Category Archives: Public comment

Election motives  

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In several judicial discipline cases in 2017, although the sanctioned misconduct did not directly involve their campaigns, the judges’ concerns about their election chances were cited as a reason for their conduct.

An FBI agent testified that Judge Dawn Segal told him she was concerned about her forthcoming retention election and believed then-judge Joseph Waters to be politically influential when she listened to his requests for favorable treatment for parties in 3 cases to please him.  The Pennsylvania Supreme Court upheld her removal.  In re Segal, 173 A.3d 603 (Pennsylvania 2017).

For example, Waters had called Judge Segal and told her that a petition for reconsideration had been filed from her previous refusal to open a default judgment in a code enforcement complaint against Judge Angeles Roca’s son for failing to pay Philadelphia’s business privilege tax for his barbershop.  The same day as his call, Judge Segal reviewed the petition and issued a rule to show cause why the default judgment should not be opened.  She and Waters then engaged in the following phone conversation, which was recorded by the FBI as part of its wiretap surveillance of Waters

Segal:  Hi, I figured it out and I took care of it.

Waters:  Oh, okay.  Thank you.

Segal:  I got it.  Alright.  It was on my um, queue, so I did it.  So tell her it’s done.

Waters:  Thank you very much ….

(Also in November, the Pennsylvania Supreme Court upheld Judge Roca’s removal for seeking Water’s advice about her son’s case and acquiescing in his offer to communicate ex parte with Judge Segal.  In re Roca (Pennsylvania Supreme Court November 22, 2017).  Waters was removed in 2016 following his guilty plea to federal mail fraud and honest services wire fraud charges.  In re Waters, Opinion and order (Pennsylvania Court of Judicial Discipline January 12, 2016).)

2 other discipline cases involved judge-candidates giving interviews about their cases in the midst of their campaigns.

The Nevada Commission on Judicial Discipline suspended a judge for 60 days without pay for making comments to a reporter about 2 pending cases to protect his re-election, in addition to other misconduct.  In the Matter of Potter, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline November 22, 2017).

In October 2014, the judge held a temporary custody hearing and ruled that a child should reside with his father while his mother, Michelle Angeles, a lieutenant in the Air Force, was deployed in Cuba.  After Angeles divorced Cardona in 2012, she had married a woman.

The Las Vegas Review Journal published an article in which Angeles’s attorney, David Mann, suggested that the judge had ruled against his client based on her sexual orientation.  The judge contacted the reporter, and there was a follow-up article entitled “Judge Defends Custody Decision in Lesbian Mom Case.”  In the article, the judge stated that he granted Angeles physical custody “knowing full well she was gay.”  He also stated that “there’s no way” he could find it to be in the child’s best interest to stay with his stepmother, providing the paper “with profane text messages the stepmother had sent the father.”  The judge also told the reporter that Mann “might have an axe to grind” as he had “handled Mann’s personal divorce this year, and Mann did not show up for trial.”

In the discipline proceeding, the judge explained that he felt that he had to respond to the article because the election was 12 days away, he had an opponent, the article was a lie, he was not anti-gay, and he wanted to protect his reputation and the integrity of the judiciary.  The Commission found that the judge had put his desire to be re-elected ahead of the judicial canons.

Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for making public comments about a murder case pending before him in 3 media interviews, in addition to other misconduct.  In the Matter of Piampiano, Determination (New York State Commission on Judicial Conduct March 13, 2017).  The Commission noted that the “fact that respondent made these statements in media interviews at a time when he was a candidate for election to Supreme Court raises a question as to whether his public comments were motivated by political concerns.”

In September 2015, the judge, then on the county court, was nominated for election to the supreme court, the general jurisdiction trial court in New York State.

On or about October 8, after approximately 8 days of jury deliberations, the judge granted a mistrial in a high profile murder case in which Charles Tan was charged with shooting his father at their family home.  The defense moved for an order of dismissal; the assistant district attorney opposed the motion because they intended to retry Tan.  The judge ordered the parties to appear before him on November 5.

The same day the mistrial was declared, the judge agreed to 1-on-1 interviews about the case in his chambers with reporters from 2 TV stations and a newspaper.

As the Commission explained:

While he often responded to the reporters’ questions about the Tan case with general statements about procedures and the legal system, he should have recognized that any statements he made in that context would be understood as pertaining to Tan and therefore were problematic.  His statements, however, went well beyond general explanations of the law.  He discussed legal issues in the case (including his denial of a request for an accomplice charge), and he provided a description of his interactions with the jury and his sense of the jury’s deliberations.

The Commission noted as “[e]specially troubling” the judge’s description of the defendant in an interview as a “sympathetic’ figure,” raising doubts about his impartiality and undermining public confidence in the impartial administration of justice.

 

Let it go 2

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A previous “let it go” post described judges’ improper responses to a party’s appeal or a motion to disqualify.  Several recent judicial discipline cases portray similar judicial over-reaction to an election challenge or public criticism.

The Arizona Supreme Court suspended for 90 days without pay a justice of the peace who, when he faced opposition for re-election, used the power, prestige, and resources of his office to retaliate against his opponent and to conduct his own campaign, rather than relying on fair campaigning and the political process.  For example, the judge caused his opponent’s work hours as a pro tem justice of the peace to be significantly reduced and eventually precluded him from serving on the justice court.  The judge also used his official court e-mail account for campaign-related communications, including using unprofessional and undignified language in the communications regarding his opponent.  He passed out flyers at 2 official court events and confronted a clerk during court hours at the courthouse about her Facebook support for his opponent.  In the Matter of Grodman, 2015 Ariz. LEXIS 319 (September 23, 2015).  See also Inquiry Concerning Schwartz (Florida September 10, 2015) (sanctions for, in addition to other misconduct, a rude and intemperate interaction with a store owner who refused to display her campaign sign).

The Texas State Commission on Judicial Conduct publicly warned a judge who gave an interview to a newspaper reporter to defend her decision in a sexual assault case.  Public Warning of Howard and Order of Additional Education (Texas State Commission on Judicial Conduct September 5, 2015).

The judge had issued a judgment of deferred adjudication and placed under community supervision a defendant who pleaded guilty to felony sexual assault.  At the time of the assault, the victim had been 14, and defendant had been 18.  As a condition of community supervision, the judge ordered the defendant to complete 250 community service hours at a rape crisis center.  Several media stories reported that the executive director of the rape crisis center objected to the defendant performing his community service hours at the center.  The judge changed the condition.  In responding to the Commission’s inquiry, the judge testified that she felt “under attack for giving probation in this sort of case, which happens all the time in Dallas County” and that she could not understand why her decision was “getting such flack.”

Therefore, she agreed to speak to a reporter from the Dallas Morning News to provide the public “a more truthful and complete story” regarding her decisions in the case.  As a result of their conversation, the newspaper published an article with the headline:  “Judge says sexually assaulted 14-year-old ‘wasn’t the victim she claimed to be.’”  According to the article, the judge asserted that the defendant was not a typical sex offender and that the victim was not a virgin and “wasn’t the victim she claimed to be” but had been sexually active and given birth to a baby before the sexual assault.  The article included a response from the victim’s mother, who was “livid” about the judge’s comments and denied that the victim had ever been pregnant.

The Commission concluded that the judge’s decision to speak to the reporter, “regardless of motivation, constituted willful conduct that was inconsistent with the judge’s performance of her duties.”

Judge Howard’s decision to publicly share unflattering information about a fourteen-year-old rape victim, at best, reflects poor judgment on the part of the judge.  The fact that some of the information disclosed by Judge Howard about the victim was not accurate serves as an unfortunate example of why it is important that judges avoid making public comments about pending cases.

The Commission found that the judge’s “reckless and inaccurate public statements about the sexual history” of the “victim not only re-victimized the victim in the Young case, but also potentially harmed other sexual assault victims by discouraging them from reporting these crimes or participating in their prosecution.”

The Commission emphasized that “an independent judge accepts that she may face criticism for her decisions, and does not succumb to the temptation to publicly defend an unpopular decision in the press.  A judge who is not independent cannot be impartial.”  The Commission concluded that the judge “undermined the public’s confidence in her impartiality and independence by defending her rulings in the press, giving rise to a legitimate concern that she would not be fair or impartial in other sexual assault cases.”