Saturday, October 29, 2011
A judge may not speak to a conference on a case that he presided over and which is now on appeal, according to a recent opinion of the Florida Judicial Ethics Advisory Committee:
...nothing in the Code of Judicial Conduct prohibits the inquiring judge from commenting on a high profile case once the matter has reached a final disposition. Indeed, as one committee member noted in Fla. JEAC Op. 96-18, an inquiring judge could appear in a TV documentary after the case was closed. Hence, the only reason that this inquiring judge or any other judge is prohibited from giving a speech given the factual scenario before us is the stated prohibition in Canon 3B(9) that no judge can comment on any proceeding – in this case a trial over which the judge has presided – until final disposition of the appellate process. Once that occurs, no prohibition exists on a judge providing his or her views or thoughts on handling a high profile case. Accordingly, the only analysis that applies to the issue here is the fact that the matter on which the inquiring judge has been asked to speak has not fully concluded as an appeal remains pending. The focus on “ex parte” communications is extraneous, unwarranted, and legally incorrect.
There is a minority view:
The minority acknowledges that if the inquiring judge has handled other high profile cases, the inquiring judge could speak generically about the topic of handling an interesting or high profile case – such as dealing with the media, the courtroom set-up, cameras in the courtroom – without discussing the particular case at issue here. The minority is of the opinion, however, that the invitation here was to speak about the particular case that is currently on appeal, and the judge is prohibited by Canon 3(b)(9) from commenting on that case.
Accordingly, while the minority agrees with the conclusion reached by the majority, the minority disagrees to the extent the majority’s opinion concludes that the proposed speech would constitute an “ex parte” communication pursuant to Canon 3B(7).