated Rambold’s prosecution after he was terminated from the treatment program.

In April 2013, the state and Rambold entered into a plea agreement under which Rambold agreed to plead guilty to one count of sexual intercourse without consent.  The state sought a sentence of 20 years in prison with 10 years suspended.  Rambold asked that all but 30 days be suspended.

In a hearing in August 2013, the judge sentenced Rambold to 15 years in prison with all but 31 days suspended and credit for one day served.  Speaking from the bench about his rationale for the sentence, the judge stated, among other things, that Rambold’s victim was “a troubled youth, but a youth that was probably as much in control of the situation as [Rambold], one that was seemingly, though troubled, older than her chronological age.”

The judge later explained to the press that “it was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”

As later found by the Montana Supreme Court, the judge’s “sentence and rationale, particularly his remarks that the 14-year-old victim was ‘older than her chronological age’ and ‘as much in control of the situation’ as her 47-year-old teacher, sparked immediate public outcry,” and the Judge Standards Commission began receiving hundreds of complaints.

Shortly after sentencing, the judge sought to modify Rambold’s sentence, apparently having concluded that a statute required a minimum of two years in prison.  The Montana Supreme Court blocked the judge’s attempt because he lacked authority to revise a sentence he had already issued, but the judge “nevertheless held a hearing, at which he made additional public remarks on the case and his actions.”

In February 2014, the Commission filed a formal complaint.  The judge waived formal proceedings, admitted that he violated the code of judicial conduct, and consented to a public reprimand or censure.  The Commission recommended censure.  The judge had earlier announced that he would not run for re-election; his term is ending December 31.

In April, the Montana Supreme Court vacated the teacher’s sentence and ordered that the re-sentencing be assigned to a different judge.  The Court held that the legislature clearly intended a four-year mandatory minimum sentence for a person convicted of sexual intercourse without consent when the victim is less than 16 years old and the offender is three or more years older than the victim (absent certain exceptions that did not apply) and that Judge Baugh had lacked statutory authority to suspend all but 31 days of the teacher’s sentence.

In June, the Montana Supreme Court censured the judge and suspended him for 31 days without pay.  The Court held:

 Judge Baugh’s comments in open court in this case disregarded longstanding Montana law that a person under the age of 16 is legally incapable of consenting to sexual intercourse.  His assertion that the victim was “older than her chronological age” is inconsistent with Montana law categorizing child victims of sexual offenses based on their chronological age alone, rather than on subjective perceptions of physical maturity and situational control.  In addition, Judge Baugh’s later attempt to retract his sentence and rationale was inconsistent with Montana law.  Finally, Judge Baugh made additional inappropriate public statements attempting to justify his actions.  Through his unlawful sentence, inappropriate rationale, and subsequent public comments, Judge Baugh has eroded public confidence in the judiciary and created an appearance of impropriety, therefore violating the Montana Code of Judicial Conduct.  He has caused Montana citizens, as well as others, to question the fairness of our justice system and whether prejudice or bias affected the outcome of the Rambold case.  There is no place in the Montana judiciary for perpetuating the stereotype that women and girls are responsible for sexual crimes committed against them.

In September, Rambold was re-sentenced to 15 years in prison with five years suspended; he has appealed.