Category Archives: Top stories of 2016

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

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In the courthouse

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

Abusing the prestige of office

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

False statements

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

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

Changes in the Georgia Judicial Qualifications Commission:  Top judicial ethics and discipline stories of 2016

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In November 2016, Georgia voters approved a constitutional amendment that abolished the extant Judicial Qualifications Commission in favor of a commission with a composition, manner of appointment, and governance to be determined in future legislation by the General Assembly.  As widely reported, the bill to put the measure on the ballot was co-sponsored by a legislator who had been a judge until he resigned while under investigation by the Commission after a female attorney in a divorce case alleged in a motion to disqualify that he had sexually harassed her; the comments, recounted in a hearing on the motion, were too graphic to be repeated on air or in an on-line article, according to a TV station.  Legislators defended the measure, however, by pointing to complaints of unfair treatment by two of the hundreds of judges who have had complaints filed against them with the Commission.

Prior to the amendment, there were 7 members on the Commission:  2 judges appointed by the Georgia Supreme Court, 3 attorneys appointed by the State Bar, and 2 public members appointed by the Governor.  Under the implementing legislation, the Bar’s appointment authority was eliminated.  (According to news reports, the Speaker of the House has had a bar complaint pending against him for years and threatened to pursue legislation to eliminate mandatory Bar membership if the Bar campaigned against the constitutional amendment, which it decided not to do.)  On the newly constituted commission, there would be 3 attorney members, 1 each appointed by the Speaker of the House and the President of the Senate from lists of nominees by the Bar, and 1 appointed by the Governor to serve as chair.  The Supreme Court would appoint 2 judge members.  The Speaker and the President would appoint 1 citizen member.

That legislation also drastically increased the secrecy of the Commission, making proceedings confidential through the formal charges, hearing, and recommendation stages and informing the public only if the Georgia Supreme Court decided to issue a public reprimand or censure or to suspend, retire, or remove the judge.  Prior to the amendment, the Commission’s proceedings became public at the filing of formal charges, which is also the rule in 26 states with an additional 6 states opening up after the judge files an answer to the charges and an additional 2 making the hearing public.  The level of confidentiality adopted for the new Georgia commission seems inconsistent with the legislators’ claims that more accountability was the goal of the amendment; the less public a commission’s actions, the less likely any unfair treatment of judges or by judges will be disclosed.

However, in late January, new legislation was introduced called “The Judicial Qualifications Commission Improvement Act of 2017.”  Among the changes if it is enacted would be a reversion to the former confidentiality rule, with all pleadings and information in disciplinary matters subject to disclosure to the public and all hearings and proceedings open and available to the public after the filing and service of formal charges.

The new bill also proposes a 10-member commission, divided into a 7-member investigative panel and a 3-member hearing panel.  The 7 members of the investigative panel would be appointed by the Georgia Supreme Court (2 judges), the Speaker of the House (1 attorney and 1 citizen), the President of the Senate (1 attorney and 1 citizen), and the Governor (1 attorney who would be chair).  The hearing panel would consist of 1 citizen member appointed by the Governor and 1 attorney member and 1 citizen member appointed by the Court.  The investigative panel would be responsible for the commission’s investigative, prosecutorial, and administrative functions; the hearing panel would adjudicate formal charges filed by the investigative panel and make recommendations to the Supreme Court as to disciplinary and incapacity orders.

For more information on the composition and confidentiality of the state judicial conduct commissions, see the tables in the most requested Center resources section of the Center’s web-site.

Other posts on the top judicial ethics and discipline stories of 2016

2016 Facebook fails:  Top judicial ethics and discipline stories of 2016

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Judges got in trouble for injudicious, off-the-bench comments before recent revolutions in on-line communications, but the greater temptation to vent posed by the new-fangled social media and the greater potential for venting to “go viral” were illustrated in several cases in 2016.

Dropping his First Amendment defense to charges brought by the Kentucky Judicial Conduct Commission, a judge agreed to a 90-day suspension without pay for, in addition to other misconduct, publishing comments on Facebook that accused the county commonwealth’s attorney of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth’s attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth’s attorney while the case was pending before the Kentucky Supreme Court.  In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016).  For example, the judge had posted, “History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming he is entitled to an all-white jury panel.  No matter the outcome, he will live in infamy.”  The judge also made numerous similar comments during a presentation to the Louisville Bar Association.  For a longer summary of the case, see the previous post here.  Later in 2016, reviewing Judge Stevens’s decision, the Kentucky Supreme Court held that he did not have the discretion to dismiss a randomly selected jury panel that, despite its unrepresentative appearance, was drawn from a jury pool that reflected a fair cross section of the community.

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Accepting a stipulation and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for making improper public comments on her Facebook account about a matter pending in another court and failing to delete related public comments by her court clerk.  In the Matter of Whitmarsh, Determination (New York State Commission on Judicial Conduct December 28, 2016).

The judge sits on the Morristown Town Court.  On March 3, 2016, a felony complaint was filed in the Canton Town Court alleging David VanArnam, who was running for the Morristown town council, had filed nominating petitions in which he falsely swore that he personally witnessed the signatures on the petitions.  On March 13, in a post on her Facebook account, the judge commented that she felt “disgust for a select few,” that VanArnam had been charged with a felony rather than a misdemeanor because of a “personal vendetta,” that the investigation was the product of “CORRUPTION” caused by “personal friends calling in personal favors,” and that VanArnam had “[a]bsolutely” no criminal intent.  The judge also stated, “When the town board attempted to remove a Judge position – I stood up for my Co-Judge.  When there is a charge, I feel is an abuse of the Penal Law – I WILL stand up for DAVID VANARNAM” [sic] [emphasis in original].  The judge also posted a web-site link to a news article reporting when the charge against VanArnam had been dismissed.

The judge had intended her post to be seen only by her 352 Facebook “friends.”  However, a few years earlier, she had set her Facebook privacy settings to “public” for an unrelated reason, and, at the time of her posting about the VanArnam case, her privacy settings were still set to public although she did not realize that.  The judge’s post about the VanArnam case was shared at least 90 times by other Facebook users.  A local news outlet posted an article on its web-site reporting on the judge’s Facebook comments and re-printed her post.

The Morristown Town Court Clerk posted on the judge’s Facebook page, “Thank you Judge Lisa!  You hit the nail on the head.”  The judge did not delete the court clerk’s comment, which was viewable by the public.

In 2 comments posted on the judge’s Facebook page, the judge’s husband questioned whether the complainant in the VanArnam case had a “close personal relationship” with “our prosecutor” and called the matter a “real ‘Rain Wreck’” referring to Mary Rain, the county District Attorney.  The judge clicked the “like” button next to some of the comments to her post, including a comment stating that the charges against VanArnam were “an abuse of our legal system” and “uncalled for;” a comment criticizing the district attorney; and another comment by her husband, stating, “This is what’s wrong with our justice system.”

On March 28, the judge removed all posts concerning the VanArnam matter from her Facebook page after receiving a letter from District Attorney Rain questioning the propriety of her comments and requesting her recusal from all matters involving the District Attorney’s office.  Soon after receiving that letter, the judge granted that request.

The Commission stated:

Comments posted on Facebook are clearly public, regardless of whether they are intended to be viewable by anyone with an internet connection or by a more limited audience of the user’s Face book “friends.”  Even such a “limited” audience, we note, can be substantial, and to the extent that such postings can be captured or shared by others who have the ability to see them, they cannot be viewed as private in any meaningful sense. . . .

Regardless of respondent’s intent, her comments — and her “likes” of comments criticizing the District Attorney that were posted in response to her message — conveyed not only respondent’s personal view that the prosecution was unjust, but the appearance that she was impugning the integrity of the prosecution and endorsing others’ criticism of the District Attorney’s office and the District Attorney personally.  Her statements, which were viewable online for 15 days and were reported by the media, were inconsistent with her duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . and resulted in her recusal from all matters involving the District Attorney’s office.  Moreover, by referring to her judicial position in the same post (stating that she had once “stood up for my Co-Judge”), respondent lent her judicial prestige to her comments, which violated the prohibition against using the prestige of judicial office to advance private interests . . . .

Noting that a judge is required to “‘require similar abstention [from public comment about pending proceedings] on the part of court personnel subject to the judge’s direction and control,” the Commission stated that the “comments posted by respondent’s court clerk on respondent’s Facebook page were also objectionable.”

The Commission took the “opportunity to remind judges that the Rules Governing Judicial Conduct apply in cyberspace as well as to more traditional forms of communications and that in using technology, every judge must consider how such activity may impact the judge’s ethical responsibilities. . . .  While the ease of electronic communication may encourage informality, it can also, as we are frequently reminded, foster an illusory sense of privacy and enable too-hasty communications that, once posted, are surprisingly permanent.”  The Commission noted that the Advisory Committee on Judicial Ethics has cautioned judges about the public nature and potential perils of social networks, advised that judges who use such forums must exercise “an appropriate level of prudence, discretion and decorum” to ensure that their conduct is consistent with their ethical responsibilities, and said it is essential that judges who use such forums “stay abreast of new features of and changes to any social networks they use.”  The Commission noted “these are excellent guidelines for any judge who joins and uses an online social network.  At a minimum, judges who do so must exercise caution and common sense in order to avoid ethical missteps.”

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Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for his Facebook posts about a case, political matters, and a fund-raiser for a local church.  In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016).  The judge’s Facebook account identified him as the probate court judge for Oconee County, and the account and all of his posts were accessible to all members of Facebook.

Z.H.’s parents had filed a wrongful death suit on behalf of his estate against the police department.  The case was settled for $2,150,000.  The settlement received extensive press coverage.

While the matter was before the probate court for administration of the estate, the judge expressed his opinion about the settlement on Facebook, posting:  “In the end it’s all about the money.  Always.  Unfortunately, I see it EVERYDAY.”  The judge later added:  “Once ck is in hand, they’ll disappear.”

The judge also made extensive political posts on Facebook, including ones in which he appeared to endorse a presidential candidate.  He also engaged in fund-raising for a local church in a post.

See also In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016) (6-month suspension for sexually explicit Facebook relationship with a woman the judge met in his official capacity); Commission on Judicial Performance v. Clinkscales, 191 So. 3d 1211 (Mississippi 2016) (public reprimand of a former judge for endorsing a political candidate on social media, in addition to other misconduct); Public Reprimand of Uresti and Order of Additional Education (Texas State Commission on Judicial Conduct October 11, 2016) (public reprimand for Facebook posts that promoted the financial interests of a relative and a former judge, in addition to other misconduct).

See “social media and judicial ethics” in the most-requested Center resources section of the Center web-site for a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials.

Other posts on the top judicial ethics and discipline stories of 2016

Inappropriate e-mails in Pennsylvania:  Top judicial ethics and discipline stories of 2016

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In November 2016, the Pennsylvania Attorney General released a report on an investigation of e-mails exchanged among prosecutors, judges, and others involved in the criminal justice system from 2008 to 2015.  Investigators used a computer program and a list of terms related to race, religion, sex, profanity, and other content to search more than 6.4 million documents found on the attorney general’s servers.  Although, as the Attorney General stated, nothing in the e-mails suggested there were “ex parte communications between members of the judiciary and OAG employees about cases or matters affecting the administration of justice,” investigators did find 11,930 inappropriate e-mails and classified 38 individuals as high-volume senders of inappropriate e-mails, including 8 senior government officials, 2 supreme court justices, and 3 judges.  Those 5 judicial officials are not identified by name in the report, but the Attorney General stated that it had referred them to the Judicial Conduct Board.

When the report was released, Justice Michael Eakin had already resigned after the Board filed a complaint alleging that he sent offensive e-mails to and received offensive e-mails from other Pennsylvania judges and attorneys, particularly defense attorneys and employees of the office of attorney general.  Based on stipulations of fact in lieu of trial, in March, the Pennsylvania Court of Judicial Discipline fined the now-former justice $50,000 for participating in the exchange of e-mails “with their imagery of sexism, racism, and bigotry” that displayed “arrogance and the belief that an individual is better than his or her peers,” which was “antithetical to the privilege of holding public office, where the charge is to serve, not demean, our citizens.”  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016).  For previous posts on the case, see here and here.   In late 2014, Supreme Justice Seamus McCaffery had retired while the Board was investigating allegations against him, including allegations he had exchanged hundreds of sexually explicit e-mails with a member or members of the Office of Attorney General.

In a press release in response to the Attorney General’s report, the Board stated that, “Consistent with its obligations under the Pennsylvania Constitution, including its obligations of confidentiality, the Board will conduct an independent examination” of the e-mails sent by members of the Pennsylvania judiciary found on the servers of the Office of Attorney General, “in conformity with its recently announced ‘Statement of Policy Regarding Electronic Communications’ and will take any and all steps necessary to preserve the integrity of the judiciary.”  The Board had adopted the statement of policy earlier in November, noting it had received questions from “many judicial officers at all levels of Pennsylvania’s judiciary . . . relating to the Board’s investigation of alleged judicial misconduct related to the use of electronic communications.”

The policy defines, among other terms, “electronic communications,” “inappropriate,” and “misconduct perpetuated by electronic communications.”  For example, “inappropriate” is defined as:

Material that is offensive to a viewer of ordinary and reasonable sensibilities.  The term includes, but is not limited to, material that constitutes:  legal pornography, sexually-suggestive content, including suggestive depictions of nudity short of pornography; stereotypical depictions of gender, including misogynistic material and material that relates to domestic violence, gender identity or expression, religion, sexual orientation, socioeconomic status, race or ethnicity.

The Board explained that it will consider “the degree of the judge’s knowledge of and participation in electronic communications containing inappropriate or illegal content or misconduct perpetrated by electronic communications, and the judge’s response,” the frequency of the communications, the “degree of offensiveness of the electronic communications to a viewer of ordinary and reasonable sensibilities,” the “nature of the illegality of any electronic communications,” the “nature of any misconduct perpetrated by electronic communication,” and the potential effects on the independence, integrity, and impartiality of the judiciary, and the public’s confidence in the judiciary.  With respect to the judge’s involvement in the communications, the Board will consider:

  1. Whether the judge was a sender, forwarder, or had exchanged, i.e., sent and received, and/or forwarded, illegal or inappropriate electronic communications, or misconduct perpetrated by electronic communications;
  2. Whether the judge was only a recipient of illegal or inappropriate electronic communications, or misconduct perpetrated by electronic communications;
  3. Giving weight to the relevant facts and circumstances in a particular case, whether the judge took any reasonable steps in response to receiving inappropriate or illegal electronic communications or misconduct perpetrated by electronic communications or misconduct perpetrated by electronic communications; and
  4. If necessary, whether the judge reported inappropriate or illegal electronic communications or misconduct perpetrated by electronic communication to any appropriate criminal, investigatory, or administrative authority.

The Board explained that the policy only provided guidance, did “not have the force and effect of law,” and was not binding on members of the judiciary or the Board.

Previous posts on the Top judicial ethics and discipline stories of 2016

Corruption and cooperation in Arkansas
Top judicial ethics and discipline stories of 2016

Corruption and cooperation in Arkansas:  Top judicial ethics and discipline stories of 2016

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By the time a federal grand jury indicted Joseph Boeckmann in October, he had been off the bench for almost a year and out of office for over 6 months as a result of proceedings by the Arkansas Judicial Discipline and Disability Commission.

In a statement of allegations filed in November 2015, the Commission had alleged that, in addition to other misconduct, Boeckmann had used his judicial status and influence “to insinuate compliance” from young Caucasian male litigants with “his personal and sexual desires.”  (Boeckmann agreed not to sit while the allegations were pending, and the Arkansas Supreme Court appointed a judge to handle his docket.)  According to the statement, Boeckmann offered certain defendants in traffic or criminal citation cases community service or “substitutionary sentences;” he would instruct the men to pick up cans along roads or at his home and photograph them as they were bending over, keeping “these photographs of male litigants’ buttocks in his home for his own personal use.”  In addition, the statement alleged that, when some of the defendants went to his home or office as directed to perform community service, he solicited sexual relations with them in exchange for reductions of or dismissals of their court fines and costs.  In his answer, the judge denied the allegations.

More victims came forward after the Commission’s allegations were reported in the news media, and the Commission added more examples of the judge appearing “to act as employer, financer, and, on occasion, intimate partner of some defendants appearing before him” in an amended statement filed in January 2016.  Some of the allegations related to payments by Boeckmann to defendants who appeared before him and telephone communications by him to witnesses during the Commission investigation.  Boeckmann also denied the allegations in the amended statement.

In early May, the Commission notified Boeckmann’s attorney that it might file a second amended statement of allegations based on additional evidence, including thousands of photographs and additional witnesses who had provided statements regarding sexual misconduct by Boeckmann when he was a private attorney and a deputy prosecuting attorney.  On May 9, the Commission announced Boeckmann’s resignation and permanent removal and concluded its case against him.  In its press release, the Commission thanked several state agencies that had assisted in its investigation, including the cyber-crimes unit of the Arkansas Attorney General and the state police.

In its October press release announcing the indictment of Boeckmann, the U.S. Department of Justice noted that the Commission and the state police had assisted the FBI in its investigation.  The indictment charges that Boeckmann used his official position “to obtain personal services, sexual contact, and the opportunity to view and to photograph in compromising positions persons who appeared before him in traffic and misdemeanor criminal cases in exchange for dismissing the cases.”  The indictment is based on the testimony of 9 men who were 16 to 22 at the time they appeared before Boeckmann from 2009 to 2015.  There are 8 counts of wire fraud, 2 counts of witness tampering, 1 count of federal program bribery, and 10 counts of violating the Travel Act.

In its “Best and Worst of 2016” issue, the Arkansas Times named Boeckmann as “Best disgraced” and named Commission Deputy Executive Director Emily White as “Best hero” for her “dogged, months-long investigation into the Boeckmann case [that] put an end to what Boeckmann’s alleged victims say was decades of the powerful former judge and prosecutor preying on vulnerable victims.”

At the request of the Commission, the Arkansas Governor proclaimed December 9, 2016 Arkansas Anti-Corruption Day.  In a press release, the Commission explained that it had requested the proclamation “to remind our citizens that they have watchdog agencies they can turn to and that each one of us can play a role in making sure that our state and local government is free from corruption.”

 The Commission thanked other agencies again on the first day of business in 2017 when it announced the removal of Judge Timothy Parker based on his resignation on the last day of 2016.  The press release cited the county sheriff, the police chief, the state attorney general for the cyber-crimes unit, the prosecutor coordinator’s office, the special prosecuting attorney, and many court staff, public officials, legal professionals, and witnesses.  The judge admitted allegations that he performed probable cause determinations in cases involving friends or former clients and released them on their own recognizance.  However, the judge contested other allegations on which he would have faced disciplinary charges if his resignation had not rendered them moot.  The other allegations included that he set bond for women or their family members or friends in exchange for sexual favors and traded cash and prescription pills for sexual favors or money.

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

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  • “Well, when you trust a woman that’s what you get.” Judge to defendant who blamed his failure to make a payment on his ex-fiancé to whom he had allegedly entrusted the money.  In the Matter of Scattergood, Order (New Jersey Supreme Court March 8, 2016) (reprimand and bar of former judge for this and other misconduct).
  • Fees and costs “did not seem fair and . . . may be a scheme for the State to make money.” Judge to defendant who challenged his obligation to pay after pleading guilty, although the judge added that the defendant was receiving a benefit by avoiding an assessment of points on his license.  In the Matter of Scattergood, Order (New Jersey Supreme Court March 8, 2016) (reprimand and bar of former judge for this and other misconduct).
  • “You say one more word to me, you’re out of here, one more word. Go ahead and say it.  Tempt me.”  Judge to defendant who became argumentative after the court officer confiscated his cell phone and the judge required that he pay $50 for its return.  In the Matter of Scattergood, Order (New Jersey Supreme Court March 8, 2016) (reprimand and bar of former judge for this and other misconduct).
  • “Sneaky snake.”  Judge about party and his attorney during hearing on a notice of transfer, which the judge acknowledged was proper.  Re Davenport (Tennessee Board of Judicial Conduct May 18, 2016) (reprimand for this and related misconduct).
  • “Your husband must be rolling over in his grave right now;” and, “You need more than psychological help. I wish I could do more to you.  You don’t seem like you would do very well in jail.  I just arrested someone earlier today for violating a peace bond;” and, “What do you own?  Where do you work?  How do you pay your bills?  Who’s going to take care of you?”  Judge to recent widow in peace bond proceeding brought by her stepchildren accusing her of inappropriate conduct.  In re Laiche, Opinion (Louisiana Supreme Court March 15, 2016) (removal for this and other misconduct).
  • “I don’t know what the hell you two are thinking, but get it together. All of you.” and “I don’t give a crap about any of you.”  Judge to parents in a custody hearing.  Hancock, Order (Arizona Commission on Judicial Conduct May 12, 2016) (reprimand).
  • “I fell [sic] sorry for everybody from here on now.” Judge just after holding a self-represented defendant in contempt for what she said and her “attitude” and before holding a second self-represented defendant in contempt for his “insolent behavior.”  In re Free (Louisiana Supreme Court June 29, 2016) (1-year suspension without pay for this and other misconduct).
  • “What, your skin was ashy? You were ashy trying to get your skin right with some Aveeno?”  Judge to defendant who stole Aveeno lotion from a Wal-Mart; the judge’s statement caused audible laughter in the courtroom.  In re Free (Louisiana Supreme Court June 29, 2016) (1-year suspension without pay for this and other misconduct).
  • “Now see how I knew that, you are a pretty good sized girl. You are like me, you are pretty good sized.  I figured out the baby clothes.  That seems to be like a common thing, people just go to Wal-Mart and steal baby clothes.  Man, go to Baby Gap or something if you are going to take a chance, get on the big ones.  Go for something worth something, man.”  Judge to 2 women who pled guilty to shoplifting from a Wal-Mart; the judge’s statement provoked laughter in the courtroom.  In re Free (Louisiana Supreme Court June 29, 2016)) (1-year suspension without pay for this and other misconduct).
  • “For your consideration, there’s a blood drive outside and if you do not have any money and you don’t want to go to jail, as an option to pay it, you can give blood today.” Judge while presiding over a docket to recover court-ordered costs, fees, fines, and restitution.  In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary January 21, 2016) (censure).
  • “So, if you choke them, that’s a felony.  If you punch them in the eye, that’s a misdemeanor. . . . If you punch them in the eye and then choke them, they’ll never know you choked them. . . . That’s some crazy stuff, man.  It’s like they want to legislate for every little thing….  Oh, you touched the right finger?  That’s a different thing there now.  Oh you grabbed her by the left arm, that’s a different crime.    And, I say that, but women beat upon the men too.  I see that a lot now days.”  Judge in exchange with assistant district attorney during proceedings in a domestic violence case.  In re Free (Louisiana Supreme Court June 29, 2016) (1-year suspension without pay for this and other misconduct).
  • “My observation is that I just don’t know anybody that — nicer than you and your wife. Your kids come to church.  If I don’t let you — if I don’t modify [your probation] at least to some extent, that I would consider my job to be, in this regards, a farce.  There’s nobody else — if I don’t modify it under these circumstances, then I would never modify it for anybody, and although there’s a lot of sensitivity in these types of cases, it’s clear that the — the young lady’s — she is indifferent about it.  Her father is indifferent about it.  The Chief of Police, who had nothing bad to say about you; ….  So, I’ll say no more, and I applaud you for becoming a better person and I hereby, because of your conduct, I’m going to — considering the modification, I’m going to go a step further.  I hereby terminate you, Anthony, Garcia, from all conditions of probation.  You have met all of ’em.  You are an asset to the community, to the church, to your family, and your friends.”  Judge terminating early the probation of a man with whom he was acquainted through their attendance at the same church and participation in the choir.  In re Best (Louisiana Supreme Court June 29, 2016) (15-day suspension without pay for this and other misconduct).
  • “This conversation never happened.”  Judge to deputy district attorney after an ex parte communication about a case that was pending sentencing before him.  In the Matter of Scott, Decision and order (California Commission on Judicial Performance February 17, 2016).
  • “Why do defense lawyers not want to try cases in front of me cuz they know I’ll put people in jail.”  Judge interrupting a private meeting between the family members of the victims in a murder case and members of the district attorney’s office after a hearing in the case.  In re Free (Louisiana Supreme Court June 29, 2016).
  • “If I had cash [or money], I’d give you a tip.”  Judge to female assistant district attorney when she brought him coffee after he handed her his empty coffee mug.  Public Admonishment of Bergeron (California Commission on Judicial Performance January 25, 2016) (admonishment for this and other misconduct).
  • “I’m sure you are just as busy with your physical therapy, workout time and all. I don’t appreciate you checking on me — I don’t work for you and never will.  I was elected by the citizens of this county, unlike you.  I would hope you and your pals upstairs would have better things to do with your time as Superior Court Judges than keep a journal on another Judge’s comings and goings.  Pathetic . . . get a life.  I look forward to running against you for [presiding judge].  The Court will be a lot better off without you in some position of assumed power.  Good luck in the campaign.  Have a really nice night.”  Judge in e-mail to assistant presiding judge after she asked where he had been and about his availability to help cover the court’s calendar.  Inquiry Concerning Trice (California Commission on Judicial Performance February 4, 2016) (censure for this and other misconduct).
  • “[I like how she] shoves [or rams] it up [the law guardian’s ass].”  Judge about deputy attorney general during a break in court proceedings in a Department of Children and Families case.  In the Matter of Portelli, Order (New Jersey Supreme Court May 18, 2016) (reprimand for this and other misconduct).
  • “You look nice today.” Judge in note on legal pad he showed to family specialist while she was testifying.  In the Matter of Portelli, Order (New Jersey Supreme Court May 18, 2016) (reprimand for this and other misconduct).
  • “I’m an African American. African American talk about all kind of crazy things at all times.  So you don’t know when they mean anything.  You don’t even know what — if they talk to you about certain thing this minute, the next minute they talk to you about something else.”  Judge in discipline proceedings for rendering a judgment in a collections case without giving the African American defendants a meaningful opportunity to be heard.  In re Gremillion (Louisiana Supreme Court June 29, 2016) (removal).
  • “I have a public official job that this will kill me. It will become very bad.  I can’t tell you because if I tell you, I can get in trouble for that.  But I won’t.  I was on the phone with my wife, that’s why I was swerving.  This will kill me more than the average guy.”  Judge to trooper who stopped him for drunk driving; judge subsequently said “beyond the point of discretion, I’m a judge.”  In the Matter of Baptista, Order (New Jersey Supreme Court May 19, 2016) (censure for this and related misconduct).
  • “Yesterday at lunch.” Judge’s false statement about when he last had something to drink when trooper stopped him for drunk driving.  In the Matter of Baptista, Order (New Jersey Supreme Court May 19, 2016) (censure for this and related misconduct).
  • “Well, actually, it is.” Judge to the judge presiding over her personal case when she called and he said, “Well, it can’t be, it’s not about this, your case, is it?”  In the Matter of Dixon, Determination (New York State Commission on Judicial Conduct May 26, 2016) (censure).
  • “If I see you again, I’m going to make sure that the county sheriff takes you to jail.” Judge to driver he had had the police pull over after she passed him.  Public Warning of Brady and Order of Additional Education (Texas State Commission on Judicial Conduct March 3, 2016).
  • “I enjoy performing marriage ceremonies” and “make every effort to schedule them” when possible. Part-time magistrate’s web-site for his law practice.  In the Matter of Martinek, Opinion (June 17, 2016) (finding of misconduct, no sanction).
  • “Being on the road — I just got this exchange — you guys sound like a bunch of women, worrying about offending and being misunderstood and falling all over each other thanking everyone and getting misty eyed! Jeezus, boys, is it a menstrual [sic] thing?  The next thing we’ll be splitting the check at Finn McCool[‘]s ‘now you had the BLT and an iced tea, so you owe….’ Snap the hell out of it!!!  Everybody’s great, everybody’s in Bax, get the money up front and all of the rest of us will go.  New Judge [B.] will find [out] a judge has to go out of state to see boobs.  New Dad [S.] will go unless he knocks Momma up again.  [S] can spend an extra hour in the OR and pay for all of us!!  I’m in.  I’ve got a stake of fifty ones and a titty-deficit that needs cured.”  Justice in e-mail to his golfing group.  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016) ($50,000 fine).
  • “Cast your vote in the Senate District 16 Special Election. I will be voting for Angela Turner Lairy! . . .  Let’s not lose this seat!”  Judge on social media.  Commission on Judicial Performance v. Clinkscales (Mississippi Supreme Court June 9, 2016) (removal for this and other misconduct).

 

Top judicial ethics stories of 2016 – so far

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Resignation of Arkansas judge

Late summer 2015:  News stories report that Judge Joseph Boeckmann was having defendants work on his family farm in lieu of paying fees or doing community service, and the Arkansas Commission on Judicial Disability and Discipline confirms that it is investigating the allegations.

November 2015:  The Arkansas Commission files a statement of allegations alleging Judge Boeckmann, in addition to other misconduct, “used his influence over [certain] male litigants, as a judge, to insinuate compliance by the litigants for his personal and sexual desires.”  The Commission alleges that the judge offered certain young Caucasian male defendants “substitutionary sentences,” which meant he would require them to pick up cans alongside city roads or at his home where he would photograph them as they were bending over and that he solicited sexual relations from them in exchange for reduction of or dismissal of their fines and costs.

The Arkansas Supreme Court appoints a special judge to handle Judge Boeckmann’s docket (he is a part-time judge).

December 2015:  The judge files an answer denying the allegations.

 January 2016:  In an amended statement, the Commission adds more examples of the judge appearing “to act as employer, financer, and, on occasion, intimate partner of some defendants appearing before him” and other allegations.  The Commission’s executive director tells reporters that, after the original allegations were filed and reported in the news media, more victims came forward.

May 2016:  The Arkansas Commission announces the resignation and permanent removal of Boeckmann and concludes its proceedings against him.  Prior to his resignation, the Commission had filed a notice of intent to introduce evidence of sexual misconduct by Boeckmann when he was a private attorney and a deputy prosecuting attorney.

Although there have been reports of criminal investigations by both federal and state law enforcement agencies, no criminal charges had been filed as of July 11.


Another Pennsylvania scandal

For the 3rd time in 3 years, a justice of the Pennsylvania Supreme Court resigned or retired following conviction of a crime or during a judicial misconduct investigation.  (In early 2013, Justice Joan Orie Melvin resigned after she was convicted on state charges of using state employees in her judicial election campaigns.  In late 2014, Justice Seamus McCaffery retired while the Judicial Conduct Board was investigating allegations against him, including allegations he had exchanged hundreds of sexually explicit e-mails with members of the Office of Attorney General.)

October 2014:  The Judicial Conduct Board releases a statement confirming that Pennsylvania Supreme Court Justice Michal Eakin had self-reported that he received a number of e-mails in 2010 that may have violated the code of judicial conduct, that it had received other complaints about the same conduct, and that it was conducting an independent investigation.

December 2014:  The Board dismisses the complaints against Justice Eakin.

October 2015:  The Board confirms that it is conducting a new investigation after receiving additional materials from the Attorney General regarding e-mails involving Justice Eakin, noting that recent revelations demonstrate that the Board had not been “provided with all of the information on the Attorney General’s servers” during its 2014 inquiry.  (In September 2015, the Pennsylvania Supreme Court suspended the Attorney General’s law license after she was charged with perjury, obstruction of justice, and other offenses.)

December 2015:  The Board files a complaint alleging that Justice Eakin committed misconduct by sending e-mails to and receiving e-mails from other judges and attorneys, particularly defense attorneys and employees of the Office of Attorney General, that “someone of reasonable sensitivities would find offensive” and that were so extreme as to bring the judicial office into disrepute.

The Court of Judicial Discipline suspends Justice Eakin with pay pending proceedings on the complaint.

In his answer, the justice admits most of the factual allegations but denies that he committed misconduct, noting “these were Justice Eakin’s private, personal email messages (both sent and received, whether opened or unopened) and were never intended by him to be made public.”

February 2016:  The Board and Justice Eakin file a joint motion to submit a proposed stipulation to the Court of Judicial Discipline, which is denied.

March 2016:  The justice files a motion to present a mediated settlement, which is denied.

Justice Eakin resigns.

Based on stipulations of fact in lieu of trial, the Court of Judicial Discipline fines the now-former justice $50,000 for exchanging e-mails with friends and professional acquaintances that were insensitive and contained inappropriate references to gender, race, sexual orientation, and ethnicity, using his Commonwealth-issued computer equipment and a personal web-based e-mail address.  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016).


The appearance and reality of impartial justice

The U.S. Supreme Court again affirmed the importance of “both the appearance and reality of impartial justice” in state courts 6 years after it had held that an objective test for impartiality applied under the federal due process clause in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).  In the most recent case, the Court vacated a 6-0 decision of the Pennsylvania Supreme Court denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death; the Court held that (1) the participation of a justice who had as the district attorney approved seeking the death penalty in the prisoner’s case violated the Due Process Clause of the Fourteenth Amendment and (2) the justice’s failure to recuse was a structural error, not harmless error, that required vacating the decision even though his vote was not the deciding vote.  Williams v. Pennsylvania, 195 L. Ed. 2d 132 (2016).  See previous post here.


Judicial campaigns in federal courts

  • A former judicial candidate has filed a petition for a writ of certiorari presenting the issues: “(1) Whether the endorsement clause is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution or unconstitutional as applied to endorsements of candidates that will not appear in the court for which election is sought; and (2) Whether the campaigning prohibition is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution or unconstitutional as applied to campaigning in support of ballot measures.”  The petition is from the en banc decision of the S. Court of Appeals for the 9th Circuit upholding clauses in the Arizona code of judicial conduct prohibiting judicial candidates from personally soliciting or accepting campaign contributions other than through a campaign committee the personal solicitation clause, prohibiting judicial candidates from making speeches on behalf of a political organization or another candidate for public office, publicly endorsing or opposing another candidate, soliciting funds for or paying an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts permitted by law, and actively taking part in any political campaign other than his or her own.  Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016).
  • On cross motions for summary judgement, a federal court permanently enjoined the Kentucky Judicial Conduct Commission from enforcing provisions in the code of judicial conduct (1) prohibiting a judicial candidate from making “pledges, promises or commitments” with respect to “issues;” (2) prohibiting a judicial candidate from making “misleading” statements; (3) prohibiting a judicial candidate from making speeches “for or against a political organization or candidate or publicly endors[ing] or oppos[ing] a candidate for public office;” (4) prohibiting a judicial candidate from paying an assessment or making a contribution to a political organization or candidate;” (5) prohibiting a judicial candidate from “campaign[ing] as a member of a political organization;” and (6) prohibiting a judge from engaging in “any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.” However, the court held that, at least on their face, prohibitions on a judicial candidate making false statements, acting as a leader or holding an office in a political organization, or endorsing candidates were not unconstitutional.  Winter v. Wolnitzek, Opinion (U.S. District Court for the Eastern District of Kentucky May 12, 2016).


Same-sex marriage

There have been no new advisory opinions on the issue of judges’ obligation to preform same-sex marriages since 5 were issued in 2015 shortly after the U.S. Supreme Court held that the U.S. Constitution does not permit states to bar same-sex couples from marriage; those 5 opinions stated that a judge cannot refuse to perform same-sex marriages if the judge performs opposite-sex marriages.  See this previous post.  See also Nebraska Advisory Opinion 2016-2 (a judge may not disqualify himself or herself from cases involving the adoption of children by a same-sex married couple based on strongly held religious beliefs about the couple’s sexual orientation); New York Advisory Opinion 2016-56 (unless a judge is required by law or rule to perform marriages, a judge may adopt a policy to decline to perform all weddings).

There are several pending judicial discipline cases involving same-sex marriages that may be resolved in 2016.

  • A judge has filed a petition objecting to the recommendation of the Wyoming Commission on Judicial Conduct and Ethics that she be removed for stating that she is unwilling to perform same-sex marriages.
  • That a judge instructed his staff to lie to same-sex couples and say he was not available to perform their wedding ceremonies is only one of the grounds on which the Oregon Commission on Judicial Fitness and Disability has recommended that the judge be removed. The other grounds are:  (1) at 2 community college soccer games for his son’s team, the judge tried to intimidate a referee by, for example, brandishing his judicial business card while threatening to complain to the referee’s employer; (2) the judge facilitated the handling of a firearm by BAS, a former Navy SEAL and convicted felon on active supervised probation in the veterans court over which the judge presided; (3) “enamored with BAS’s notoriety and his accomplishments in the military,” the judge had unsolicited, often unwanted, personal, and completely inappropriate out-of-court contacts with BAS; (4) either directly or under the guise of a non-profit organization, the judge obtained funds for a “Hall of Heroes” (military art hung in his courtroom and in the surrounding public areas, including a donated portrait of Hitler) in part by soliciting financial support from attorneys who appeared before him and collecting the money, often in the courthouse and once during a status conference in his chambers; (5) the judge made public statements in pre-hearing publicity to create the impression that the Commission proceeding was solely regarding his refusal to conduct same-sex marriages to deflect attention away from other misconduct; and (6) the judge engaged in a pattern of untruthfulness during the Commission proceedings.
  • The Alabama Judicial Inquiry Commission has filed a complaint against Chief Justice Roy Moore based on his administrative order directing or giving the appearance of directing probate judges not to obey an injunction entered by a federal court that prohibited probate judges from following the state court’s order upholding the state’s same-sex marriage ban.