Wednesday, July 11, 2018

Facebook Posts Get Justice Admonished

A non-attorney town court justice has been admonished by the New York Commission on Judicial Conduct

In January 2015 respondent, without notice or permission, entered the home of a woman who had defaulted on a mortgage held by an estate of which respondent's wife was co-executrix. Respondent took photographs to document what he considered to be the poor physical condition of the premises, and he posted the photographs on his wife's Facebook account with the comment "Mom and Alton are turning over in their graves," referring to the deceased relatives who left the estate;

On April 6, 2017, respondent publicly posted four of the photographs of the premises on his own Facebook account, as well as six photographs of the residence's interior taken prior to its sale. Along with the "before" and "after" photographs, respondent commented on contrasting the condition of the home before and after the sale, and he stated that the buyer had been in arrears in her mortgage payments. Respondent made the posting in retaliation for the woman's public accusations that respondent and his co-judge had committed judicial misconduct; and

Respondent did not remove the four "after" photographs from his Facebook account until November 13, 2017, following an inquiry by the Commission. As of February 2, 2018, respondent had not removed from his Face book account either the "before" photographs or the comments about the condition of the house or the buyer's mortgage arrearage.

Background

Respondent is married to Joanne Fisher. In 2008, following the death of Ms. Fisher's stepfather, Alton Adams, Ms. Fisher became a co-executrix of his estate ("Estate"). The primary asset of the Estate was a house located at ("Property").

Respondent was not an executor or beneficiary of the Estate and had no legal right to act on its behalf.

In March 2012 the Estate sold the Property to S. The note and mortgage identified the Estate as the mortgagee and provided that S. was to make monthly payments to the Estate until March 16, 2015, at which time she was required to make a "balloon" payment of the outstanding balance. Under the note and mortgage, the Estate's legal remedies, upon a default by the buyer, were to commence summary eviction and/or foreclosure proceedings. The note and mortgage included no provision granting the Estate a right to enter and inspect the Property.

On January 10, 2015, S. was in arrears in her mortgage payments and was not living on the Property. After consulting the Estate's attorney but without providing notice to S. or obtaining her permission to enter, respondent entered the Property, which was in a state of disorder, and took photographs of the premises. The Estate had not commenced legal proceedings against S.

More photos were later posted on Facebook, apparently in retaliation for judicial misconduct complaints filed by S.

The commission

Compounding respondent's misconduct, he inexplicably failed to remove the offensive Facebook post promptly after the Commission questioned him about the matter, despite promising under oath to do so. Although he assured the Commission during his investigative testimony in July 2017 that he would remove the post "this afternoon," he did not remove the four photos taken during his unauthorized inspection of the property until four months later - shortly after the Commission had contacted him again to ask why the post had not been removed - and did not remove the remainder of the post until February 2018. In the meantime, his comments denigrating the property's owner remained on Facebook, and we can assume that more public members would have the opportunity to read them and comment. That was a further injustice to the owner of the property. Respondent concedes that he has "no excuse" for his lengthy delay in removing the post promptly after pledging to do so, and his failure to respond promptly to the Commission's concerns shows a lack of sensitivity to his ethical responsibilities as a judge.

In accepting the jointly recommended sanction publicly admonishing respondent for his behavior, we note that respondent has acknowledged the impropriety of his conduct and has pledged to be more circumspect in the use of social media in the future.

The agreed statement of facts is linked here. (Mike Frisch)

July 11, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, July 8, 2018

Judges Disqualified After Improper Sexual Contact Charges

The Louisiana Supreme Court has disqualified from all matters a judge charged with sexual crimes in ordering that he

be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter

The Advocate reported on the charges in late June

A grand jury on Monday indicted a St. John the Baptist Parish judge accused of sexually assaulting a 15-year-old girl and groping two other teenagers.  

Judge Jeff Perilloux of 40th Judicial District Court was charged with three felony counts of indecent behavior with a juvenile and one count of misdemeanor sexual battery, said Ruth Wisher, a spokeswoman for state Attorney General Jeff Landry. 

Perilloux also is accused of sliding his fingers into the 15-year-old's bathing suit bottom during a family trip to Destin, Florida, last summer.

Florida authorities have not filed charges related to that incident. But the same girl, a friend of the judge's daughter, told Louisiana State Police that Perilloux touched her breasts on two other occasions — in St. John Parish — while giving her a massage. 

On one of those occasions, she said, the judge began "stroking" her breasts, according to a law enforcement official familiar with the lengthy investigation. Perilloux was the only adult present at the time of those incidents.  

Perilloux, 50, has denied the allegations but took a leave of absence in May after The New Orleans Advocate reported he was under State Police investigation. He handed his docket to his predecessor on the 40th Judicial District Court bench, retired Judge Mary Hotard Becnel.  

"I will spend every nickel that I have to defend myself and my family on these allegations," Perilloux told L'Observateur newspaper last month. "I am not a wealthy man, but I will spend every penny that I have to defend (myself) from these allegations."

The judge's attorney, David Courcelle, told WWL-TV on Monday that Perilloux "unequivocally maintains he has never done anything improper with any of the three alleged victims."

"He will vigorously defend himself against these allegations," Courcelle said. 

St. John judge takes leave of absence amid sexual assault claims; AG sets grand jury date

The investigation began last year after the girl told law enforcement officials that Perilloux had improper sexual contact with her at least three times, including the July 2017 incident in Destin.

In that incident, the girl said, she backed away from the judge after he slid his fingers inside her bathing suit bottom while the two were alone in his bedroom. She told State Police she had gone to the judge's room to ask him about extending the girls' curfew during a beach vacation.

She said the judge begged her "about 10 times" to let him proceed and told her not to be scared, according to the law enforcement official, who spoke on the condition of anonymity because he was not authorized to discuss the investigation.

Two other girls who were on the Destin trip told detectives they were there when the alleged victim emerged crying from the judge's room.

State Police detectives reviewed Perilloux's text messages and interviewed several friends of the judge's daughter, including at least two who said Perilloux had done things to make them feel uncomfortable, such as patting them on the buttocks. One of them described Perilloux as "creepy."

The State Police reviewed at least 33 screenshots of text messages between the judge and the 15-year-old dating back to September 2015. The judge maintained frequent contact with her and told her at times that he missed her and loved her. He also would compliment her on her appearance in photographs she posted to social media, the law enforcement official said. 

The State Police investigation revealed that Perilloux would give spending money to his daughter's friends and kiss them on the cheek. One of the girls told authorities she thought it was "weird when (Perilloux) acts like that," the law enforcement official said. 

The indictment accuses Perilloux of committing "lewd or lascivious" acts upon two girls in May and June 2017 and "intentionally" touching the breasts of another girl in December 2017. 

Authorities in Okaloosa County, Florida, conducted a separate criminal investigation last year into the alleged assault in Destin. The status of that investigation was not clear Monday. 

St. John Parish judge accused of sexually assaulting daughter's friend; State Police investigating

 

Landry's office took on the case following the recusal of St. John the Baptist Parish District Attorney Bridget Dinvaut.

Perilloux served for 12 years as an assistant district attorney in St. John Parish and was also the legal counsel for the parish government before being elected to the bench in December 2016.  

Perilloux's colleagues at 40th Judicial District Court also have recused themselves from the case. 

Criminal indictments frequently prompt the Louisiana Supreme Court to disqualify an accused judge on an interim basis, though that is not automatic. 

The indictment is not the first time Perilloux has faced criminal charges. He made headlines following a 2010 DWI arrest in which he threatened a State Police trooper and sought to use his reputation as a prosecutor to avoid going to jail.

"Do you know who I am?" Perilloux asked the trooper, according to a dash-cam video of the arrest. "I am the parish attorney. I'm not some lowlife."

That DWI charge has since been expunged, according to news accounts, and prosecutors declined to pursue a charge of public intimidation related to Perilloux's statements.

Perilloux later apologized for his behavior and said he sobered up following his arrest. 

The court took the same action in an unrelated matter recounted by the Times-Picayune

Three former Orleans Criminal District Court judges will step out of retirement to temporarily replace Judge Byron C. Williams as investigators look into groping accusations against Williams, according to orders by the Louisiana Supreme Court.

The trio was formally tapped Monday (July 2) to rotate the spot on Williams' Section G bench.

Judge Dennis J. Waldron will oversee Section G from July 9 through Aug. 5. Retired Judge Calvin Johnson is set to take over Aug. 6 through Aug. 31. Retired Judge Jerome M. Winsberg presides Sept. 1 through Sept. 30, according to the orders signed by Louisiana Supreme Court Justice Greg Guidry.

The three judges have come out of retirement in the past to assist the local court.

In 2015, Waldron, Johnson and Winsberg rotated through temporary assignments in criminal court after Judge Frank Marullo's departure from Section D. Marullo retired after he was ordered off the bench by the state Supreme Court because he had passed the age limit for judges.

Waldron, Johnson and Winsberg filled in for Marullo until the state Supreme Court appointed a more permanent replacement ahead of the 2016 election and subsequent swearing-in of current Section D Judge Paul Bonin.

Known for his punctual proceedings, Waldron has decades of experience on the bench. He was sworn in as Orleans Criminal District Court's Section F judge in 1982 and served for 26 years before his retirement in late 2008. Prior to serving as judge, he spent eight years as a prosecutor.

Since retiring, Waldron has taken on high-profile ad-hoc assignments, including state proceedings for Central City drug kingpin Telly Hankton.

Johnson also retired in 2008, leaving the Section E bench after 17 years. He was first elected to the court in 1990, becoming the first African-American elected to a Louisiana state court without having been first appointed, according to a 2008 The Times-Picayune article about his retirement.

Current Chief Judge Keva Landrum-Johnson took over Section E in 2008.

Judge Calvin Johnson is known for launching the first mental health court in Louisiana in 2002. He also served as chief judge of the criminal court during Hurricane Katrina and played a key role in getting the courthouse reopened within a year of the storm's hit.

He has continued to play a part in public service since his retirement--most recently, Johnson became part of a team of investigators tasked with probing Entergy's practices after it was revealed that paid actors and other supporters purposefully kept opponents out of hearings for a proposed power plant. 

Winsberg retired in 1996 after 24 years on the criminal court bench and devoted his efforts to practicing law, according to a 1996 The Times-Picayune article.

Since his retirement, he has returned to the bench to oversee proceedings for a number of prominent cases, including trials for the Angola 5 and for a former Plaquemines Parish judge convicted of stealing public money.

The three judges now take over for Williams, who took a leave of absence amid an investigation into allegations that he inappropriately touched a courthouse employee and made inappropriate comments from the bench.

Earlier this week, Williams' attorney, Ernest Jones, told NOLA.com | The Times-Picayune his client's leave of absence began Monday. Jones attributed the judge's decision to step aside to the "highly publicized" allegations, noting Williams denies the allegations.

Williams' leave of absence will continue until the Judiciary Commission completes its investigation, according to a statement from Jones.

(Mike Frisch)

July 8, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, July 2, 2018

Not Of This World

A recent opinion of the Florida Judicial Ethics Advisory Committee

ISSUE

May a senior judge serve on the judicial council of a church of which he/she has been an active member for several decades?

ANSWER: No.

FACTS

The inquiring judge is a senior judge who seeks guidance regarding whether the judge may serve on the judicial council of a church of which the judge has been an active member for many years. According to the bylaws of the church, the position will not be salaried. The members receive a $60.00 per diem as well as mileage for travel expenses. The members of the judicial council are elected by the church body/general conference. The judicial council is composed of lay persons of the church, at least three of whom are required to be either a lawyer or judge, and there must be four members who are elders of the church. The inquiring judge states that the judicial council only addresses matters within the church body and is amenable to the general conference. The Doctrine and Discipline of the church provides that the judicial council may not become involved in civil action/litigation brought by any member or department of the church.

Section XVI(A) of the church’s Doctrine and Discipline provides that the jurisdiction of the judicial council shall relate to and be restricted to “all final appeals from any adverse decision by any bishop, board, commission, group, pastor or any other regularly constituted party or body empowered to make a decision that affects the right of any member or Church body of [said] Church.”

Reasoning

Canon 5C(3) specifically allows judges to act as non-legal advisors for religious organizations. Based upon the description of the duties of the judicial council provided in the Doctrine and Discipline of the church, it appears that the judge would be acting as a legal advisor for the organization by participating in “all final appeals from any adverse decision by any bishop, board, commission, group, pastor or other regularly constituted party or body empowered to make a decision that affects the right of any member or Church body of [said] Church.”

This committee has in the past issued opinions that a judge could not give legal advice or perform legal services for a non-profit organization. See Fla. JEAC Op. 04-16 (judge may serve as trustee of a non-profit philanthropic trust, where the judge will not be asked to provide legal advice or services for the trust); and Fla. JEAC Op. 03-07 (judge may not serve on a hospital’s ethics committee, when the county in which the hospital is located, and the county for which the judge serves, are in the same judicial circuit).

Even if it is determined that the judge’s participation in the judicial council would be as a non-legal advisor, the language in the church’s Doctrine and Discipline suggests that the church or its members could become engaged in proceedings that would ordinarily come before the judge, and the same is prohibited by Canon 5C(3)(a)(i).

It is impossible to know all of the potential claims and issues that could come before the judicial council of the church. It appears, however, from the church’s Doctrine and Discipline that such issues could arise in a court of law.

Section XVI(I)(8) of the Doctrine and Discipline of the church provides as follows:

Members of the [] church are hereby required to seek a final determination of any dispute arising between said members and the Church and/or any department thereof by exhausting all legal remedies provided in The Doctrine and Discipline of the [church] before civil proceedings are engaged in by the said member in his or her own behalf or anyone similarly situated (emphasis added).

Due to the nature of the duties and responsibilities of someone serving on the judicial council of the church, it cannot be said that such activities are those of a non-legal advisor. Even if it is determined that the duties of the judicial council would be considered non-legal, it appears that it is possible that such issues could come before the court in the inquiring judge’s jurisdiction. As such, the committee is of the opinion that such service would be in violation of Canon 5 of the Code of Judicial Conduct.

(Mike Frisch)

July 2, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, June 16, 2018

A Very Social Judge

The  Michigan Judicial Tenure Commision has filed charges of misconduct against a District Court judge.

She allegedly failed to disclose a relationship with a police officer who was a key witness in a murder case in which she presided

After respondent was assigned to [the] Kowalski [case] she had substantial contact with Detective Sergeant Furlong, including but not limited to the following:

a. Attending bars/restaurants for dinner and/or drinks
b. Dinner and parties at her house
c. Shopping trips
d. Trips to her cottage
e. Sporting events (including but not limited to University of Michigan football games, Detroit Tigers baseball games, and Detroit Red Wings hockey games)
f. Concerts
g. Golfing
h. Detective Sergeant Furlong made multiple closed door visits to respondent’s chambers.

On some of the occasions described above, respondent paid for or provided food, drinks, event tickets, or other expenses on behalf of Detective Sergeant Furlong.

After defense counsel received a letter from a local attorney raising the relationship

During the January 4 conference in chambers, respondent stated to counsel that:

a. She had occasionally gone drinking with Detective Sergeant Furlong in the same way that she did with assistant prosecuting attorneys; and
b. Detective Sergeant Furlong had been to her house.
c. In response to another allegation in the letter, respondent denied that she ever had a sexual relationship with Detective Sergeant Furlong.

Respondent failed to disclose the full extent and nature of her relationship with Detective Sergeant Furlong, by omitting significant social activities respondent engaged in with him before or while Kowalski was pending, including but not limited to:

a. Regular visits to bars/restaurants
b. Shopping trips
c. Trips to her cottage
d. Attending sporting events together (including but not limited to University of Michigan football games, Detroit Tigers baseball games, and Detroit Red Wings hockey games)
e. Attending concerts together
f. Golfing together
g. On some of the social outings, respondent paid for food, drinks, event tickets, or other expenses on behalf of Detective Sergeant Furlong
h. While Kowalski was pending, respondent often spoke on the telephone with Detective Sergeant Furlong, including but not limited to 239 telephone calls between November 3, 2011, and December 28, 2012
i. While Kowalski was pending, respondent routinely exchanged texts with Detective Sergeant Furlong
j. Detective Sergeant Furlong made visits to respondent’s chambers, typically with the door closed.

Respondent’s remarks in chambers on January 4 minimized the nature of her relationship with Detective Sergeant Furlong.

Respondent’s conduct during the in-chambers conference served to conceal the true nature of her relationship with Detective Sergeant Furlong.

Charges involving another friend who is an attorney

During their friendship respondent regularly socialized with Ms. Pollesch, including but not limited to:

a. Respondent and Ms. Pollesch belonged to the same book club, which met monthly, with Ms. Pollesch joining the club at respondent’s invitation
b. Respondent and Ms. Pollesch went to each other’s cottages with the book club
c. Respondent and Ms. Pollesch went to each other’s cottages on a number of occasions in addition to the trips with the book club
d. Respondent went on ski vacations with Ms. Pollesch, both to northern Michigan and to the western United States
e. Respondent traveled to Washington, D.C., with Ms. Pollesch
f. Respondent played in an adult concert band with Ms. Pollesch for several years.

g. Respondent exercised with Ms. Pollesch by taking regular walks with her, meeting both at each other’s houses and at the Brighton courthouse
h. Ms. Pollesch occasionally went to respondent’s house for dinner parties
i. Ms. Pollesch went to respondent’s house a number of times to go swimming while respondent was a judge
j. Respondent and Ms. Pollesch attended bonfires at each other’s houses
k. Respondent attended movies with Ms. Pollesch several times per year
l. Respondent regularly met Ms. Pollesch for lunch
m. Ms. Pollesch attended respondent’s cottage with her husband, while respondent was present
n. Respondent hosted Ms. Pollesch’s wedding at her house in 2002
o. Ms. Pollesch worked on respondent’s campaign for circuit court judge in 2000 and for district court judge in 2006 and 2008
p. Ms. Pollesch attended an election party at respondent’s home in 2008.
q. Ms. Pollesch has, over respondent’s judgeship, been the judge’s closest friend who is a practicing attorney.

The judge allegedly presiding over a number of cases where the attorney and her firm appeared wthout full disclosure of the relationship.

There was an alleged relationship with a probation officer

The socialization included, but was not limited to:

a. Meeting for drinks at local bars or respondent’s home
b. Meeting at local restaurants for dinner
c. Dinner parties at respondent’s or Ms. Zysk’s home
d. Celebrating birthdays
e. Exchanging gifts

 f. Attending sporting events, including Detroit Tigers and Detroit Red Wings games
g. Exercising at a local “boxing facility” on several occasions
h. Shopping for furniture
i. Ms. Zysk and her daughter spending the night at respondent’s house on several occasions from late 2015 through 2016
j. Travel together on a weekend trip to Chicago in February 2016.

She allegedly presided over her friend's divorce without disclosure.

There is more but the reader gets the gist.

Reddit Bad Lawyer linked to this story from Michigan Radio.

Brennan has also been accused of failing to disclose a friendship with an attorney who argued cases in front of her, using her judicial staff for personal shopping and errands, and in general bullying people who worked with her.

Detroit News reported on the judicial misconduct proceedings.

WXYZ-TV had a video report  that also gives one a sense of her (un)judicial demeanor. (Mike Frisch)

June 16, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, June 15, 2018

No Reward

The Wisconsin Supreme Court suspended a judicial officer for 15 days for misconduct in an harassment injunction matter

We agree with the Judicial Conduct Panel that a suspension is in order, and we conclude that a length of 15 days is appropriate. The misconduct in this case is undeniably serious. As we stated in Carver, a judge's objectivity and impartiality are critical to the proper functioning of the judicial system. Commissioner Calvert's behavior was far from objective and impartial. He independently investigated the facts of a case pending before him——an effort that included engaging in an ex parte communication with the police chief. He then lied to the parties in a particularly manipulative manner, falsely claiming that he had communicated with individuals in the judicial and law enforcement systems in such a way that the parties were doomed to failure and future legal troubles should they ever seek additional recourse. We cannot abide such assurances by a judge to rig the judicial and criminal justice system against its participants.

We are also troubled, as was the Judicial Conduct Panel, by Commissioner Calvert's argument to the panel that "it is difficult to understand how either party to this matter may have questioned fair treatment in this case when a rehearing of the matter was an available alternative and was never requested." This argument strongly suggests that Commissioner Calvert lacks insight into his own misconduct; it is no surprise the parties did not seek a de novo hearing of his decision given his assurance that he would see to it that any such effort would fail. In other words, Commissioner Calvert's argument seeks a reward for his asserted willingness to tilt the playing field against the parties. No reward will be forthcoming here.

15 days may not be a reward, but it might be a gift. (Mike Frisch)

June 15, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, June 7, 2018

A Way to Get Positive Evaluations

The New Hampshire Supreme Court has imposed an interim suspension of a convicted former judge and attorney.

The Union Leader reported on the charges

Judge Paul Moore is facing accusations of faking potentially dozens of positive, anonymous judicial evaluations of himself, leading the Attorney General to launch a criminal investigation and the Supreme Court to place him on leave without pay.

Moore has been absent from his post at Nashua’s district court since mid-October. At the time, court officials declined to explain his absence. But newly released records from the Judicial Conduct Committee show concerns were first raised by court administrators earlier that summer. 

After spending months investigating, the conduct committee filed formal charges against Moore on Friday, which now jumpstarts proceedings against him. On Monday, the Attorney General’s office said it was opening a criminal investigation into whether Moore tampered with records, obstructed government administration and other charges. 

According to the complaint, Moore purposely attempted to interfere with his 2017 judicial performance evaluation in order to artificially improve his overall score on the evaluations. The state reviews between 18 and 20 judges every year on a rolling basis. 

Last July, a link to an online survey was emailed to Moore that allows judges to complete a self evaluation. A list of 90 randomly selected individuals and agencies were included, as they would each be sent a letter inviting them to complete an evaluation of Moore. 

Three days later, Moore emailed to request the removal of two former employees from the list of potential reviewers. He asked to add 148 names, including landlords, police and parole officers who appeared before him. 

But prior to a public announcement of Moore’s survey, completed evaluations began to come in. In less than 24 hours, he received 16 evaluations with perfect scores in every category, according to Waystack Frizzell, an attorney hired to investigate the case by the Judicial Conduct Committee.

Last week, Moore filed a response to the formal complaint where he admitted to submitting anonymous judicial evaluations of himself online as though some other person was submitting the evaluations. 

He also admitted to making the submissions on many occasions over several weeks using his personal computers, iPads, mobile phones and once or twice from his job at the Nashua District Court. 

The state’s highest court said it has decided to place Moore on administrative leave without pay to preserve the integrity of the Judicial Branch and the public’s trust. 

A judicial committee will meet March 26 to address the matter. 

The complaint alleges that there is probable cause to believe that Moore failed to comply with the Code of Judicial Conduct, failed to act in a manner that promotes public confidence of the judiciary, failed to avoid both impropriety and the appearance of impropriety and allowed his behavior to be influenced by fear of criticism. 

Moore, of Bedford, began his judicial duties in 2001. He also founded MooreMart, a volunteer organization that ships care packages to troops overseas. 

He was previously named the New Hampshire Union Leader and Sunday News New Hampshire Citizen of the Year for 2011, and previously received the William A. Grimes award for judicial professionalism.

And on the recent plea

Placed on leave over concerns he submitted fake evaluations of his own performance, Circuit Court Judge Paul Moore told another lie — this one that chronic pain, anxiety, depression and traumatic stress prevented him from being a judge and he should start receiving a disability pension, a prosecutor disclosed Wednesday.

Moore appeared in Merrimack County Superior Court on Wednesday and admitted to the fraud. It was yet another blow to a popular Nashua judge who was a former U.S. Army Ranger and founded MooreMart, a nonprofit organization that has shipped more than 100,000 care packages to troops deployed overseas.

Moore had already resigned his judgeship, which he gave up after authorities became suspicious of perfect scores on job evaluations supposedly submitted by lawyers and the public last summer. In the weeks ahead, Moore is likely to be disbarred.

On Wednesday, Moore was fined $4,000, must repay $3,900 to the Judicial Retirement System and received a suspended jail sentence.

“He is no longer a judge. He no longer will receive retirement benefits. He walks out of this courtroom not a judge, but a felon,” said Associate Attorney General Jane Young.

June 7, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, June 6, 2018

Brother Conflicts Explored

The South Carolina Advisory Committee on Standards of Judicial Conduct opines on a conflicts issue

FACTS

A circuit court judge, whose brother is an assistant public defender, inquires into the propriety of serving over criminal cases in which the public defender’s office appears. The judge understands that the judge cannot preside over any case in which the judge’s brother appears. However, the judge inquires into the propriety of presiding over criminal matters in which other members of the public defender’s office appear as counsel. The judge also inquires as to the possible scenario in which the judge is the only one available and one of the brother’s clients is in jail, but wants to plead guilty to a time served offer. The judge inquires as to whether, if the Solicitor and Public Defender waive any conflict, the judge could preside over such a plea.

CONCLUSION

A circuit court judge may preside in criminal matters where the judge’s brother is employed by the public defender’s office, provided that the judge’s brother is not involved in any way in the case being heard or in a companion case that could be affected by the judge’s rulings. A circuit court judge may preside over a guilty plea for time served for a client of judge’s brother only if both sides waive disqualification or if essential under the rule of necessity.

(Mike Frisch)

June 6, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, May 31, 2018

"I'm Her Father And I Am An Attorney"

Daily Times (Tom Corrigan) reports on recent ethics charges against a former Ohio judge

The Ohio Board of Professional Conduct still is awaiting an answer from former Scioto County Common Pleas Judge William Marshall regarding a formal complaint filed by the board’s Disciplinary Counsel against Marshall, according to its website.

That website appears to have last been updated April 30. A call to the board office was not returned.

The Disciplinary Counsel filed a case against Marshall April 27. After approximately 18 years of service to the bench in Portsmouth, Marshall abruptly retired from the bench effective March 16.

The Ohio Board of Professional Conduct is a 28-member quasi-judicial body appointed by the Supreme Court of Ohio consisting of 17 lawyers, seven active or retired judges and four non-lawyers. This is not the first time Marshall has faced official censure from the state. On April 1, 2015, the Ohio Supreme Court reprimanded Marshall following his conviction for operating a motor vehicle while intoxicated, an incident which resulted in a one-car accident.

The latest complaint centers on Marshall’s alleged misconduct following his daughter receiving a ticket from the Ohio State Highway Patrol. Essentially, the complaint, which is available to the public on the board’s website, accuses Marshall of improperly inserting himself into his daughter’s case.

According to the certified complaint, on or about Sept. 1, 2016, Marshall’s 17-year-old daughter was stopped by the state patrol for allegedly speeding and driving with expired tags. The girl called her father on her cell phone. Again, according to the complaint, Marshall ended up speaking with the patrolman on the scene and attempted unsuccessfully to persuade him not to ticket his daughter. The girl was cited for going 64 mph in a 50 mph zone on U.S. 52 in Scioto County.

On an unspecified date, Scioto County prosecutor Jay Willis was in Marshall’s court room on an unrelated matter. The complaint against Marshall states the judge informed Willis he was upset with the trooper who ticketed his daughter.

“I don’t like the trooper,” Marshall told Willis, according to the complaint. “He didn’t listen to me. There used to be a code in this county – I’m a judge and he shouldn’t have written my daughter.”

The complaint alleges Marshall, on different occasions, made further comments about his daughter’s case and the patrol officer’s behavior. Once more according to the complaint, Willis asked to be removed from the case as he believed Marshall was pressuring him inappropriately. After several continuances, the matter was set for a pre-trial in a county juvenile courtroom on April 4, 2017. As a general policy, the juvenile court does not allow anyone other than the lawyers involved in the courtroom for pre-trial conferences. A bailiff reportedly tried to block Marshall from entering, but he physically shoved his way in to the room.

“I’m her father and I am an attorney, and I’m coming in,” Marshall reportedly announced.

During the pre-trial, which was not on the record, Marshall allegedly told the court the trooper involved acted unprofessionally and showed him no professional courtesy. The matter was set for trial Sept. 18, 2017.

According to the filed complaint, prior to the trial, Marshall attempted to insert himself into the situation in a number of ways, including attempting to contact the trooper directly. Ultimately, a court declared Marshall’s daughter a juvenile traffic offender and imposed court costs.

Marshall is required to file an answer to the certified complaint or face the possibility of having his license to practice law revoked by the state Supreme Court. If an answer is received, the case will be assigned to a three-member panel of the disciplinary board. Usually, a public hearing is set for six months after a case is assigned to a hearing panel.

If the board decides Marshall engaged in professional misconduct, it will file a report with the state Supreme Court. The court is responsible for imposing any sanctions or discipline.

Hat tip to the web page of the Ohio Supreme Court. This reporting also showcases the information now available at the web page of the Board on Professional Conduct. (Mike Frisch)

May 31, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Friday, May 25, 2018

Sex And Pillow Talk Get Judge In Hot Water

A censure and suspension without pay of a judge has been approved by the Massachusetts Supreme Judicial Court. 

The stipulated facts are as follows. While Cagle was a member of the drug court team over which the Judge presided, the Judge and Cagle engaged in an undisclosed sexual relationship. Their sexual encounters began in November, 2016, and continued until July, 2017. From November, 2016, until March, 2017, while Cagle was an active member of the drug court team, Cagle and the Judge had sexual encounters both in Cagle's home and on several occasions in the Judge's lobby. Before or after some of their sexual encounters, they would have general discussions regarding the operation of the drug court. They also communicated about a particular defendant, although the Judge appears not to have taken any action in response to Cagle's request regarding that defendant. During some of the time period covered by their affair, the Judge attempted to mediate problems between Cagle and other members of the drug court team. The final sexual encounter between the Judge and Cagle was in July, 2017, by which time Cagle was no longer on the drug court team. The Judge used his official electronic mail (e-mail) account to communicate with Cagle and facilitate one of the sexual encounters.

Sanction

The Judge admitted that Cagle participated in discussions regarding admission into drug court, referral for treatment, and termination from drug court during his undisclosed extramarital relationship with her. He also admitted that he and Cagle engaged in general discussions regarding the drug court before or after their sexual encounters. We have no doubt that the Judge's undisclosed sexual relationship with a member of his drug court team raises, at the least, the appearance of inappropriate influence and partiality his decisions regarding drug court participants and thus puts the integrity of the drug court during his leadership into question. Further damaging respect for his office, the Judge used his lobby in the court house for at least several of their sexual encounters, reflecting complete disrespect for the dignity and decorum of the court. He also used his court email account to communicate with Cagle, including communicating on a strategy to ensure that their text messages would not be seen by his family. It is beyond dispute that these egregious, deliberate, and repeated acts of misconduct severely diminished respect in the eyes of the public not only for this judge but also for. the judiciary.

As noted above, the Judge's performance evaluations suggest that he has been a conscientious judge who consistently received very positive ratings from attorneys, court employees, and jurors. The Judge's misconduct, however, is serious, and his prior positive evaluations cannot repair the damage to the judicial system caused by his grave,wilful, and repeated wrongdoing. The Judge's unwillingness to abide by the standards imposed on his office brought the office of the Judge, and by extension, the judiciary, into disrepute...

we conclude that Judge Estes shall be and hereby is publicly censured, and that effective June 15, 2018, he shall be suspended without pay indefinitely or until further order of this court, and it is so ORDERED.

From WBUR News

Tammy Cagle, who worked on the drug court where Estes sat, has accused him in a federal lawsuit of pressuring her into performing oral sex on him and then pushing her out of the drug court when she tried to end the relationship.

Estes says their relationship was consensual and denies harassing Cagle or playing a role in her losing her job. He says that Cagle initiated their first encounter and was the one who wanted to continue their relationship.

The Berkshire Eagle had the details of the lawsuit as did the Daily Hampshire Gazette.

The Boston Globe reported today that he has resigned. (Mike Frisch)

May 25, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, May 16, 2018

Tennessee Liberal Gets Reprimanded

A Tennessee General Sessions Court Judge has been reprimanded for dismissing a DUI to "do a veteran a favor," dismissing a courtroom full of cases en masse without hearing evidence to clear the overcrowded room and stopping by the roadside to interfere with a seatbelt violation citation (which he later dismissed ex parte)

WKRN.com reported 

General Sessions Judge Mike Hinson doesn't deny he has a liberal dismissal police when it comes to THP-issued citations.

In a recent interview, the judge said, "So we are being over-enforced. The THP come into a city to get their numbers."

Last May, a trooper pulled over a motorcycle rider who was allegedly going 78 in a 55 mph zone. The motorcyclist was ultimately arrested and charged with DUI.

According to the TBI, the man's blood alcohol was .122, which is well above the legal limit of .008.

But when the DUI suspect came before Judge Hinson, the case was dismissed.

By phone, Hinson, who refused to go on-camera regarding the dismissed DUI case, told News 2 he was simply trying to do a veteran a favor.

In a statement, he said, "To my knowledge, the blood alcohol levels you are citing were not available to me on the September court date."

According to the TBI, the results were available several months before and the official alcohol report was completed by the end of June 2017.

News 2 spoke to District Attorney Kim Helper, who said she could not comment on whether the citation was independently submitted to the grand jury.

She added her office was not involved in the original decision to dismiss it.

According to court documents, last year troopers wrote nearly 2,000 citations in Lewis County.

"They come over, as the troopers say, 'It's like writing fish in a barrel,'" Hinson said.

Of the nearly 2,000 citations given, Judge Hinson dismissed half of them.

Lt. Bill Miller told News 2 Hinson's liberal dismissal policy of THP tickets sends motorists the wrong message.

"It is clear that self-interest was placed ahead of the community interest and by doing that placed the community at risk," Miller said. "When you dismiss a .122 DUI, it clearly undermines what the THP is trying to do and that is to increase public safety."

Judge Hinson admitted he has dismissed an entire courtroom full of citations only once before and he said he did that for courtroom security when 12 troopers wrote so many citations that 300 people showed up for a court capable of holding 117 people.

The judge also told News 2, "Last week's story was not about me, nor individual state troopers - it was about a THP policy which I feel is discriminatory, wasteful and results in over-enforcement of small cities and rural counties."

Hinson continued, "The THP disagrees. I call upon the General Assembly to investigate this police and determine who is correct. If the THP is not going to over-enforce in downtown Franklin, then they shouldn't over-enforce in Hohenwald, Linden or any other small or rural area."

(Mike Frisch)

May 16, 2018 in Judicial Ethics and the Courts | Permalink | Comments (2)

Thursday, May 3, 2018

No Bar Sanction For Resigned Nebraska Justice

There are reports that the Nebraska Counsel for Discipline will not pursue ethics charges against a former and recently-resigned  Supreme Court Justice

The Omaha World-Herald reported on the resignation

Nebraska Supreme Court Judge Max Kelch’s abrupt resignation last month came in the face of an ethics investigation, two officials told The World-Herald.

The officials wouldn’t discuss details, but one said the allegations against Kelch are in line with the national #MeToo movement that has resulted in resignations of actors, politicians, business executives and judges over questions of sexual misconduct. Attorneys and former colleagues — including two women — told The World-Herald that Kelch’s judicial career has been pocked with sexual comments to women.

Kelch, 60, resigned Jan. 23 — less than two years after his appointment to the bench — rather than undergo an inquiry, according to the officials.

 Nebraska Gov. Pete Ricketts was unaware of any complaints or allegations against Kelch before his appointment to the Supreme Court in March 2016, said Taylor Gage, the governor’s spokesman.

“Of course the governor would not appoint someone with a known history of sexual harassment,” Gage said.

Kelch’s resignation has caused a stir in the hallways of the Capitol and in courthouses across the state. From the floor of the Legislature on Friday, State Sen. Ernie Chambers called on Chief Justice Mike Heavican and Kelch to explain Kelch’s departure, saying it had the potential to be “an impending, overhanging scandal.”

Former colleagues were staggered by the turn of events. Just last fall, a colleague said, Kelch had told people that he expected to become the state’s next chief justice, once Heavican retires. Yet a few months later, he walked away — a move that, because of his limited longevity, will significantly cost him on his pension.

Sarpy County Attorney Lee Polikov, who knew Kelch from the judge’s decadelong tenure in Sarpy, said he had never witnessed any untoward behavior by Kelch.

“He was a great county judge, a great district judge and was destined to be a great Supreme Court judge,” Polikov said. “It’s a shock.”

It’s less of a shock to those who knew another side of Kelch.

Two women who spoke to The World-Herald said Kelch had a strange, at-times suggestive manner. Neither woman said she would consider herself a #MeToo victim, but said Kelch’s comments could be a bit mind-boggling. One said he was sometimes too close for comfort in his chambers, leading the woman to joke about wanting a witness with her when she went to his office. The other said she once heard Kelch ask a petite female staffer in a public hallway about her bodybuilder boyfriend.

“How do you have sex with him?” Kelch asked in front of a number of people, according to the woman. “I would think he would break you in half.”

The staffer at the center of that comment didn’t return messages from The World-Herald.

Kelch also didn’t respond to requests for comment. When he resigned last month, Kelch sent a two-sentence letter to Ricketts that said “it is best for my family to submit my resignation.” Kelch and his wife have a son who is in his early 20s.

Nebraska State Court Administrator Corey Steel declined to comment and said Heavican would have no comment. Steel, who also serves on the Judicial Qualifications Commission, said the law prevents him from saying whether a complaint has been filed. In general, a complaint becomes public only after the commission decides to take disciplinary action against a judge.

The commission’s authority over the conduct of a judge ends upon their retirements or resignations, Steel added.

Nebraska Code of Judicial Conduct says judges shall uphold and promote the independence, integrity and impartiality of the judiciary, and shall avoid even the appearance of impropriety.

Additional language in the code says it applies to both the professional and personal conduct of judges. In addition, judges must accept they will be “subject to public scrutiny that might be viewed as burdensome if applied to other citizens.”

In response to a public records request by The World-Herald, the Governor’s Office released a file of 50 emails and letters submitted after Kelch was named a finalist for the high court. Most talked about Kelch’s impressive capacity for work, his impeccable judicial temperament and his fidelity to the law. A few made mentions of high personal character, and none offered any warnings.

“The first the governor became aware of any concern was when Judge Kelch contacted the governor to say there was a complaint filed against him,” Gage said. “Judge Kelch subsequently stepped down.”

Several colleagues praised Kelch’s work ethic, listening ability and pleasant demeanor, even as they described him as “socially awkward.”

Early in his law career, Kelch has told others, he once questioned the sexual orientation of his boss in front of the boss and other colleagues — an exchange that affected their relationship. Later, after he became a judge, Kelch encouraged a female attorney to apply for a judgeship. The woman said she thought she would enjoy the job and possessed the skills it required — and remarked that it was probably time to have a woman on the bench.

“Oh believe me,” he said, “everyone knows you’re a woman.”

Those comments stand in contrast to the serious, measured jurist in court. One longtime public defender called Kelch’s preparation for cases and legal research skills “legendary.”

In a pointed monologue on the floor of the Legislature on Friday, Chambers said he would demand answers as to why Kelch stepped down.

“I’m going to write the Chief Justice a letter and I’m going to say ‘Chief, you can hide the fire, but what are you going to do with the smoke? And when there’s so much smoke attending the departure of this judge, it doesn’t just affect him, it infects the integrity of the Nebraska Supreme Court,’ ” Chambers said.

Throughout his four decades as a lawmaker, the Omaha senator has pursued professional complaints against judges, some of which have resulted in removal, resignation or retirement. Chambers has balked at judges resigning in the midst of ethical inquiries, arguing that such investigations should be completed before a judge can receive retirement benefits.

In an interview, Chambers said his floor comments were based on credible information, but he declined to go into detail.

 

“I’m beginning to detect an odor that unfortunately smells very familiar,” Chambers said.

The prospect of a public fight over allegations may have factored into Kelch’s decision to resign, a court official said.

“Max is a worrier,” the official said. “His mind is grinding all the time.”

Kelch made $171,975 annually. His sudden retirement will cost him in terms of pension. With about 13 years on the bench, Kelch was seven years away from receiving a full pension — 70 percent of his annual salary.

He would be eligible for about 30 percent of his annual salary right now, according to estimates. If he waited to collect a pension until he’s 65, he would receive about half of his annual salary.

Steel, the court administrator, said the resignation would not have an impact on Kelch’s ability to receive a pension.

Those who recommended Kelch to the governor two years ago described him as humble, helpful, learned, fair, extremely hard-working, “always a gentleman” and “nothing if not professional.”

The woman who heard Kelch’s break-in-half comment said it contrasted with his courtroom demeanor.

“As a judge, you knew he was prepared every time he stepped on the bench,” she said. “I thought he was a really good trial judge. He was just so black and white about everything — very decisive.

“It’s just surprising to me that he didn’t apply the same black-and-white filter ... outside court.”

(Mike Frisch)

May 3, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, April 29, 2018

Fall From Grace

The New York State Commission on Judicial Conduct determined that a city court judge elected in 2014 should be removed from office.

The commission summarized its conclusions.

Judge Astacio was convicted of DWI in August 2016, in an episode that commenced when she was found in her seriously damaged car on the side of the road. She aggravated the situation by her profane and angry reaction to the investigating trooper, and by invoking her judicial office in an attempt to evade the consequences of her arrest. The judge was sentenced to a one-year conditional discharge.

In the next months, she was found to have violated the terms of her conditional sentence on two occasions. In November 2016 she pled guilty to attempting to start and operate her vehicle while testing positive for alcohol on the ignition interlock device in her car.

In May 2017 she failed to provide a court-ordered alcohol test and failed to appear in court as ordered, having departed for a lengthy trip to Thailand. Her conditional sentence for Driving While Intoxicated was revoked and she was sentenced to 60  days in jail and three years’ probation.

The Commission also found that Judge Astacio engaged in misconduct on the bench by failing to disqualify herself from conducting the arraignment of a former client and by making discourteous, insensitive and undignified comments from the bench while presiding over three cases. For example, (1) she told a sheriff’s deputy that he should “tase” or “shoot” or “punch” an allegedly obstreperous  defendant “in the face” and (2) in a sexual abuse case, she laughed when the defendant’s attorney said that the alleged victim had “buyer’s remorse” and later said she thought the comment was “freakin hilarious” even while acknowledging that the prosecutor was “offended.”

 The relevant documents are linked here.

A  lengthy and thought provoking report from the Democrat & Chronicle. (Mike Frisch)

April 29, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 25, 2018

An Alleged Theft Leads To Resignation

A New York Town Court Justice who is also an attorney has resigned in the face of an indictment as stipulated to by the Justice and the Commission on Judicial Conduct.

NYup.com reported

Authorities say a suburban Albany town justice and a lawyer have been charged with stealing more than $4 million from the family trusts of three sisters.

New York Attorney General Eric Schneiderman says 57-year-old Richard Sherwood and 59-year-old Thomas Lagan were arrested Friday on charges including grand larceny and scheme to defraud.

Authorities say the men were business associates who devised a scheme to steal from trusts set up by local philanthropists Warren and Pauline Bruggeman. Schneiderman says the thefts also targeted trusts for Pauline Bruggeman's two sisters.

Sherwood is a former Guilderland town attorney who has served as town justice since 2013. Lagan is a lawyer and financial adviser.

Sherwood pleaded not guilty and was released. His lawyer isn't commenting on the charges. A message left with Lagan's lawyer wasn't returned.

(Mike Frisch)

April 25, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, April 11, 2018

New book on visiting judges in federal courts

Not a book on the legal profession, true, but more on law and society. I thought some of our readers would want to know about a new book that I didn't write but did edit and publish on behalf of the author, political scientist Steve Wasby. It's Borrowed Judges: Visitors in the U.S. Courts of Appeals. It is about how federal appellate courts use visiting judges--from other circuits, from the district courts, even from their Senior Judges bench. It publishes at midnight, or likely already as you read this. [Alan Childress]

April 11, 2018 in Judicial Ethics and the Courts, Law & Society | Permalink | Comments (0)

Friday, April 6, 2018

Where Brevity Is The Soul Of Injustice

The Kansas Supreme Court published its conclusions of misconduct by a former judge

Respondent left the bench in the spring of 2017. But the primary misconduct occurred on September 7, 2016, while she was a judge. Accordingly, this court has jurisdiction over this matter.

The matter that led to discipline is reflected by a full hearing transcript

'THE COURT: Court will call 10TR604 State of Kansas v. Brandi Lee Heather. Are you Brandi Heather?

'THE DEFENDANT: Yes.

'THE COURT: Show Mr. Andrews for the State. Defendant appears in person, in custody, pro se.

'There's a motion to revoke your probation for failure to comply on file for various reasons. I find that sufficient. I revoke your probation and remand you to the custody of the Sheriff's Office to serve the balance of your sentence.

'We're adjourned. Parties may withdraw.'

The judge failed to participate in the ensuing misconduct proceedings.

She also failed to appear for the oral argument, which is linked here. (Mike Frisch)

April 6, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, March 30, 2018

The Fix

A ticket-fixing former judge was reciprocally suspended by the New York Appellate Division for the First Judicial Department based on a New Jersey sanction

Respondent was suspended for three months in New Jersey based upon misconduct committed while he was a part-time Municipal Court Judge in Jersey City (2004-2007) during which time he submitted parking and traffic tickets issued to him and members of his family to his judicial colleagues for improper adjudication.

Respondent stipulated to facts relating to his involvement in ticket fixing. In 2005, respondent received a ticket for debris left at his law office in Jersey City. Respondent knew that he could not dismiss or adjudicate his own ticket so he brought it to his supervising judge. Respondent represented to New Jersey disciplinary authorities that the perception in the Jersey City Municipal Court was that you could not dismiss your own ticket but you could give it to another judge. The Judge adjudicated the ticket in chambers and respondent paid a $50 fine and $20 court costs. Respondent considered this adjudication to be a "test run" and assumed that other tickets could be handled in similar fashion.

Respondent also presented parking tickets issued to him and his wife to his colleague (who shared law office space with respondent, did per diem work for him for which they were paid, and was listed as "of counsel"). The colleague adjudicated the matters, finding respondent and his wife guilty, waiving the $42 fine for both tickets, and imposing $30 in court costs notwithstanding that neither respondent nor his wife formally appeared in court, nor had they pled guilty by mail as provided for in the court rules. The $30 in assessed costs was paid to the court.

Respondent also submitted a traffic ticket issued to his son in 2004 for failure to observe a traffic control device, a moving violation, to this same colleague who amended the ticket to delaying traffic, a no-point violation, and imposed a $25 fine and $25 in court costs. Respondent's son was found guilty of the amended offense notwithstanding he never formally appeared in the courtroom, but was standing outside in the hallway, and did not enter a guilty plea in a manner prescribed by the court rules. Further, no factual basis for the amended charge was placed on the record and neither the municipal prosecutor nor the police officer who issued the ticket were given notice or opportunity to be heard on the matter. The $50 fine was paid to the court.

In 2007, in response to rumors of improper ticket handling respondent asked an administrative clerk about vacating the tickets adjudicated. Respondent asserted that he was prepared to pay the maximum fine for each of the tickets but the clerk informed him that a ticket could not be vacated once it was entered "in the system." At or around this time, respondent and others became the subjects of investigations conducted by the court system and the New Jersey Attorney General's Office.

On October 3, 2007, respondent voluntarily took an unpaid leave of absence from his judicial position. Thereafter, on or about October 7, 2007, respondent was criminally charged with official misconduct in violation of New Jersey Statutes Annotated 2C:30-2(a). On August 28, 2009, the court granted respondent's application for admission to New Jersey's Pre-Trial Intervention (PTI) program for a period of two years as a condition of which he admitted to his mishandling the traffic tickets at issue and agreed never to hold judicial office again in the future. Respondent successfully completed the PTI program and the charge against him was dismissed.

In 2014, the New Jersey Office of Attorney Ethics (OAE) filed a formal disciplinary complaint against respondent charging him with violations of New Jersey Rules of Professional Conduct (NJRPC) 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, specifically, official misconduct [*3]under NJ Stat Ann 2C:30-2[a]) and NJRPC 8.4(d) (conduct that is prejudicial to the administration of justice). Respondent, represented by counsel, admitted the material facts alleged by the OAE and admitted the NJRPC 8.4(d) charge.

In July 2015, following a hearing on the NJRPC 8.4(b) charge and appropriate sanction to impose, a District Ethics Committee (DEC) issued a report in which it sustained both of the alleged disciplinary violations and recommended respondent be suspended for three months, one month of which should be suspended.

Mitigation

In mitigation, the DEC considered respondent's past accomplishments (which included his prior career as a Roman Catholic priest), his pro bono and civic work for the Filipino community, his character evidence, the fact that seven years had passed since respondent was first served with the OAE's grievance against him, he cooperated with law enforcement and the OAE, he had no prior disciplinary history, and his sincere remorse.

Sanction

Here, the New Jersey Supreme Court imposed a three-month suspension which is in general accord with New York precedent involving arguably similar misconduct .

(Mike Frisch)

March 30, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 27, 2018

A Fair If Imperfect Proceeding

The Maryland Court of Appeals has held that a sitting judge reprimanded by the state commission received a fair, although not perfect, hearing with adequate due process

We must decide whether proceedings before the Maryland Commission on Judicial Disabilities (“Commission”) violated a judge’s due process rights. As we explained last year, although we have no appellate jurisdiction to review a judge’s exceptions to the Commission’s determination to issue a public reprimand after public charges and a contested hearing, the common law writ of mandamus provides an avenue for a judge to challenge the fundamental fairness of the proceedings before the Commission. Matter of White, 451 Md. 630, 649–50 (2017) (per curiam) [hereinafter White I]. We previously refrained from deciding the due process claims made by Petitioner, Judge Pamela J. White, because we did not have the full record of the Commission proceedings before us. Id. at 652–53. After review of the complete record, we hold that, although the Commission violated applicable Maryland Rules, these violations did not ultimately deprive Judge White of a fundamentally fair proceeding...

“An accused judge is entitled to a fair proceeding, but not necessarily a perfect proceeding.” White I, 451 Md. at 648. As we have detailed, the proceeding before the Commission certainly was not perfect—several mistakes were made. But in this mandamus proceeding, we look only to whether Judge White received the fundamental due process protections under the Maryland Constitution and our Rules, namely “notice, an opportunity to respond, [and] a fair hearing . . . .” Id. Our careful scrutiny of the record convinces us that she did.

The court noted that the issuance of a reprimand was within the powers of the commission over which it did not exercise appellate review.

The judge had raised objections regarding procedures both in the investigatory and adjudicative process

Certainly, judges facing disciplinary proceedings are entitled to notice of the charges against them. Cf. Attorney Grievance Comm’n v. Seiden, 373 Md. 409, 416–21 (2003). A judge’s due process rights are violated, for example, when discipline is based on a rule violation that was not charged. Id.; see also In re Ruffalo, 390 U.S. 544, 550–51 (1968) (attorney discipline charges “must be known before the proceedings commence. . . . [and] become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused.”).

Here though, Judge White was charged with violating MCJC 1.2, and her conduct at the hearings on May 5, 2014 was identified as a basis for the charges. Unlike the respondents in Seiden and Ruffalo, who were not charged with the rule violations they were ultimately found to have committed, Judge White knew that her conduct at this hearing was part of the complaint and would be considered by the Commission. She had notice of the charged misconduct attributed to her behavior at the May 5, 2014 hearing and the Commission’s sanction did not exceed the charges.

Our earlier coverage is linked here.

The judicial complaint involved a judge-lawyer interaction in a civil case that had led to the judge's recusal.

The judge stated

[B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I’m in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones Esquire – I’m reading off the letterhead – tells me. I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I’m forced to recuse myself and I can’t get past the idea that I cannot believe a darn thing that Mr. Jones tells me now. So I am compelled under … Rule 2.11 [of the Maryland Code of Judicial Conduct] to disqualify myself in any further proceedings in this case, because I now believe based on Mr. Jones’ conduct and representations in this case, in his discussion and exploration of who struck John in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him, I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I’m going to recuse myself.

The court

Notwithstanding her decision to recuse herself from the trial of the Joyner case, Judge White stated that she would preside over the October 31, 2014, hearing regarding the show cause order she had issued because, as she stated, it was her “responsibility to address it.”

Then

Mr. Jones filed multiple complaints concerning Judge White with the Commission beginning on October 20, 2014. Following an investigation, and with the authorization of the Commission, Investigative Counsel filed charges dated March 31, 2016 against Judge White. Investigative Counsel alleged that Judge White had violated various provisions of the Maryland Code of Judicial Conduct. All of the charges concerned Judge White’s conduct during the three hearings in the Joyner case during 2014.

A hearing was held by the Commission and a reprimand imposed.

(Mike Frisch)

March 27, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, March 23, 2018

Judicial Misconduct Not Proven

The  Maryland Court of Appeals found a judge did not engage in misconduct by entering this order with an opinion to follow

WHEREAS, the Maryland Commission on Judicial Disabilities (“Commission”), pursuant to Maryland Rule 18-407 (j) and (k), referred to this Court the case of In the Matter of the Honorable Mary C. Reese, Judge of the District Court of Maryland for Howard County, Tenth Judicial Circuit, Case Nos. CJD 2015-132, CJD 2015-133, and CJD 2015-134 for expedited consideration pursuant to Maryland Rule 18-408(a), and

WHEREAS, the Commission alleged that Judge Reese violated the Maryland Code of Judicial Conduct, specifically Maryland Rules 18-101.1 and 18-102.5, as a result of her presiding over a peace order hearing in the District Court of Maryland sitting in Carroll County, and

WHEREAS, this Court having concluded that the Commission did not prove by clear and convincing evidence that Judge Reese lacked the competence and diligence necessary to complete her judicial responsibilities or otherwise committed sanctionable conduct, as defined by Maryland Rule 18-401(j), and

WHEREAS, this Court held Oral Argument on March 6, 2018 and for reasons to be stated in an opinion later to filed, it is this 22nd day of March 2018,

ORDERED, by the Court of Appeals, that this proceeding against Judge Mary C. Reese be, and is, hereby dismissed with prejudice.

The alleged misconduct -reported by WBAL TV 11 - involved comments made from the bench in two domestic violence matters.

Our coverage of the oral argument describes the allegations. (Mike Frisch)

March 23, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, March 20, 2018

No Recusal Required

An order denying recusal from the Chief Justice of the Ohio Supreme Court in a criminal case

Ms. Williams claims that she will not receive a fair trial before Judge D’Apolito, primarily because, she claims, he engaged in an ex parte communication with the alleged victim in this case. Specifically, she states that before a March 2017 hearing on her motion to reduce bond, the judge excluded her from an off-the-record meeting in his chambers with the alleged victim, the prosecutor, and her defense counsel. Ms. Williams believes that the judge’s conduct violated her constitutional and statutory rights and that the judge is biased against her because she is an African-American female and the alleged victim is a white male.

 Judge D’Apolito has responded in writing to the affidavit. The judge acknowledges that immediately before the March hearing, he met with the alleged victim and counsel in his chambers. According to the judge, the victim feared for his safety and counsel agreed to a discussion with the victim in chambers to reduce any anxiety. After the five-minute meeting, the alleged victim and counsel proceeded into the courtroom for a hearing on the record, in which both sides were given the opportunity to present their positions on the motion to reduce bond. Judge D’Apolito states that he denied Ms. Williams’s motion based solely on the evidence introduced during the hearing and on the record. The judge believes that he has taken the steps necessary to protect Ms. Williams’s legal rights.

There was no showing necessary for disqualification

Ms. Williams may have other remedies for her disagreement with how the judge handled her bond hearing, but she has not established that the judge’s actions were the product of bias against her.

(Mike Frisch)

March 20, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, March 19, 2018

Appearances Matter

The Ohio Supreme Court Chief Justice granted disqualification of a judge

In July 2015, a jury convicted Mr. Kraus—who was, at the time, a member of the Ohio House of Representatives—of theft from an elderly person. In December 2016, the Sixth District Court of Appeals affirmed his conviction. State v. Kraus, 2016-Ohio-8003, 74 N.E.3d 880 (6th Dist.). In early 2017, Mr. Kraus filed a motion for new trial, a petition to vacate his conviction, and several amendments to the petition. In his filings, Mr. Kraus argues, based on newly discovered e-mails from the Ottawa County prosecuting attorney’s office, that the state of Ohio failed to turn over evidence that he could have used for a selective prosecution defense. For example, Mr. Kraus asserts that a recently released e-mail shows that although the Ottawa County prosecuting attorney had purportedly recused himself from Mr. Kraus’s criminal investigation, the prosecutor communicated with Chris Redfern, who was Mr. Kraus’s 2014 election opponent, about the investigation before Mr. Kraus was indicted. In Mr. Kraus’s words, his recent filings contain “strong evidence of interference with criminal proceedings for political purposes.” Mr. Kraus also asserts that he submitted “evidence of a close social relationship” between Mr. Redfern and Judge Crawford that predates Mr. Kraus’s conviction.

While finding that the judge could be fair and impartial, there was the potential for an appearance of impropriety

Here, Mr. Kraus describes his recent filings as setting forth serious allegations of possible collusive activities for political purposes by the Ottawa County prosecuting attorney, the special prosecutor ultimately assigned to the underlying case, and Chris Redfern. Judge Crawford admits that since Mr. Kraus’s criminal trial, he has socialized with Mr. Redfern and his wife “numerous times,” that a person with whom the judge shares his boat is a “close personal friend” of Mr. Redfern, and that Mr. Redfern has been on the judge’s boat. Given Judge Crawford’s recent familiarity with Mr. Redfern and given the current allegations involving Mr. Redfern, an objective observer might question the ability of Judge Crawford to impartially decide Mr. Kraus’s pending matters. See In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (explaining that an appearance of impropriety exists “if a reasonable and objective observer would harbor serious doubts about the judge’s impartiality”). Further, considering that Mr. Kraus’s current allegations involve public officials and the integrity of the judicial process, it is best that a visiting judge with no personal connections to the parties or related individuals presides over the pending posttrial issues.

 (Mike Frisch)

March 19, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)