Thursday, November 2, 2017

Resignation Closes Judicial Discipline Matter

The Nevada Supreme Court administratively closed a judicial discipline matter.

From the Las Vegas Review-Journal

A longtime Goodsprings judge has resigned less than a month after being suspended without pay for a year.

Former Justice of the Peace Dawn Haviland resigned effective Sept. 18. She had served as Goodsprings’ only justice of the peace since she was appointed to the position in 1999.

Haviland’s attorney, Albert Marquis, said the former judge was disheartened by the Nevada Commission on Judicial Discipline’s investigation into and ruling on ethics charges that led to her suspension without pay in late August.

“What a terrible injustice was reaped upon Dawn Haviland,” Marquis said. “Three disgruntled employees conspired together to drag a judge off the bench, and with the help of the Nevada Commission on Judicial Discipline they succeeded.”

Marquis added that Haviland could not afford the “thousands of dollars” it would cost to attend classes at the Nevada Judicial College at her own expense, which was a requirement of her punishment.

County spokesman Erik Pappa said three temporary justices of the peace will rotate to cover Haviland’s calendar. The same arrangement has been in place since December, when Haviland was suspended with pay.

Commissioners are scheduled to discuss Tuesday how they will replace Haviland and Las Vegas Justice of the Peace Deborah Lippis, who resigned in August.

Commissioners can fill the vacancies by either appointment or special election.

Haviland’s term was set to expire in January 2019.

Year-long investigation

The Nevada Commission on Judicial Discipline suspended Haviland with pay in December based on findings “into numerous allegations of judicial misconduct,” according to a public notice released at the time.

In March, state disciplinary investigators charged Haviland with multiple ethics complaints, including sealing her then-son-in-law’s criminal records, ordering staff to run background checks on her friend’s boyfriend, and bullying employees while using commentary rife with vulgarity.

In a 14-page written response Haviland claimed the charges were false and concocted by disgruntled employees.

“I have at all times during my 20-year career attempted to administer justice fairly and within the confines of the law,” Haviland wrote.

The commission suspended Haviland without pay in late August.

In its ruling, the commission wrote Haviland was punished for her “repeated failure over several years to follow the law, her proclivity towards following her own moral compass in administering her version of justice irrespective of the law, and her lack of remorse and admission of wrongdoing for the same.”

Contact Michael Scott Davidson at or 702-477- 3861. Follow @davidsonlvrj on Twitter.

(Mike Frisch )

November 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Feuding Judge Gets Short Florida Suspension

A public reprimand and a 30-day suspension without pay has been imposed by the Florida Supreme Court on a county court judge

Judge Yacucci’s violations occurred during the course of an adversarial and contentious professional relationship between Judge Yacucci and attorney Stephen Smith. Id. at 1. Judge Yacucci has served as a county court judge in St. Lucie County since 2002. Id. at 3. Smith, who joined his current employer “The Ticket Clinic” in 2009, handled all of the Ticket Clinic’s cases in St. Lucie County. Id. at 4. Judge Yacucci held Smith in contempt in 2009 for accidentally showing up late to a hearing, and again in 2014 where he jailed Smith for five days for “hotly disputed” reasons. Id. During the 2014 contempt finding, Judge Yacucci announced in the courtroom that he had “lost confidence” in Smith, and subsequently filed a Florida Bar complaint which was later resolved with no imposition of discipline. Id. at 4-5.

Thereafter, in 2014, Smith ran against Judge Yacucci for a county court seat in a highly combative election. Id. at 5. Judge Yacucci sued Smith and an electioneering communication organization (“ECO”) for defamation, invasion of privacy, and intentional infliction of emotional distress. Id. Judge Yacucci obtained a temporary injunction against the ECO, but the Fourth District Court of Appeal in Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68, 72-73 (Fla. 4th DCA 2014), overturned it for lacking supporting evidence and for triggering First Amendment concerns. Id. at 5-6.

Before election day, a public altercation between Smith and Judge Yacucci occurred at a polling place. Id. at 6. Judge Yacucci asserted that Smith made a sexual innuendo about Judge Yacucci’s wife, and that he responded with heated and profane words. Id. Smith asserted that the judge verbally attacked and physically assaulted him, and so he subsequently sued Judge Yacucci for assault, battery, and defamation. Id. During a televised interview in his courtroom immediately following the incident, Judge Yacucci remarked that Smith “should not be a lawyer,” “should not be in a courtroom,” and that he is “truly a disgrace as a judicial candidate and really as a human being.” Id.

Judge Yacucci won and stated he would recuse himself from Smith's cases for 2 1/2 years but failed to honor that limitation.

The court

Judge Yacucci’s conduct warrants a sanction harsher than a mere public reprimand, as his longstanding combative relationship with Smith created legitimate fears of partiality and bias on the part of several litigants before his court. The acrimonious relationship between Judge Yacucci and Smith, marked by lawsuits, a public altercation and televised disparagement, the jailing of Smith for contempt, judicial campaign disputes, unsolicited attempts to influence a petition for writ of prohibition, and multiple refusals to disqualify himself, clearly displayed Judge Yacucci’s disregard for proper judicial conduct. Further, the responses filed by Judge Yacucci disputed the charges against him and attempted to taint the court’s view of Smith. The judge’s pattern of behavior towards Smith and his refusal to disqualify himself on several cases despite the legal sufficiency of Smith’s motions constitute clear and egregious violations of the Canons of the Code of Judicial Conduct.

Judge Pariente concurred and dissented 

I dissent in part because I conclude that a longer suspension of at least ninety days is warranted in light of the totality of Judge Yacucci’s conduct, which occurred over a period of years and was unbefitting of a judicial officer both in the courtroom and on the campaign trail. I recognize that Judge Yacucci, first elected as a county court judge in 2002, has in many respects had an unblemished legal and judicial career, but we cannot and do not condone Judge Yacucci’s misconduct as found by the Judicial Qualifications Commission (“JQC”) and approved by this Court...

Judge Yacucci’s cumulative misconduct in this case diminished the public’s perception of the judiciary and, by engaging in this conduct, Judge Yacucci failed to uphold the integrity and independence of the judicial office. If the JQC’s unrefuted findings of misconduct did not cause Judge Yacucci to reflect upon the totality of his actions, I am skeptical that this Court requiring Judge Yacucci to take a judicial ethics course will have its desired effect. See majority op. at 1. For all of these reasons, I would conclude that the conduct in this case warrants, at minimum, a ninety-day suspension.

(Mike Frisch)

November 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, October 28, 2017

Round Two

An oral argument worth watching is set for November 3 in the Maryland Court of Appeals

Misc. No. 5 (2016 T.) In the Matter of The Honorable Pamela J. White

Attorney for Appellant: Andrew Jay Graham
Attorneys for Appellee: Bruce L. Marcus and Julia Doyle Bernhardt

Our prior coverage is linked here

In a matter involving allegations of misconduct against a sitting judge, the Maryland Court of Appeals directed that the Commission on Judicial Disabilities file the record of proceedings leading to a reprimand for the court's limited review

The Commission has the power to reprimand a judge, which it had exercised in the matter.

The court

In this case, we must decide – initially – whether there is any mechanism for this Court to review the fundamental fairness of a proceeding conducted by the Commission on Judicial Disabilities (“Commission”) when the Commission disciplines a judge in the sole manner in which the Constitution authorizes it to do without referring the matter to this Court. We hold that there is such a mechanism – the common law writ of mandamus. Our review in this particular case awaits the provision by the Commission of the record of its proceedings.

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.”


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.

The judge sought review

The immediate question before us is whether there is any mechanism for us to review Commission proceedings when the Commission determines that a reprimand is the appropriate discipline – a form of discipline that the Constitution authorizes the Commission to impose on its own without referring the matter to us. We hold that there is no constitutional or statutory basis for this Court to exercise appellate jurisdiction to review the Commission’s proceedings. We do have original jurisdiction, however, to conduct a limited review, pursuant to a common law writ of mandamus, of Judge White’s claims that the Commission abused its discretion and deprived her of the procedural due process guaranteed by the State Constitution and Maryland Rules. In order to conduct that review, we direct the Commission to file the record of its proceedings with us. To the extent that Judge White asks for review of matters that preceded the filing of charges, she must submit a written waiver of confidentiality to the Commission.

The court held that an accused judge is entitled to due process but

Our review under a writ of mandamus, however, is limited. The Constitution and our rules provide for the Commission to issue a reprimand without approval or review by this Court. The Commission’s decision to issue a public reprimand is properly classified as a non-ministerial discretionary act that is dependent upon the judgment of the Commission members. Once the Commission has provided an accused judge with the requisite due process, it is entrusted to the Commission’s discretion whether to dismiss the charges, reprimand the judge, or recommend other discipline to us. Thus, a writ of mandamus is not available to review a claim that the Commission erred in concluding that a judge committed sanctionable conduct or in its judgment to reprimand the judge as a result of that conclusion...

In order to carry out the review of Commission proceedings for which we have jurisdiction, we direct the Commission to file the record of the proceedings concerning its charges against Judge White, including that part of its record relating to the pre-charging period for which Judge White waives confidentiality. Once the record has been filed with the Court, the parties shall submit additional briefs and an appropriate record extract, according to a schedule set forth by future order of the Court. Such briefing shall be limited to the question of whether the Commission proceedings failed to comply with the Constitution and Maryland Rules and, if so, whether any such failure affected the fundamental fairness of the proceeding.

The charges filed against the judge are linked here.

The oral argument before the Court of Appeals is linked here.

The judge's alma mater Washington & Lee noted that she was named Maryland Judge of the Year in 2014. 

(Mike Frisch)

October 28, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, October 17, 2017

A Parent Conflict Gets Non-Lawyer Judge Removed From Office; Called Prosecutor "Girl" And "Kid"

The New York Court of Appeals accepted the removal of a non-attorney town court justice

Here, it was improper and a violation of petitioner's ethical duty for him to use his judicial position to interfere in the disposition of his daughter's traffic ticket. It was further improper for petitioner to tell the prosecutor that in his opinion and that of his colleagues the matter should be dismissed. By these actions petitioner did more than act as would any concerned parent, as he now maintains. Instead, he used his status to gain access to court personnel under circumstances not available to the general public, and, in his effort to persuade the prosecutor to drop the matter, gave his unsolicited judicial opinion. Furthermore, petitioner's imperious and discourteous manner towards the prosecutor on the case undermined "the integrity . . . of the judiciary." Even during the course of the Commission's proceedings petitioner exhibited no insight into the impropriety of his conduct. For example, he used paternalistic and infantalizing terms, referring to the prosecutor as "girl" and "kid," colloquialisms that were disrespectful and inappropriate.

Petitioner's actions during the Finch appeals, including his several ex parte communications to County Court advocating for dismissal of the matter and extolling the correctness of his decisionmaking, were also highly improper...

He persisted in this serious misconduct even after County Court informed petitioner that his comments were "troubling" and further instructed him as to the appellate process and petitioner's proper role.

Petitioner's misconduct is compounded by his failure to recognize these breaches of our ethical standards and the public trust. Before the Commission's referee, the Commission itself, and this Court he continued to minimize the import of his actions. Rather than acknowledge his obligations and the implications of his conduct, petitioner asserts that he should not be removed because he acted as a father in his daughter's case, not as a judge, and because his communications in the Finch appeals were in good faith and substantially correct. He focuses on what he perceives as a misunderstanding, stating that "[t]his experience has taught [him] how easily words and actions can be misinterpreted and to avoid any occasion or situation that could be misconstrued." Petitioner fails to accept that this is not a question of a misunderstanding. As a judge he had but one choice: to refrain from "lend[ing] the prestige of judicial office to advance the private interests of . . . others" (22 NYCRR 100.2 [C]), which included any communication on behalf of his daughter which could be "perceived as one backed by the power and prestige of judicial office" 

The removal order of the Commission on Judicial Conduct is linked here. (Mike Frisch)

October 17, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, October 9, 2017

What Happens In Vegas

ProPublica reports

A former Las Vegas prosecutor whose misconduct in a wrongful murder conviction was detailed in a ProPublica and Vanity Fair story in May has been rebuked again, this time for his conduct as a judge.

The Nevada Commission on Judicial Discipline publicly reprimanded Judge William Kephart in August for violating four ethics regulations. The sanction did not include any fine or discipline, but was posted online.

ProPublica’s story focused on the case of Fred Steese, a drifter convicted of murdering a Vegas trapeze artist-turned-trained poodle performer. Kephart, known as “Wild Bill,” led the prosecution. Nearly 20 years later, Steese was proved innocent after exculpatory evidence was found in the prosecution’s files.

In an accompanying story, we described how the Supreme Court of Nevada had noted prosecutorial misconduct in at least five of Kephart’s cases over a dozen years, including instances in which he choked a witness on the stand and downplayed the reasonable doubt standard by telling a jury they needed only a “gut feeling.” In 2002, Kephart was fined $250 by Nevada’s high court for a “violation of the Rules of Professional Conduct.” Although at the time Kephart promised the justices that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future,” he was again called out for bad behavior in 2008 when the court tossed out a murder conviction.

Despite these cases, Kephart moved on to the bench, eventually winning a seat on the city’s Eighth Judicial District in 2014. His term is up in 2020.

Kephart’s newest sanction involves his comments on a 2002 case in which he prosecuted Kirstin Lobato for murder. The case later became nationally known for its meager evidence against the then 19-year-old and was picked up by the Innocence Project. In February 2016, Lobato had a pending appeal before Nevada’s Supreme Court when Kephart gave a media interview in which he said the case “was completely justice done.” His comments prompted an inquiry and subsequent judicial misconduct charges, because asserting her guilt while she had an ongoing innocence claim “could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges.

The commission announced the charges in May and Kephart denied wrongdoing — saying in part that his “character and reputation” should be a mitigating factor. But he later conceded that he had broken the ethics rules and agreed to the reprimand. Neither Kephart or his lawyer, William Terry, responded to requests for comment. Nor did a spokesman for the Eighth Judicial District.

Lobato was subsequently granted an evidentiary hearing by the state’s high court that is scheduled to begin today.

(Mike Frisch)

October 9, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, October 2, 2017

Judge Accused

3WKYC reports

A three-term judge is under fire amid questions of a lax work schedule, excessive spending and claims that she’s using her office to campaign for re-election.

Lyndhurst Municipal Court Judge Mary Kaye Bozza denies any inappropriate conduct or misspending, yet she finds herself embroiled in a voter’s lawsuit over records she’s refusing to release.

She’s accused of working what amounts to a 4-day work week, missing as many as two dozen Fridays this year alone.

Michael Kaplan, a Highland Heights resident, has filed suit, seeking records showing when Bozza worked and when she took sick or vacation time.

Bozza has said the records do not exist.

The judge declined an on-camera interview. But in a phone call with Channel 3 News’ Tom Meyer, Bozza denied working a 4-day work week, saying that as a judge she frequently works outside the courthouse.

Critics have photographed her empty parking spot repeatedly this year and noted 25 Fridays and 18 other work days when Bozza was not at work.

This month, for example, Channel 3 News watched on a Friday as Bozza arrived at work after 2 p.m. She stayed until 5 p.m. Her dockets on Fridays are typically covered by one of three magistrates assigned to the court.

 Bozza refused to explain her whereabouts Friday to Meyer.

“I don’t have to tell you how I spent the rest of the day,” Bozza told Meyer.

Bozza says she’s missed 12 days this year, but she could not provide documents showing her attendance.

Records released by Bozza show the court has spent $93,544 on visiting judges the past six years to help run her docket. However, records from the Ohio Supreme Court show Bozza’s docket to be one of the 10 most active in the state.

The records also show Bozza spent thousands to travel to judicial conferences in Hawaii, Las Vegas, Florida and New Orleans. She is also given a cell phone and iPad and bills from Verizon routinely surpass $200 a month, according to records released by the court.

Bozza said she uses the iPad to conduct court business. She is unaware if other judges are provided a free cell phone.

Kaplan filed an action before the Ohio Supreme Court seeking release of Bozza’s office emails that she and city attorneys have so far refused to surrender, citing exceptions to state public record laws.

Kaplan’s attorney, Larry Zukerman, said the emails may show additional evidence that Bozza is using court resources for re-election purposes.

"The public should know when they're working and what they're doing and what they're working on,” Zukerman said. “My client just wants to make sure that the citizens of all these municipalities that pay for the court are getting their money’s worth.”

As proof of his client’s concern, Zukerman pointed to the court’s public access website which contains language such as “Experience Matters” in bold letters on Bozza’s page. The motto is identical to the words found on Bozza’s campaign website.

Bozza, first elected in 1999, has never had a challenger for re-election. This year, she is opposed by attorney Dominic Coletta.

The court covers Lyndhurst, Mayfield Heights, Mayfield, Highland Heights, Richmond Heights and Gates Mills.

Hat tip to web page of the Ohio Supreme Court. (Mike Frisch)

October 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 27, 2017

No Button For Judge Spouse

An opinion from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2017-16 (Election)
Date of Issue: September 2, 2017


1.  May a judge appear as the candidate’s spouse in a family photograph to be used in the spouse’s campaign seeking election to a partisan office?

ANSWER: Yes, as long as the judge is not identified as a judge, and there is no indication that the judge has endorsed the spouse’s candidacy.

2.  May a judge appear at non-partisan events where the judge’s spouse, a declared candidate for an elected partisan office, will be speaking, for example, local citizens’ groups or neighborhood forums?

ANSWER: No. The judge’s mere presence may be perceived as endorsing the spouse’s candidacy in violation of Canon 7A(1)(b).

3.  May a judge attend any fundraising events for the judge’s spouse, a declared candidate for an elected partisan office, if those events are not sponsored by a political party (i.e., “friendraisers” at private homes)?

ANSWER: No. Canon 7D states that a judge shall not engage in any political activity with certain exceptions.  Canon 7A(1)(b) prohibits a judge from publicly endorsing another candidate for public office.  Canon 7A(1)(e) prohibits a judge from soliciting funds for a candidate.

4.  May a judge wear a campaign button or any other item supporting the spouse’s political campaign?

ANSWER: No. Canon 7A(1)(b) prohibits a judge from publicly endorsing another candidate for public office.

(Mike Frisch)

September 27, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 20, 2017

Recusal Denied Despite Improper Independent Investigation By Judge

The Tennessee Supreme Court reversed an order granting a judge's recusal in a civil case for an improper ex parte telephone call

This case is on appeal from a trial court judge’s decision not to recuse herself based on a telephone call to a university department director concerning a potential expert witness’ qualifications. Upon the trial court’s denial of the defendant’s motion for recusal of the trial court judge, the defendant filed an accelerated interlocutory appeal in the Court of Appeals pursuant to Tennessee Supreme Court Rule 10B, section 2. The Court of Appeals reversed the trial court’s decision, holding that recusal of the trial judge was necessary. We granted the plaintiff’s accelerated application for permission to appeal to this Court. Having thoroughly reviewed the filings of both parties and the applicable law, we conclude that the trial court’s denial of the motion to recuse was appropriate in this case. Therefore, we reverse the decision of the Court of Appeals.


While perhaps ill-advised because she did not consult with the parties first, the trial judge simply sought general information regarding whether a court-appointed CRC would be a workable option to help the parties resolve their dispute. And importantly, the trial judge ultimately allowed the Defendant’s proposed expert to examine the Plaintiff again, even though the matter had been pending for almost four years. In sum, the trial judge’s conduct throughout these proceedings would not give a person of ordinary prudence reason to question her impartiality.

Justice Page dissented

Regardless of her motive, the trial judge undertook an independent investigation of disputed facts by telephoning the director of the program at the University of Tennessee and inquiring about credentials of CRCs, contrary to the Code of Judicial Conduct. Id. at Canon 2.9(C) (“A judge shall not investigate facts in a matter independently[] and shall consider only the evidence presented and any facts that may properly be judicially noticed.”). The majority acknowledges that the trial judge’s actions constituted ex parte communications and an independent investigation. This is exacerbated by the fact that the conversation was held off the record, and the parties did not know the full content of exactly what was said. As noted by Judge Dinkins’ concurring opinion, by engaging in ex parte communications with the professor “without the knowledge or consent of the parties, the court was not only denied the opportunity to create a record of the purpose fornthe call prior to it being made, but the parties were denied the opportunity to preserve an objection.” Holsclaw, 2016 WL 7364901, at *9 (Dinkins, J., concurring).

While there was no record evidence of actual partiality, appearances matter

While I acknowledge that the question of recusal is close, I have concluded that a line was crossed in this case and that the conduct in question created an appearance of impropriety. I have also concluded that communication of the type in this case wherein a trial judge has an off-the-record ex parte discussion with an individual whose advice could have potential impact on the trial court’s decision-making process would, in most cases, create an appearance of impropriety.

(Mike Frisch)

September 20, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judge Should Have Recused But Error Harmless

The South Dakota Supreme Court affirmed a fourth-degree rape conviction

Approximately one month before [defendant] Shelton’s trial, his attorney moved to withdraw from the case. Shelton’s former cellmate came forward with information that Shelton confessed to him that Shelton had committed the rape. The attorney represented both Shelton and the former cellmate. Due to the conflict, the court allowed the attorney to withdraw and appointed a new attorney to represent Shelton. A week later, the circuit judge overseeing the matter sent a letter to the new attorney disclosing that the judge’s ex-wife is a partner in the new attorney’s law firm and that this was a potential basis for disqualification. The judge stated:

You are now advised that I will disqualify myself from this proceeding, and another judge will be assigned to hear this case, unless you and your client agree in writing that I should not be disqualified, and that I may continue to preside over this action.


A written agreement waiving disqualification was not provided and there was no further mention of the issue in the record. Nevertheless, the same judge continued to preside over the trial.

The court concluded that the judge erred in failing to recuse but

In upholding the conviction in this case, there is little risk of injustice to the parties. Initially, Shelton does not argue that the judge was biased or prejudiced against him in any way. Instead, Shelton erroneously argues that the judge lacked jurisdiction to proceed in the case, and as a result, the judgment of conviction was void. A thorough review of the record does not reveal any evidence of partiality. Further, it is not alleged, and it does not appear from the record, that the judge’s ex-wife had any involvement in the matter. And while Shelton argues that in his experience, “an overwhelming majority of divorce cases have at least some level of animosity[,]” none was shown here...

There is also little risk that denial of relief would produce injustice in other cases. Unlike the situation presented in Liljeberg, where the judge failed to disclose the potential basis for disqualification to the parties, the judge in this case upheld his ethical obligations under the Code of Judicial Conduct and made a full disclosure. The judge sent a letter to Shelton’s counsel informing him of the potential basis for disqualification and filed the letter in the record. Although the judge erred by continuing to preside over the matter absent a waiver, Shelton compounded this error by failing to raise it.

The court held that the error was harmless. (Mike Frisch)

September 20, 2017 in Clients, Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, September 15, 2017

Our Town

The New York Court of Appeals has suspended without pay a town court justice recently charged by the United States Attorney for the Southern District of New York 

Joon H. Kim, the Acting United States Attorney for the Southern District of New York, and William F. Sweeney Jr., the Assistant Director-in-Charge of the New York Field Office of the Federal Bureau of Investigation (“FBI”), announced today that LURLYN A. WINCHESTER, a Justice for the Town Court of Monroe, was charged with making false statements in connection with an application for a loan to purchase a residence in Monroe which satisfied the residency requirement of her position as Town Justice. She was also charged with obstruction of justice for providing law enforcement officers, who questioned her about her mortgage loan, with false documents, including fabricated rent payment receipts. WINCHESTER was arrested this morning at her home in New City, New York, and was presented before U.S. Magistrate Judge Lisa Margaret Smith in White Plains federal court this morning.

Acting Manhattan U.S. Attorney Joon H. Kim said: “As alleged, Lurlyn Winchester, a municipal court judge for the Town of Monroe, lied and provided fake documents to secure a mortgage on a Monroe condominium in an attempt to falsely satisfy the judicial residency requirement. We should expect and demand integrity in our government. This Office is committed to pursuing corruption in all forms and in all three branches of government, including the judiciary. I thank our partners at the FBI for their work in exposing this fraud and holding accountable our public officials.”

FBI Assistant Director-in-Charge William F. Sweeney Jr. stated: “As alleged, Lurlyn Winchester falsely represented her primary residence in order to fulfill requirements for her position as justice for the Town of Monroe. Winchester, who claimed she had relocated her primary residence from New City to Monroe, allegedly remained in her New City home, despite representations to the contrary. She allegedly provided false information to her mortgage company, claiming her New City property was being rented to a prospective tenant, and later lied to federal agents who interviewed her about her claims. If anyone should have respect for the rule of law, it should most certainly be those entrusted to uphold it. Many thanks to our partners in this investigation as we continue to reinforce our commitment to uncover illegal activity on behalf of public officials at every level.”

According to the allegations contained in the Complaint[1] unsealed today:

In or about 1997, LURLYN A. WINCHESTER, the defendant, and her husband purchased a home in New City, New York (the “New City Home”), which they continue to own. On or about October 6, 2013, WINCHESTER, an attorney practicing in New City, was nominated to be the democratic candidate for Town of Monroe Justice. At that time, she provided an address in Monroe, New York (“Monroe Residence-1”), as her residence, and on or about October 7, 2013, she registered to vote in Monroe, New York. WINCHESTER was then elected Town of Monroe Justice on or about November 5, 2013.

On or about October 14, 2014, Hudson United Mortgage, LLC (“Hudson United”), a mortgage broker located in New City, New York, received a letter from WINCHESTER indicating that she had been elected Town Justice for the Town of Monroe and that she was relocating to Monroe in order to comply with a residency requirement attached to that position. In or about December 2014, the defendant and her husband submitted an application for a residential loan to Hudson United, and indicated that the loan was to be used to purchase a condominium located in Monroe, New York (“Monroe Residence-2”). On both the loan application and a disclosure notice, signed by the defendant and her husband, they asserted that Monroe Residence-2 would be their primary residence.

WINCHESTER also represented to Hudson United that she and her husband were going to rent out their New City Home to a tenant. Specifically, on or about February 6, 2015, Hudson United received a letter from the defendant in which she identified the New City Home as her “current primary residence” and she stated that she and her husband intended to rent the New City Home and they “already had a prospective tenant” who was “anxiously awaiting to take occupancy of the residence.”

In or about March 2015, WINCHESTER learned that the ultimate loan issuer, Plaza Home Mortgage Inc. (“Plaza”), was going to decline to issue the loan due to insufficient income. In response, WINCHESTER again represented that she and her husband were going to rent out the New City Home and indicated they would have rental income of $4,500 a month. Plaza requested copies of a fully executed 12-month lease and a canceled check for a security deposit. WINCHESTER provided a copy of a lease agreement, signed by the defendant, her husband, and a tenant (the “Tenant”). She also submitted a copy of two $4,500 checks for the security deposit and one month’s rent, made out to the defendant, and drawn on the Tenant’s bank account, as well as other documents reflecting that the checks were deposited into WINCHESTER’s bank account. In or about April 2015, Plaza issued the loan.

Contrary to the defendant’s representations, WINCHESTER did not intend to and did not lease the New City Home to Tenant in 2015; instead she fabricated a 2015 lease and caused checks to be issued and deposited to make it falsely appear that Tenant had paid rent and a security deposit. Tenant did not sign a lease in March 2015, never moved in to the New City Home, and WINCHESTER provided the $9,000 that covered the two $4,500 checks purportedly provided by Tenant.

Further, Monroe Residence-2 was not intended to be, and has not been, the primary residence of the defendant and her husband. Interviews with neighbors, cellphone records, and credit card records indicate that WINCHESTER did not move to Monroe. Finally, in a statement to agents, WINCHESTER admitted that: she resided at the New City Home, she had informed Hudson United that she would be renting the New City Home, she submitted rental checks and other documents relating to renting the New City Home, and the Tenant never moved into the New City Home.

With respect to the obstruction charge, during an interview with members of the FBI Task Force relating to WINCHESTER’s statements and submissions in connection with her loan, she provided them with, among other things, purported receipts for rent payments she claimed to have received from the Tenant for rent of the New City Home. The Tenant, however, indicated that he did not know anything about the receipts and never gave WINCHESTER the cash payments supposedly memorialized in them.

* * *

WINCHESTER, 58, of New City, New York, is charged with one count of making false statements to a mortgage lending business, which carries a maximum sentence of 30 years in prison, as well as falsifying records in a federal investigation, with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of a federal department or agency, which carries a maximum sentence of 20 years in prison. The maximum potential sentences in this case are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant will be determined by the judge.

Mr. Kim praised the outstanding investigative work of the FBI. He also thanked the Orange County Sheriff’s Office and the Orange County District Attorney’s Office for their assistance.

The case is being prosecuted by the Office’s White Plains Division. Assistant U.S. Attorney Margery B. Feinzig is in charge of the prosecution.

The charges contained in the Complaint are merely accusations, and the defendant is presumed innocent unless and until proven guilty.

(Mike Frisch)

September 15, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, September 11, 2017

Friending Judges

From sunEthics

Law Firm sued a former client (USAA) for breach of contract and fraud.  Law Firm accused one of USAA’s executives of witness tampering, and suggested that he is a potential witness and potential defendant.  USAA hired an ex-judge (Lawyer) to represent the executive.  Law Firm moved to disqualify the trial judge (Judge) on the ground that Lawyer is a “friend” on Judge’s personal Facebook page.  Law Firm’s client claimed to have a well-founded fear of not getting a fair trial.  Judge denied the disqualification motion.

The Third DCA denied Law Firm’s petition for writ of prohibition.  The issue was “whether a reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit.”  Generally, allegations of mere friendship are insufficient grounds for judicial disqualification.  However, in Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), the court ruled that a judge’s disqualification was required when the judge was a Facebook “friend” with the prosecutor.  The Judicial Ethics Advisory Committee has also opined that a judge should not play an active role in accepting or rejecting potential social media “friends.”  JEAC Op. 2009-20; see also JECA Op. 2010-06.  More recently, the Domville case was questioned by the Fifth DCA in Chace v. Loisel, 170 So.3d 802 (Fla. 5th DCA 2014).

  In the instant case, the Third DCA concluded:  “We agree with the Fifth District that ‘[a] Facebook friendship does not necessarily signify the existence of a close relationship.’”  The court gave 3 reasons for its decision.

 First, some people have numerous Facebook “friends,” perhaps even thousands.  See Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012) (declining to require new trial when juror was Facebook “friend” with victim’s family member).  Second, people often cannot recall every person whom they have accepted as a Facebook “friend” or who has accepted them as such.  (Case citations omitted.)  Third, “many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions.”

The court noted that, while some Facebook “friends” may be “friends in the classic sense” and thus have a personal relationship of affection and loyalty, many are not.  “An assumption that all  Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”  Accordingly, “we hold that the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’”

  The court acknowledged conflict with Domville.   Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla. 3d DCA, No. 3D17-1421, 8/23/2017), 2017 WL 3611661.

(Mike Frisch)

September 11, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Dismissal Of Official Misconduct Charges Against Judge Affirmed

An opinion of the New Jersey Appellate Division

These appeals require us to consider the inherent duties of a judge of the Superior Court of New Jersey, whether those duties include an obligation to take whatever steps necessary at any time to "enforce an arrest warrant," and if such a duty exists, what must a judge do to perform, and not refrain from performing, that duty. A Somerset County grand jury indicted Carlia M. Brady, a judge assigned to the Middlesex Vicinage, charging her with second-degree official misconduct, N.J.S.A. 2C:30-2b (count one); and two counts of third-degree hindering the apprehension or prosecution of Jason Prontnicki, N.J.S.A. 2C:29-3a(1) and a(2) (counts two and three). The Law Division judge granted defendant's motion to dismiss count one of the indictment but denied the motion as to counts two and three. The judge subsequently denied motions for reconsideration filed by defendant and the State of New Jersey.

We granted the State's motion for leave to appeal (A-0483- 16), as well as defendant's motion for leave to appeal (A-0484-16), and consolidated both appeals to issue a single opinion. We now affirm.

The court allows two charges to stand but as to the duty to enforce an arrest warrant

The State's appeal presents issues of significant importance beyond this case. We tread cautiously, with an express desire that our decision be limited only to the facts presented by this appeal and the arguments made by the State...

Our conclusion is not a criticism of the prosecutor's presentation. He attempted in good faith and in substantial detail to synthesize the law. However, the prosecutor demurred in telling the grand jury a duty existed. That hesitation reflects the exquisitely difficult task of trying to define the duty in the first instance, and what actions a judge must take to perform that duty, the avoidance of which could result in criminal culpability.

The prosecutor's quandary demonstrates why we are required to do more in this opinion. Avoiding the question of whether it is the duty of a Superior Court judge to "enforce an arrest warrant," or face conviction for a second-degree crime if he or she refrains from performing that "duty," does a disservice to this defendant, other judges and the public-at-large. We will not avoid deciding the merits of the State's case, because the issue will only arise again should the State simply present the same evidence with more definitive instructions to a new grand jury.

Further, the Judicial Canons did not create a basis for criminal liability. reported on the case.

A Superior Court judge granted a motion Friday to dismiss an official misconduct indictment against Middlesex County Judge Carlia M. Brady.

Brady was indicted in May on second-degree official misconduct as part of a three-count indictment for allegedly harboring her fugitive boyfriend Jason Prontnicki for approximately an hour on June 11, 2013, in her home before both were arrested there by police. Brady's lawyer, Fairfield-based attorney Tim Smith, said he is continuing to work on getting the remaining indictments dismissed.

At that time, Prontnicki was wanted in the armed robbery of an Old Bridge pharmacy on April 29, 2013.

In a complaint filed against Brady, the prosecution charged her of "never making any attempt to contact law enforcement" during that hour her and Prontnicki were in her home.

Somerset County Superior Court Judge Julie M. Marino, now serving in Hunterdon County, ruled that Brady had "no specific, clearly spelled out duty to communicate within a certain length of time" with authorities and that the state "relied upon the broad duty of integrity and avoiding impropriety to argue that any contact from Prontnicki required defendant to alert authorities."

Smith had argued that Brady, 43, was acting as a private citizen and had no legal obligation to tell police that Prontnicki, 43, was en route and later present in her residence. Brady was facing a sentence of five to 10 years in state prison.

"We are obviously elated with this decision as it removes from the equation the only charge that exposed Judge Brady to presumptive jail time," Smith said Friday. "This type of rebuke to the misuse of the official misconduct statute in this state is long overdue and hopefully justice, on a broader scale, will result from it.

"As recognized by the CATO Institute, when, as here, prosecutors effectively write their own criminal codes, it is representative of the antithesis of the rule of law. Thankfully, this type of abuse of governmental power was rejected today. We are extremely anxious to move to defeat the remaining counts to the indictment as they are equally defective."

Brady, who had been sworn in as a civil court judge just two months before her 2013 arrest, has been suspended without pay from her $165,000-a-year-job since shortly after her arrest. Smith said her ultimate goal is to be reinstated as a judge.

Assistant prosecutor W. Brian Stack declined to comment.

In the indictment, Brady was charged with second-degree official misconduct for failing to notify police of Prontnicki's intended appearance or presence at her residence.

Brady was also charged with third-degree hindering by harboring or concealing Prontnicki within her home and third-degree hindering by offering to provide or aid Jason Prontnicki with money, transportation or clothing to assist him in avoiding arrest.

Marino cited a state Supreme Court ruling that stated "it is the duty of law enforcement agencies acting under the executive branch, not the judicial branch, to enforce arrest warrants."

The judge wrote that the defendant "didn't perform any of the supposed inherit duties suggested by the state on a regular basis (and) did not have a manual or handbook which could be relied upon." Brady, the judge said, was "acting as a private citizen."

Stack had argued that Brady knew Prontnicki was on his way to her home that day and it was her duty as a judge to notify police. It was a matter of "common sense," Stack said. He said Brady chose not to alert police that Prontnicki was en route to her home for "personal gain."

Stack also said text messages between the pair showed Brady told Prontnicki that they can't be seen together in her home and that she had a responsibility to turn him in to authorities.

Marino acknowledged those text messages in her ruling, but still said "the state has failed to satisfy its burden as to the duty and breach of duty element to sustain the present indictment for official misconduct."

The investigation was initially conducted by the Woodbridge Township Police Department, but transferred to the Somerset County Prosecutor's Office for further investigation and prosecution to avoid a conflict of interest, authorities previously stated.

Dave Hutchinson may be reached at Follow him on Twitter @DHutch_SL. Find on Facebook. also reported on the boyfriend's sentence. (Mike Frisch)

September 11, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 7, 2017

Reconsideration Of Sanction Denied

A  former judge's motion for reconsideration of sanctions has been denied by the Maine Supreme Judicial Court

First, [the former judge] contends that the two-year suspension from the practice of  law and $5,000 forfeiture that we ordered as sanctions for his numerous  violations of the Code of Judicial Conduct violated his rights to equal protection  and due process of law because, he argues, the sanctions were more severe than  the sanctions recommended by the Committee—a $10,000 fine and a two-year suspension from the practice of law, with the suspension from practice to take  effect only if Nadeau again sought election as a probate judge.

Second, Nadeau contends that the sanctions imposed on him may  violate the Privileges and Immunities Clause because, Nadeau alleges, many  clients desirous of his services will be deprived of his services if the two-year  suspension from the practice of law remains in effect. Nadeau further asserts  that “[t]here has been no finding that [he] has engaged in any harm to any  private client in his 36 years as an attorney, and no evidence that he would ever  commit such harm in the future.”

As to issue one

Nadeau’s claim that he was not on notice about the possibility that  his license to practice law would be suspended is undermined by our opinion  in In re Cox, 658 A.2d 1056 (Me. 1995)—a case specifically addressed during the February oral argument. Cox, like Nadeau, was no longer a judge when we  heard his judicial discipline action. Id. at 1057. Cox, like Nadeau, argued that  the action was moot because no sanctions could be imposed for violations of  the Code of Judicial Conduct on a person who was no longer a judge. Id. As we  pointed out to Nadeau at oral argument, we rejected Cox’s mootness argument,  and, noting that Cox had “returned to the private practice of law,” id., we  ordered that Cox be disbarred from the practice of law as the sanction for his  violations of the Code of Judicial Conduct, id. at 1058. Our decision in Cox placed  Nadeau on notice that his license to practice law could be suspended, and that  exposure was made even more clear by the colloquy at oral argument...

Nadeau’s analogy to criminal proceedings, where a State’s  sentencing recommendation is sometimes a cap, is inapt because of the  different nature of this proceeding. It must also be noted that the Committee’s  sanction recommendation was made as part of its prosecution of its 2016 filing,  Jud-16-1, before presentation of its additional report of improper personal  solicitation of campaign contributions asserted in Jud-17-1 and addressed in  our opinion.

As to the "no harm" contention

The sanctions we impose here rest on our consideration of all of  Nadeau’s history of professional misconduct, as both an attorney and a judge.  As we stated in the opinion that is the subject of this motion,

This is now the fourth time that Judge Nadeau has appeared  before us for ethical violations, and the third time for conduct that  occurred while serving in a judicial capacity. [Citing the 2016,  2007, and 2006 opinions referenced above.] Here, his actions were  often carried out in an intemperate and vindictive fashion against  former colleagues of his law practice and their associates.  Attorneys’ reputations were harmed, and litigants before him were  pressured to support his efforts to increase court resources and his  compensation. Judge Nadeau has not fully acknowledged the intemperate nature of his decisions.

We have already acknowledged that “prior corrective efforts  have not been effective in dissuading [Judge Nadeau] from  engaging in intemperate conduct prohibited by the Canons.”

 In re Nadeau, 2016 ME 116, ¶ 49, 144 A.3d 1161. This time,  therefore, more severe sanctions are warranted. In re Nadeau, 2017 ME 121, ¶¶ 62-63, --- A.3d ---.

With this history, Nadeau was certainly on notice regarding the  sanctions he could face; he has not been denied due process in this proceeding; and he has failed to demonstrate that he has been sanctioned more harshly than others similarly situated, having identified no Maine attorney with a history of  professional misconduct violations as extensive as his own. Nadeau’s motion  for reconsideration is therefore denied.

(Mike Frisch)

September 7, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 21, 2017

Hold The Duct Tape

The New York Commission on Judicial Conduct has accepted the resignation of a town court justice who faced charges that he

Judge LaPiana was apprised by the Commission in June 2017 that it was investigating several Complaints alleging that, over a two-year period beginning in May 2015,he:

A. failed to follow the law when he engaged in extensive ex parte communication with a defendant at arraignment concerning the facts of the case and subsequently presided over a non-jury trial in the matter;

B. failed to follow the law when he directed a defendant to enter a local business to pay restitution in violation of an order of protection; and

C. repeatedly exhibited discourtesy and other inappropriate demeanor, including directing an officer to procure duct tape and thereafter repeatedly threatening to tape shut a defendant's mouth.

The justice has agreed not to seek future judicial office. (Mike Frisch) 

August 21, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, August 17, 2017

Illegal Incarceration Gets Judge Suspended

The Mississippi Supreme Court suspended a judge who locked up a defendant who had already served his sentence.

Lee County Justice Court Judge John H. Sheffield ordered James Harper to serve six months in a work center for a conviction Harper already had appealed to a higher court, and for which Harper already had satisfied his sentence. Because under the facts of this case, Judge Sheffield’s conduct was not due to an innocent mistake, it amounts to judicial misconduct. So we impose a public reprimand, a 120-day suspension without pay, and a $3,000 fine, and assess all costs of the proceedings to Judge Sheffield.

The case involved a DUI conviction that had been appealed and the sentence completed when 

On April 9, 2013, Harper again was arrested for DUI in Lee County. At that point he was told he could not post bond until he resolved a matter with Judge Sheffield. The next day, Harper appeared before Judge Sheffield, who accused Harper of failing to pay the fines imposed for the 1996 justice-court convictions.

Despite Harper’s protestation that he had appealed to county court, lost, and paid his fines—and despite the fact that Judge Sheffield had with him the justice-court case files for Harper’s earlier convictions, both of which contained Harper’s notice of appeal and the county-court notification—Judge Sheffield sentenced Harper to serve six months at the Lee County Work Center for the DUI conviction. Harper served four months in the work center before being released due to an infection requiring hospitalization.

The court affirmed the Commission on Judicial Conduct's misconduct findings and noted that the judge had shown "anything but competence." 

On sanction, the court noted the judge's positive reputation but also prior discipline.


Judge Sheffield’s misconduct caused Harper to serve four months in the Lee County Work Center. He was released when a serious infection required his hospitalization. We have recognized that illegal incarceration is “one of the most severe forms of harm.”

...Judge Sheffield’s failure to take personal responsibility for his error constitutes an aggravating factor, and we find no mitigating factors for his misconduct. In sum, this Court finds that the Commission’s recommended sanction is an appropriate one. We find this case similar to Littlejohn. The severity of the harm to Harper requires suspension from office.

(Mike Frisch)

August 17, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, August 10, 2017

Ethics Of Shower Gifts And Halls Of Fame

An opinion of the Connecticut Committee on Judicial Ethics addresses an important issue

A lawyer in a highly contested case is pregnant and members of the bar are hosting a baby shower in her honor. (1) May the Judicial Official, presiding over the contested case, attend the baby shower and give a gift? (2) May court staff, including the Judicial Official’s courtroom clerk and court reporter/monitor, attend the shower and give a gift?

And opines

...the Committee agreed that the rules for receipt of a gift by a Judicial Official should serve as a guide for gifts that a Judicial Official can give. The foregoing opinions generally indicate that when a person is before a Judicial Official, the Judicial Official may not accept a gift from that individual.

Based upon the foregoing, the Judicial Official was advised that he or she should not provide a gift to the attorney and should not attend the shower. The Judicial Official was further advised that, pursuant to Rule 2.12, the courtroom clerk and court reporter/monitor, assigned to work under his or her supervision on the contested case involving the pregnant attorney, should not attend or give a gift if the case is still pending while the shower takes place, but that other staff may attend. One Committee member noted that in some courthouses, judges have a different monitor in the courtroom every week or even daily. If this is the case in the Judicial Official’s situation, he or she should advise the monitor/reporter supervisor.

An opinion in a recent unrelated matter concludes

The Connecticut Women’s Hall of Fame has asked a Judicial Official to be an Honoree at its annual induction ceremony. Three individuals will be inducted and approximately 10 individuals will be recognized as Honorees. While the induction ceremony is a fundraiser, the program is designed to recognize the contributions of the women who are Inductees and Honorees. The Judicial Official has inquired if she may participate as an Honoree and, if so, if it is permissible for the Judicial Official to participate in a media interview regarding her experience that qualifies her to be an Honoree...

Based upon the facts provided, including that the event at which the Judicial Official would be recognized is designed for “Heroic Women: Honoring those who Protect and Serve”, and the major focus is on the three Inductees for their military and law enforcement service, the Committee unanimously determined that the event is not one that concerns the law, the legal system or the administration of justice within the meaning of Rule 3.7. The Committee noted that the Judicial Official could be an Honoree at a future program, based upon her service as a prosecutor and Judicial Official, if one of the major program themes concerns the law, the legal system or the administration of justice.

(Mike Frisch)

August 10, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, August 9, 2017

Khalid Shaikh Mohammed Judge Removed

A decision from the United States Court of Appeals for the District of Columbia Circuit granted the recusal of a judge in the case arising from the September 11 attacks

 Petitioner Khalid Shaikh Mohammad is a detainee at Guantanamo Bay, Cuba, who is currently being tried by military commission on charges of planning and  bringing about the attacks of September 11, 2001. He asks this Court to issue a writ of mandamus directing that the Hon. Scott L. Silliman of the United States Court of Military Commission Review (CMCR) recuse himself from serving as a judge in Petitioner’s case on the basis of public statements made by Judge Silliman prior to and during his service on that court. Specifically, Petitioner identifies more than a dozen statements—from press interviews, speeches, and academic writing—that he says indicate Judge Silliman is biased against him. In addition, Petitioner asks us to vacate a June 29, 2017, opinion by a panel of the CMCR that included Judge Silliman.

Recusal is required in light of the judge's expressed views on the case

As Petitioner explains, Judge Silliman has done just that: expressed an opinion that Petitioner is guilty of the very crimes of which he is accused. Specifically, he points to an interview that then-professor Silliman gave to The World Today in 2010, prior to his appointment to the CMCR. Pet. App. 148–50. In that interview, which concerned the trial of Guantanamo Bay detainee Ahmed Khalfan Ghailani, Silliman stated that: “We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others.” Id. at 149. Later in the interview, Silliman said that “[t]o compare Ghailani to Khalid Sheikh Mohammed, they’re two totally different types of cases. And the magnitude of what they did is very different.” Id. (emphasis added).

Those statements represent the “express[ion] [of] an opinion concerning the guilt or innocence” of Petitioner within the plain meaning of Rule 902(b)(3). While the Rule contains an exception for statements made “in the performance of duties as military judge in a previous trial of the same or a related case,” that has no application here, as Judge Silliman’s statements were not made “in the performance of duties as military judge” but before he was ever appointed to the CMCR. R.M.C. 902(b)(3). Because the Rule prescribes that a military judge who has expressed such an opinion “shall . . . disqualify himself,” R.M.C. 902(b)(3), and Judge Silliman failed to do so, Petitioner has adequately demonstrated that his “right to issuance of the writ is clear and indisputable.” Cheney, 542 U.S. at 381 (citation and internal quotation marks omitted).

The court rejected the Government's contentions that it mattered that the statements were made prior to the judicial appointment. The court further rejected the contention that the judge had not expressed his personal views concerning guilt.

Because Petitioner has satisfied all three conditions for its issuance, we grant the petition for a writ of mandamus recusing Judge Silliman and vacate the June 29, 2017, decision of the CMCR.

Judge Silliman's biography is linked here. 

Circuit Judges Rogers, Tatel and Griffith joined the per curiam opinion. (Mike Frisch)

August 9, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, August 1, 2017

Judicial Authority Invoked

Blessings from the South Carolina Advisory Committee on Standards of Judicial Conduct

A circuit court judge may give the invocation at an annual fund-raising event for a local hospital, provided that no reference to the judge’s position is made in advertising the event or on the program for the event and the judge does not engage in selling tickets or otherwise participate in the fund-raising.


We have previously found that a full-time judge could participate as a dancer in a fundraiser for a religious organization, where the judge would not personally solicit funds and the judge’s title would not be used in promotional materials. See, Op. No. 11-2013. We have also allowed a judge to participate in a fund-raiser as a volunteer in a dunk tank as long as the judge’s position was not used in promotional material and the judge was not required to solicit any funds. See Op. No. 5-2017. The factual situation presented here is similar to Opinions No. 11- 2013 and 5-2017. Thus, as long as the judge complies with the Canon prohibiting personal solicitation of funds, and does not use the prestige of judicial office in the advertising (including programs for the event) of the fund-raiser, the judge may give the invocation.

Link here. (MIke Frisch)

August 1, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, July 31, 2017

Advocacy For Intern Gets Judge Suspended

The Michigan Supreme Court rejected the proposed sanction  of removal from office and instead suspended a judge for nine months without pay for conduct involving his intern

The Judicial Tenure Commission (JTC) filed a formal complaint against 14-A District Court Judge J. Cedric Simpson, alleging three counts of judicial misconduct arising from an incident that occurred in Pittsfield Township on September 8, 2013. Around 4:22 a.m. on that date, Crystal M. Vargas, one of respondent’s interns, was involved in a motor vehicle accident near respondent’s home. Vargas immediately called respondent, and he arrived at the scene approximately 10 minutes after the accident had occurred. As the investigating officer was administering a field sobriety test, respondent identified himself to the officer as a judge, had a conversation with Vargas without the officer’s permission, and asked the officer whether Vargas needed a ride. The investigating officer administered a preliminary breath test (PBT) to Vargas, which indicated that Vargas had a breath-alcohol content (BAC) over the legal limit, and she was placed under arrest. Later breathalyzer tests also indicated that Vargas’s BAC was over the legal limit but showed a lower BAC than did the PBT. Respondent contacted the township attorney who would be handling Vargas’s case, said that Vargas was his intern, and noted that Vargas would likely be involved in one of the attorney’s upcoming mediation cases. Respondent also observed the discrepancy between the PBT and the breathalyzer results and requested a copy of the police report. Respondent later contacted the attorney to discuss defense attorneys Vargas might retain. After an investigation into respondent’s conduct, the JTC filed its formal complaint alleging that respondent had interfered with the police investigation into the accident, interfered with Vargas’s prosecution, and made misrepresentations to the JTC. The Honorable Peter Houk, the master appointed to the case, found by a preponderance of the evidence that respondent’s actions constituted judicial misconduct on all three counts.

Judge and intern

At the time relevant to this case, [the judge] was an adjunct professor at the Ann Arbor campus of Western Michigan University Cooley Law School. During the 2013 summer term, Crystal Vargas was a student in respondent’s Pretrial Skills class. In June 2013, Ms. Vargas sought an internship with respondent in the 14A District Court. Respondent accepted Ms. Vargas,and she started her internship on July 10, 2013. Within days, respondent and Ms. Vargas began communicating with each other by telephone call and text message on a frequent basis. Cellular records indicate that several thousand communications were exchanged between respondent and Ms. Vargas from July 23, 2013, to November 30, 2013. Those communications were exchanged at all times of the day and night and on weekends as well.

The court on the interference

We believe that each of these actions—individually and taken together— constitutes judicial misconduct. Respondent improperly acted as a legal advocate for Ms. Vargas and used his position as a judge to thwart the township’s criminal prosecution of his intern. And he succeeded for a time in delaying the issuance of the charges. Count 2 was proved by a preponderance of the evidence.

The court rejected a proposed finding of false testimony as both uncharged and unproven drawing a partial dissent 

Respondent lied under oath on at least two occasions. I respectfully believe that the majority errs by failing to give weight to this misconduct, largely because the recommendation of the Judicial Tenure Commission (JTC) to this Court did not specifically refer to the lies that nonetheless appear clearly in the record. The majority’s implicit conclusion-- that this Court is constrained from holding a judge accountable in disciplinary proceedings for misconduct appearing in the record but not specifically identified in the JTC’s recommendation-- is inconsistent with our caselaw. Such an understanding of the relationship between this Court and the JTC will inevitably weaken our ability to monitor, and to sanction when necessary, the professional behavior of Michigan judges. Although I agree with the majority that respondent did commit misconduct and therefore concur with its decision to impose some sanction-- indeed a considerable sanction-- I would consider additional aspects of respondent’s misconduct in setting the sanction...

I would first recognize and assess respondent’s on-the-record lies in his sworn testimony before the master when he denied intending to interfere with the police investigation or subsequent prosecution of his intern. I would then treat the lie in respondent’s answer-- a lie that this Court unanimously recognizes-- without regard to whether it was verified. Regardless of this, respondent’s lie constituted an effort at frustrating this Court in carrying out its constitutional duty to uphold the integrity and reputation of the judiciary. I would impose a sanction that takes all of respondent’s lies into account in determining an appropriate sanction.

MLive Michigan had this report. (Mike Frisch )

July 31, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, July 28, 2017

Sibling Disqualification In Nebraska

From the web page of the Nebraska Supreme Court

The Judicial Ethics Committee has released an opinion addressing a question regarding disqualification when an attorney is related to a judge.

Question Posed: Is a district judge whose brother is county attorney for one of the counties in the judge’s judicial district disqualified in the following situations:

  1. from cases in which the deputy county attorney for the county is the attorney for the State and the judge’s brother did not appear in the case, nor sign the complaint, or participate in any way in the case;
  2. from cases in which the judge’s brother is appearing as attorney, if both parties “agree,” the judge may hear the case and such waiver can later be revoked;
  3. in reviewing affidavits for issuance of search warrants when the brother signs as notary and may have assisted the law enforcement affiant in preparation of the affidavit; and
  4. from appointing the judge’s brother as special prosecutor or guardian ad litem when the appointment is governed by a rotating list.

The Committee’s response can be viewed online at

From the linked opinion

this committee adopts the reasoning of the above-referenced committees in numerous jurisdictions and finds that in the present situation, a judge should recuse herself from all cases prosecuted by her sibling and all deputy county attorneys appointed by and supervised by him.

On waiver

this committee takes no position on that issue. However, the fact that the potential withdrawal of the waiver of disqualification may be an issue would suggest that while a waiver of disqualification may be allowed, it may not be wise as a general practice.

 Search warrants

this committee finds the judge would be disqualified.


This committee finds that the Code prohibits a judge appointing her brother as a special prosecutor or guardian ad litem.

(Mike Frisch)

July 28, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)