Let it go 2

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.”