Sunday, September 22, 2024

Release Me

Ohio Disciplinary Counsel has charged a Dayton judge with violations of the Code of Judicial Conduct in connection with conduct surrounding the release of an incarcerated criminal defendant.

The underlying convictions "arose from an incident in which [defendant] knocked a police officer to the ground, jumped in the driver's seat of the police officer's cruiser, and drove over the officer's arm while fleeing the scene" and had been sentenced by a different judge to an indeterminate prison term of five to six years.

The defendant's mother was employed at medical practice patronized by both the sentencing judge and the Respondent.

The complaint alleges extensive ex parte communications concerning the case between Respondent and the mother.

The sentencing judge retired without having ruled on a motion for judicial release; another judge then denied the motion.

Respondent allegedly had the defendant brought to his courtroom and had an ex parte communication with him.

He then granted the release motion in open court with the parties present; he escorted the defendant out of the courthouse to meet mother and defendant's children.

The State appealed the release as unlawful; another judge learned of the conduct and had the case transferred to a different judge.

Two judges then filed the ethics complaint.

The Ohio Court of Appeals, Second District dismissed the State's appeal of the release order as moot

The State of Ohio appeals the trial court's order granting judicial release to Aaron Cox. It argues that Cox was not yet permitted to file a motion for judicial release under R.C. 2929.20(C), that the trial court failed to hold a hearing on the motion under R.C. 2929.20(D), and that the court failed to make findings under R.C. 2929.20(J). For the following reasons, the State's appeal will be dismissed as moot.

...Because Cox's judicial release has been revoked and he again is serving his prison sentence, there is no remedy that we could provide even if we were to agree  with the State that the trial court's grant of judicial release was improper.

The Dayton Daily News reported in June of this year on calls for the judge's resignation on unrelated allegations

A former Montgomery County courts employee was awarded $70,000 in a settlement for a civil rights lawsuit that alleged he was wrongfully terminated because of his disabilities after being forced to do work at a judge’s private home and law firm.

The civil suit, filed in 2020 in federal court against the Montgomery County commission and Montgomery County Common Pleas Court Judge Richard Skelton, alleged that the judge’s former judicial assistant was retaliated against after taking multiple medical leaves before being diagnosed with cancer.

(Mike Frisch)

September 22, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 19, 2024

Dismissal Of Judicial Ethics Charges Rejected

The Michigan Judicial Tenure Commission rejected a Master's dismissal of a complaint and ordered that a hearing be conducted

Thus, in this case, we reject that the Master’s strict and overly technical application of the standards under MCR 2.116(C)(10) in recommending interlocutory dismissal of this proceeding based upon a perceived lack of evidence to create a genuine issue of material fact for the public hearing. The Commission already deemed the evidence from the investigation sufficient to authorize and file FC 106. MCR 9.224(A). Evidentiary concerns regarding the video of the incident on Mackinac Island should be handled at the hearing but, again, we do not understand the video to be in genuine dispute by the parties.

Further, disciplinary counsel should not be required to present all or any of its witness testimony in affidavits pre hearing. This is particularly true in this case, where the Master has already denied disciplinary counsel’s request to consolidate this proceeding with the very closely related proceeding involving the same incident on Mackinac Island in FC 105 as to Respondent Judge Brue, thereby necessitating disciplinary counsel to call the same eleven anticipated witnesses to give the same testimony in two proceedings instead of one proceeding. The Master’s interlocutory recommendation here would have disciplinary counsel present these witnesses’ testimony for at least the third time, in affidavit format, which is simply not required as a precursor to the public hearing under subchapter 9.200, and is overly burdensome for all involved (including the witnesses). The Commission agrees with disciplinary counsel that what the Master required on dispositive motion practice “is precisely what the hearing is for.” (9/1/23 Response, p. 5.) Respondent in this case is no doubt fairly informed of the charges against her and the misconduct of which she is accused, which is all that is required. See Mikesell, 396 Mich at 532. The hearing should be conducted.

Detroit News reported on the charges

An Oakland County district court judge is accused of lying to investigators while they looked into a complaint regarding a fellow judge, according to a public complaint filed by the Michigan Judicial Tenure Commission last week.

Southfield's 46th District Court Judge Debra Nance is accused of making false statements on two occasions, in July 2020 and in September 2021. Nance was not immediately available for comment.

The investigation into Nance is connected to another complaint issued before Thanksgiving against Wayne County 36th District Court Judge Demetria Brue, who allegedly lied about being assaulted by a bike shop owner at a judicial conference in August 2019 on Mackinac Island.

Brue asked the bicycle shop for a discount because Nance had trouble operating the bicycle they rented, according to the complaint filed against Brue. Nance primarily watched as Brue spoke to the owner of the shop.

When the employees and owner denied her the discount, Brue allegedly told them she and Nance were judges and tried to reach across the cash register to take back their receipt. The receipt ripped and Brue accused the owner of assaulting her and said she was going to call the police, according to Brue's complaint.

She allegedly said something along the lines of, "Do you know what is now going to happen to you, a Caucasian man that's found guilty of striking an African American female judge?" She told the owner she was shaken and feared for her safety.

When police reviewed security camera footage, they said it appeared that Brue had been the assaulter, according to the complaint against Brue.

(Mike Frisch)

September 19, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, September 18, 2024

Enemy At The Gate[d Community]

The Florida Judicial Ethics Advisory Committee has issued an amended opinion on a judge's proposed advocacy

A judge may advocate pro se against creation of gated community adjacent to the judge’s property, which advocacy may include communicating with, meeting with, and attending public meetings involving legislative or executive staff and officials, posting signs in the judge’s yard, and wearing messaged apparel.

The judge may not: use the prestige of judicial office for personal gain, represent the interests of others or any group, participate in fundraising or partisan political activity, allow the judge’s advocacy to interfere with performance of judicial duties, or cause concern regarding the judge’s impartiality or independence. 

Issue

1.  Whether a judge may advocate on behalf of the judge to actively oppose creation of a gated community in a portion of the judge’s neighborhood by communicating with government staffers and county officials, attending and speaking at public meetings or hearings, wearing messaged apparel, and posting a sign in the judge’s yard opposing the gated community.

ANSWER:  Yes, as long as the judge proceeds purely pro se representing the judge and the judge’s interests only.

2.  Whether the judge’s non-judicial partner’s activities in opposition to the gated community are restricted by the Code of Judicial Conduct.

ANSWER:  No, as long as the partner does not appear to be acting indirectly as the judge’s representative and doing what the judge is prohibited from personally doing.

Reasoning

The judge is not planning to expound on the law, legal system or administration of justice when consulting with county staff and officials, nor when appearing at any public hearings; thus, that exception does not come into play.  The judge’s inquiry focuses on pro se activities on a matter involving the judge or the judge’s interests, which is specifically permitted by the second exception.  “Pro se” is defined as acting or appearing for oneself by Black’s Law Dictionary, 5th Edition, pg. 1099.  Thus, subject to compliance with other Code provisions, the judge would be relatively free to proceed individually to express and advocate for the judge’s personal concerns about the judge’s property and personal opposition to creation of a gated community when consulting with the county staffers or officials and while attending public meetings.

However, neither  of those Canon sections provides an exception that would permit the judge to advocate for the opposition group of half-acre homeowners that has interests and goals similar if not identical to the judge’s.  In the Commentary to Canon 5G, the distinction is made between a judge practicing law in the representation of others, which is prohibited, as opposed to proceeding pro se, i.e. self-representation, in legal matters which is permitted.  That Commentary continues by noting that “[a] judge may act for himself or herself in . . . matters involving appearances before or other dealing with legislative and other governmental bodies.”  Therefore, the judge should avoid acting or speaking on behalf of the opposition homeowner’s group, rather than proceeding purely pro se, as that likely falls outside what is permitted by the “pro se” exception to Canons 4C and 5C(1).  See JEAC Op. 2021-03.

There is nothing in Canon 4 or 5 that forbids the judge from pro se advocacy by utilizing a yard sign or wearing messaged apparel regarding the judge or the judge’s interests, as long as the sign or apparel does not violate any other provisions of the Code of Judicial Conduct.  Wearing certain messaged apparel while the judge is expressing opposition to the gated community could create the appearance that the inquiring judge was acting on behalf of the group rather than proceeding purely pro se; that would be ill-advised.  The JEAC has consistently declined to review or approve judicial campaign materials and we likewise will not review or approve anti-gated community yard signs or messaged apparel.

In any such pro se activities by the judge opposing the special taxing district and the gated community, Canon 1 requires that the judge must personally observe high standards of conduct and integrity.  In the interactions between the judge and others regarding this dispute, Canon 2A requires the judge “to respect and comply with the law” and to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  It is imperative that the judge’s position as a judge must not be injected into any aspect of the dispute, including communications with staff, county officials, or participation at any governmental meeting.  “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  Fla. Code Jud. Conduct, Canon 2B.  The Commentary to Canon 2B reminds judges not to allude to their judgeship to gain any personal advantage or deferential treatment and to avoid use of the judge’s official letterhead when conducting personal business.

Canon 5A requires judges to conduct all extra-judicial activities in a way that does not demean the judicial office, interfere with performance of judicial duties, appear to be coercive, etc.  According to the information provided, in keeping with the directives of Canon 5C(3)(b)(i), the judge has neither personally or directly participated, nor lent the prestige of the judicial office in the solicitation of funds to support the homeowners group’s opposition to the gated community.  The inquiring judge is aware of and will abide by Canon 7’s admonition to refrain from partisan political activity in seeking a resolution of this dispute.

(Mike Frisch)

September 18, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Lest Ye Be Judged

The Maine Supreme Judicial Court censured and suspended a probate judge

In March 2024, the Committee on Judicial Conduct filed a report with us alleging that Hancock County Probate Judge William B. Blaisdell IV committed three violations of the Code of Judicial Conduct. Specifically, the Committee alleged that Judge Blaisdell

(1) violated Rule 1.1 of the Code by failing to file federal and state income tax returns for the years 2020, 2021, and 2022; failing to pay court-ordered child support and attorney fees; and acting in contempt of the District Court in a family matter in which he was a party;

(2) violated Rule 2.16(A) of the Code by failing to respond to the Committee on Judicial Conduct despite repeated requests that he do so; and

(3) violated Rule 2.16(A) of the Code by acting with a lack of candor in asserting that he never received letters from the Committee.

Judge Blaisdell concedes that his conduct violated the rules, as the Committee alleged. The question before us is what sanctions to impose on Judge Blaisdell. We heard oral argument from the parties and have considered the record and the parties’ submissions. We now censure Judge Blaisdell; suspend him as a judge for a term of one year, with all but four months of the suspension suspended, provided that Judge Blaisdell satisfies the conditions set forth below; and order that he forfeit $10,000 from the salary otherwise payable to him, representing four months of salary for the period when Judge Blaisdell will not be serving as a probate judge.

Position of the parties

The Committee urges us to refer this matter to the Legislature for possible removal of Judge Blaisdell from office. Judge Blaisdell counters that we should order an entirely suspended suspension with conditions similar to those that have now been imposed upon him in a parallel bar disciplinary matter.

The court noted the problem of decreasing public confidence in the judiciary

We view Judge Blaisdell’s misconduct as egregious and deserving of significant sanction. Disobedience of a court order by anyone is serious, but contempt of a court order by a sitting judge cannot be tolerated. We cannot expect the public to have respect and confidence in our courts when a judge himself flouts court orders.

Sanction

Having all of these principles in mind, we conclude that the sanction must include public censure, which is accomplished by publication of this opinion, in the same manner as an opinion of this Court sitting as the Law Court. We also conclude that it is appropriate to impose a disciplinary suspension from judicial office for one year. We understand that the suspension of the only probate judge in Hancock County imposes a hardship on the people of that county as well as other probate courts. A partially suspended suspension would ameliorate that harm and provide a means of monitoring Judge Blaisdell’s conduct. For those reasons, we suspend all but four months of the one-year suspension, provided that Judge Blaisdell complies with the conditions imposed in his bar disciplinary matter. Finally, to emphasize the gravity of the misconduct, we order him to forfeit the amount of $10,000 from the salary otherwise payable to him. This amount represents the equivalent of four months of Judge Blaisdell’s judicial salary for the period during which he will be fully suspended from his judicial office.

(Mike Frisch)

September 18, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, September 6, 2024

Loose Lips

A former Cook County Circuit Court Judge has been charged with an ethics violation by the Illinois Administrator for comments he made when he thought he was not being live-streamed after a hearing where counsel had participated remotely

Respondent, mistakenly believing that the virtual feed of his courtroom had ended, then engaged in a conversation with the Assistant State’s Attorneys and Assistant Public Defenders physically present in his courtroom about the just concluded Myles matter, and, specifically, about Mr. Myles’s attorneys, Ms. Bonjean and Mr. Kennedy. During that conversation, Respondent, referring to Ms. Bonjean, stated: “Did you see her going nuts? Glasses off, fingers through her hair, the phone’s going all over the place. It’s insane.” Respondent further stated that Ms. Bonjean’s behavior “was entertaining” for him and inquired: “Can you imagine waking up to her every day? Oh my God.” Respondent further stated, “You know what? I couldn’t have a visual on that if you paid me. There you have it.”

During the conversation described...above, Respondent also mocked and ridiculed Attorney Sam Kennedy. When a question was raised regarding who Attorney Sam Kennedy was, Respondent stated, “That’s her [Ms. Bonjean’s] man child.”

Ms. Bonjean learned of Respondent’s comments...later in the day on January 11th. Ms. Bonjean then filed a motion to preserve the livestream recording of Respondent’s courtroom from January 11, 2022. On January 13, 2022, after Ms. Bonjean filed the motion, the presiding judge of the 5th District of the Circuit Court of Cook County, the Hon. Erica Reddick, reassigned Mr. Myles’s matter to the Hon. Carol Howard.

On January 17, 2022, in connection with the allegations above, the Judicial Inquiry Board charged Respondent in case number 22 CC 2 with conduct that was prejudicial to the administration of justice and that brought the judicial office into disrepute, in violation of the Code of Judicial Conduct, Illinois Supreme Court Rule 61, Canon 1; Rule 62, Canon 2(A), and Canon 3(A)(2), (A)(3), and (A)(9).

On January 18, 2022, the Chief Judge of the Circuit Court of Cook County placed Respondent on restrictive duties. On November 6, 2022, Respondent resigned from his position as a judge. On December 2, 2022, Illinois Courts Commission dismissed the pending case against Respondent, finding that it lacked jurisdiction to hear the matter as Respondent was no longer a sitting judge.

The disparaged attorney has had an interesting career as reflected on her web page biography

After college, Bonjean attended the Manhattan School of Music where she earned a Master’s Degree in Music in Opera Performance.

After the switch to law

Since 2014, Bonjean has successfully overturned the convictions of no fewer than thirteen individuals wrongly convicted of crimes they did not commit. Bonjean has also successfully tried or settled 1983 civil rights cases totaling over $20 million dollars.

Specifically, in 2017, Bonjean obtained the largest settlement for a civil rights case in the state of New Jersey in the case of Castellani v. City of Atlantic City, et. al., 13 CV 6667, a police brutality, malicious prosecution and Due Process case with a Monell claim. The case was settled at $3,000,000.

In 2019, a jury awarded $5.2 million to Plaintiff Stanley Wrice in the matter of Wrice v. Byrne, et. al., 14 CV 5934 after they found that he was beaten into confessing to a brutal rape by Area Two Detectives. Mr. Wrice spent 31 years in prison for a crime he didn’t commit.

Bonjean represented Bill Cosby on his appeal before the Pennslyvania Supreme Court. In June 2021, Mr. Cosby’s conviction was overturned when the Court found that Mr. Cosby’s due process rights were violated when a non-prosecution agreement with a previous prosecutor meant that Mr. Cosby should not have been charged in the first place.

Additionally, in September 2021, BLG client Armando Serrano and his co-Plaintiff Jose Montanez received a $20.5 million settlement after serving 23 years in prison for crimes they didn’t commit after being framed by a former Chicago police detective.

Respondent is charged with engaging in conduct prejudicial to the administration of justice in violation of Illinois RPC 8.4(d). (Mike Frisch)

September 6, 2024 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, September 5, 2024

Michigan Explores Racial Disparities In Judicial Discipline

The Michigan Judicial Tenure Commission has issued an Equity Report in respone to concerned expressed about racial disparities in judicial discipline

This report responds to concerns raised by the Association of Black Judges of Michigan that the Michigan Judicial Tenure Commission (JTC) grievance process results in disproportionately severe sanctions for Black judges, particularly regarding public complaints. In response, the JTC and the Michigan State Court Administrative Office (SCAO) contracted with the National Center for State Courts (NCSC) to perform an assessment of JTC grievances between 2008 and 2022. The assessment consists of a statistical review of key decision points and outcomes in the grievance process to determine if, and where in the process, disparities and/or disproportionalities exist. The contract also anticipated additional study of key decision points if statistically significant racial disparities were found. This report describes the methods, findings, and discussion from the initial assessment and recommendations for further study.

Findings

The findings presented in this report reveal two points in the grievance process that result in disparities in outcomes between Black and White judicial officers. First, grievances against Black judicial officers are significantly more likely to advance to full investigation compared to those against White judicial officers. Also, Black judicial officers are significantly more likely to receive a public outcome than White judicial officers following a full investigation. However, this disparity occurred only for judicial officers who remained in their position during the entire investigation process.

White judicial officers under full investigation are more likely to retire, resign, or to lose reelection than Black judicial officers under full investigation. According to the analysis, if White judicial officers who left office to avoid public outcomes had remained in office, there would be no significant disparities in public outcomes between Black and White judges. Understanding the decision to retire or resign when faced with a public outcome is beyond the scope of this phase of the review but will be important to investigate in the next phase.

While not a decision point in the JTC process, it is notable that there is a significant difference in the average number of grievances per judicial officer. For every Black judicial officer in Michigan, there are 6.43 grievances in the review period. For every White judicial officer, there were 5.36 grievances. Additional efforts to more comprehensively evaluate this and other decision points in the judicial grievance process could offer a more holistic understanding of judicial officers’ experiences with grievances and provide insights about practical equity interventions within the court’s purview to address.

Next steps

The association between race and disparate outcomes at certain phases of the grievance process was established in the current analysis. This phase of the analysis found one mediating factor; the inclusion of judicial officers who left office during the grievance process eliminated racial disparity at that decision point. However, there are several more as-yet unexplored variables in the grievance process that may mediate the effect between race and grievance outcomes. Further, it will be necessary to further explore why White judicial officers are more likely to leave office during the grievance process than Black judicial officers.

The decision to explore these mediating variables in a later phase of the project was purposeful. The intent of this first phase of the project was to diagnose if there were any racial disparities in outcomes at each decision point in the grievance process and, if so, where they occurred. The next phase is to investigate the factors that may contribute to the differences in outcomes.

For example, annual reports from the JTC show that most grievances received have underlying criminal and domestic relations cases. It is possible that, for a variety of reasons, there is a difference in the race of judicial officers that handle these case types. Other variables that may play a role include (but are not limited to) grievant type, reason for grievance, grievance severity, jurisdiction location type (e.g., rural or urban), judicial tenure, gender, and past grievances. Further statistical analysis will evaluate if disparities in racial groups remain when controlling for these additional variables at various points of the grievance.

When the effects of all potentially mediating variables are accounted for, the unexplained differences between White and Black judicial officers may be attributed to the effects of bias or discrimination on the part of the decision-making entity.  In order to investigate how bias and discrimination operate to affect the grievance process outcomes, additional statistical analyses should be supplemented with interviews and file reviews to explore and comprehensively identify all potential reasons for the disparities. Even if there are no indications of explicit bias among JTC decision-makers, it is possible that implicit biases contribute to observed racial disparities in decision outcomes.

Implicit biases arise and are expressed contextually; they are influenced by systemic, cultural, institutional, organizational, and interpersonal factors and are more likely to manifest in certain situations or under certain conditions. Interventions that target these conditions in the decision-making environment and/or the decision-making process can be productive approaches to addressing concerns about implicit bias. Interviews and in-depth file review can provide the information needed to identify processes or practices that could be targeted for this kind of intervention.

Additional research can also help to understand the disparity in judicial officers’ choice to leave office during a full investigation when facing likely public outcomes. Communications with the JTC on the grievance process indicate that at any time following the decision to move to a full investigation—generally the point at which the judicial officer is made aware of the grievance—the judicial officer can offer to retire or resign. The communication exchange between the JTC and the judicial officer about this option to negotiate an agreement to retire or resign merits further study to identify factors contributing to the observed disparity at this decision point.

For example, in other sectors, research has documented that women and people of color are less likely to negotiate and, when they do, often face penalties. Moreover, structural and institutional factors, such as labor-market discrimination, may contribute to the decision whether to resign prior to the conclusion of an investigation.  Interviews with these judicial officers in the proposed next phase of study will provide insight into the options they believed were realistically available to them when they were faced with a likely public outcome stemming from the JTC’s investigation. This additional research to understand the factors contributing to the observed disparity at this decision point will help determine whether procedural improvements could be implemented in the grievance process to promote equity.

In summary, these analyses identified three points in the process where racial disparity occur and therefore need more in-depth analyses: number of grievances filed per judicial officer, grievances proceeding to full investigation, and factors influencing a judicial officer’s likelihood of remaining in or leaving their position when facing a likely public outcome. This further investigation can be accomplished using a variety of research methods to best understand the sources of disparity. Specifically, advanced statistical techniques can be used to examine factors such as grievant type, reason for grievance, jurisdiction location type (e.g., rural or urban), judicial tenure, gender, and number of past grievances.

(Mike Frisch)

September 5, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, August 27, 2024

Rebel Without A Job

A non-attorney town court justice should be removed from office, according to the New York Commission on Judicial Conduct.

He has been suspended since March 2023 for failure to complete required training.

Among the several allegations

Beginning in or around 2005 and continuing through in or about March 2023, respondent displayed a statue featuring a Confederate flag on his desk in his judicial office. When the door to his office was open, the Confederate flag was visible from the courtroom. When attorneys used the office to conference cases, the flag was visible to them.

On Facebook

On or about March 21, 2012, respondent posted to his Facebook page a meme entitled “AMERICAN PRESIDENTS IN UNIFORM,” which depicted former President Clinton in a High School band uniform and former President Obama wearing a turban.

On or about June 13, 2012, respondent posted to his Facebook page a meme featuring a Black man whose underwear was visible above sagging jeans accompanying the text, “Did you know that sagging pants originated in jail, and the inmates would purposely sag their pants as a sign that they were ‘available’ to other inmates for sex.”

On or about September 20, 2012, respondent shared to his Facebook page a post in support of then-presidential candidate Mitt Romney.

On or about October 1, 2012, respondent posted to his Facebook page a meme attributing the following quote to former President Barack Obama: “HEY, DON’T BE MAD. YOU’RE THE ONE WHO FELL FOR ALL MY BULLSHIT FOUR YEARS AGO.”

On or about October 12, 2012, respondent posted to his Facebook page a meme suggesting that then-Vice Presidential candidate Joseph Biden and “the Joker” – a fictional villain from the 1989 movie “Batman” – were “SEPARATED AT BIRTH.”

On or about October 12, 2012, respondent posted to his Facebook page a meme of then-Vice Presidential candidate Joseph Biden wearing clown makeup accompanied by wording which inquired what was so “DAMN FUNNY” about the “ECONOMIC CRISIS.”

On or about October 12, 2012, respondent posted to his Facebook page a meme disparaging then-Presidential candidate Barack Obama and suggesting people should vote for then-Presidential candidate Mitt Romney because he was “an adult.”

On or about October 31, 2012, respondent posted to his Facebook page a meme that stated, “THAT OBAMA SIGN IN YOUR YARD MIGHT AS WELL SAY ‘YES, I’M STUPID.’”

On or about November 16, 2012, respondent posted to his Facebook page a cartoon implying that restaurants charge an “Obamacare surcharge” to fund “FREE CONTRACEPTIVES” for women.

On or about November 17, 2012, respondent posted to his Facebook page a meme of Hillary Clinton purportedly showing her raising a glass in a toast to four dead Americans, and stating she lied to their families and to the people of the United States because she is “a coward.”

On or about November 17, 2012, respondent posted to his Facebook page a cartoon depicting President Obama as the “FOOD STAMP PRESIDENT” and suggesting food stamp recipients will “BECOME DEPENDENT” and “NEVER LEARN TO FEND FOR [THEMSELVES].”

On or about January 21, 2013, respondent posted to his Facebook page an image of a Columbia University Foreign Student Identification card depicting then-President Obama with the name “BARRY SOETORO.” Related text below the image indicated that the image had been digitally altered.

On or about March 25, 2013, and on or about May 26, 2015, respondent posted to his Facebook page a message suggesting that food stamp recipients are like “ANIMALS” who will “GROW DEPENDENT ON . . .HANDOUTS, AND . . . NEVER LEARN TO TAKE CARE OF THEMSELVES.”

On or about April 2, 2013, respondent posted to his Facebook page a meme depicting then-Vice President Joseph Biden, then-President Barack Obama, and then-Speaker of the House Nancy Pelosi in a cage accompanied by the statement, “We don’t need GUN CONTROL. We need IDIOT CONTROL.”

You get the idea.

Rebels

On or about August 26, 2017, respondent shared to his Facebook page a post stating, “Reality check: Chief Justice Taney told Lincoln any ‘state’ had a legal right to secede and return to be a ‘free and independent state’ . . i.e., an independent nation. Thus, General Robert E. Lee was in reality defending his Nation of Virginia against a murderous invasion of his country. And Lincoln was, in reality, the greatest mass murderer America has ever seen. Ain’t reality a bitch?”

On or about September 2, 2017, respondent posted to his Facebook page an image of Confederate soldiers carrying weapons and a Confederate flag that read, “35,000,000 OF US ARE THE LIVING DESCENDANTS OF BRAVE CONFEDERATE SOLDIERS AND SAILORS AND WE WILL NOT SURRENDER THEIR LEGACY TO YOUR IGNORANCE OR POLITICAL AGENDA.”

On or about September 5, 2017, respondent posted to his Facebook page an image stating, “‘I’m proud to be white’ I bet no one passes this on because they are scared of be (sic) called a racist.”

All of the above posts remained viewable as of February 7, 2024, the date of the Complaint.

Violations

In additional significant misconduct, respondent undermined the integrity of the judiciary and created at least the appearance of racial bias by displaying a statue featuring a Confederate flag on his desk in his chambers. According to New York statutes, the Battle Flag of the Confederacy is a “symbol[] of hate.” See, e.g., NY CLS Pub B §146(2), NY CLS Educ §1527-a(2) and NY CLS Gen Mun §99- x(2). It is deeply troubling that this flag was displayed on respondent’s desk in his judicial chambers for approximately 18 years until he was relieved of his judicial duties in 2023. The Confederate flag was viewable from the courtroom and by those who used respondent’s chambers to conference cases. Furthermore, respondent made public Facebook posts which also created the appearance of racial bias, including posts that praised the Confederacy. In a recent matter in which a judge created the appearance of racial bias, the Court of Appeals found removal was warranted stating, “[w]e stress that the ‘appearance of such impropriety is no less to be condemned than is the impropriety itself’ . . ..” Matter of Putorti, 40 NY3d 359, 366 (2023) (citations omitted) By displaying the Confederate flag, a divisive symbol, in his chambers and celebrating the Confederacy in his public Facebook posts, respondent created at least the appearance that he harbored racial bias which severely undermined public confidence in his integrity and impartiality.

He did not cooperate with the investigation

the Commission determines that the appropriate disposition is removal.

(Mike Frisch)

August 27, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 26, 2024

Judicial Misconduct Complaint Dismissed

The United States Court of Appeals for the Ninth Circuit (Circuit Judge Wardlaw) dismissed a complaint of judicial misconduct

In lieu of submitting a statement of the facts underlying the allegations of misconduct, the complainant submitted an editorial that appeared in the Metropolitan News-Enterprise dated May 31, 2024 (“the editorial”), describing a 2021 trial during which a district court judge found an attorney in contempt and ordered the marshal “to take [the attorney] in custody” (the “contempt proceedings”). The editorial asserts that the chief judge “fail[ed] to instigate an investigation, as a circuit’s chief judge is statutorily charged with doing, in response to a credible allegation of misconduct on the part of a judicial officer in the circuit.”

...The misconduct complaint here alleges that the chief judge was in dereliction of her duties because she failed to investigate or identify a complaint based on the 2021 contempt proceedings described in the editorial. Central to this misconduct complaint is the assumption that the chief judge received information about the 2021 contempt proceedings at some point prior to May 31, 2024, and failed to take action.

The underlying inquiry is confidential

Based on the information gathered during this inquiry, and confirmed by multiple sources, it is clear that the chief judge did not become aware of the 2021 contempt proceedings until June 26, 2024, when another circuit judge first informed her about the editorial and, later that day, sent her a copy of the editorial itself. Once the chief judge received and reviewed the editorial, she immediately began conducting an inquiry process under Judicial-Conduct Rule 5.

Basis for dismissal

To the extent complainant alleges that the chief judge failed to act on known information, the allegation is dismissed because it lacks any factual support and is conclusively refuted by the results of this inquiry.

(MIke Frisch)

August 26, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, August 22, 2024

Ankle Monitors And Underwear

The Kentucky Supreme Court approved the removal of a circuit court judge

This matter involves an appeal from a ruling of the Judicial Conduct Commission (JCC), which charged and found Judge James “Jamie” Jameson guilty of seven counts of misconduct. The JCC ordered that Judge Jameson be permanently removed from office as a circuit judge for the 42nd Judicial Circuit.

For the reasons provided herein, we hold that the JCC failed to carry its burden of proof in relation to some, but not all, of the misconduct alleged under Counts I and III and that it failed to prove all allegations of misconduct under Counts IV, V, and VI. We further hold that based on the misconduct proven under Counts I, II, III, and VII, Judge Jameson’s removal from office was appropriate, but that the JCC does not have the authority to permanently remove a judge from office.

Ankle monitoring

The Articles [of Incorporation] stated that Judge Jameson was the CCB’s incorporator, registered agent, and one of three board members. The other two board members were Don Cherry, Judge Jameson’s father-in-law and Calloway County Fiscal Court member, and Dave Berndt, a local philanthropist that Judge Jameson met at the Kentucky Opry. The mailing address for the CCB’s principal office was the Marshall County Judicial Building, the location of Judge Jameson’s primary judicial chambers.

Resulted in complaints

This brings us to the JCC proceedings now before us. On June 21, 2021, a disgruntled participant in the [Community Corections Board]’s ankle monitoring program filed a judicial complaint against Judge Jameson.5 On October 15, 2021, the JCC held an informal hearing with Judge Jameson pursuant to Supreme Court Rule (SCR) 4.170(2). Judge Jameson prepared a written statement for that informal hearing that addressed the judicial complaint and discussed, generally, his involvement with the CCB and the GPS program. A week after the informal hearing a second JCC complaint was filed by a different participant in the ankle monitoring program. After several months of further investigation, the JCC issued a notice of formal proceedings and charges and an amended notice of proceedings and charges on June 13, 2022, and July 21, 2022, respectively. Both the notice and the amended notice alleged the same four counts of misconduct related to the CCB, the Re-Life project, the ankle monitoring program, Judge Jameson’s courtroom conduct, acts of retaliation, and the solicitation of campaign contributions.

Affirmed findings

we hold that the JCC’s finding that Judge Jameson created the 42nd Circuit’s CCB for an improper purpose was supported by clear and convincing evidence.

More than theory

Moving away from theoretical and into what actually occurred, Judge Jameson was the CCB’s incorporator, was one of its three board members, and the CCB operated out of his judicial chambers. Based on his own statements to the fiscal courts, he clearly had an interest in having the CCB run the ankle monitoring program and wanted Track Group to be the ankle monitor services provider. Consequently, going before the fiscal courts in his capacity as a circuit court judge was inappropriate as he remained prohibited under Rule 3.2, Comment [2] from “using the prestige of office to advance [his] or others’ interests” and from “engaging in extrajudicial activities that would appear to a reasonable person to undermine [his] independence, integrity, or impartiality.” We therefore hold that the JCC’s finding that his appearances before the fiscal courts were unethical was supported by clear and convincing evidence.

Bidding

It was undisputed that no other potential bidders were permitted to suggest specifications regarding the language of the RFP, nor were they able to review and edit the RFP prior to its issuance. Indeed, a representative from Ensite, one of the providers that had been providing ankle monitoring services to defendants, contacted Judge Jameson on March 4, 2019, prior to either of his fiscal court appearances, and expressed Ensite’s interest in continuing its ankle monitoring services for the counties and wanted to discuss “what the county might need to be included in a contract.”

...we agree with the JCC’s conclusion that Judge Jameson’s unethically interfered with a public bid. However, we disagree with the JCC’s conclusion that his conduct constituted “bid rigging” as that term is defined by the Kentucky Model Procurement Code.

Imposing ankle monitoring

it was undisputed that as a circuit court judge, Judge Jameson had the responsibility of deciding whether a defendant should be released on bond and whether a condition of that bond should include participation in GPS monitoring. Once he made that ruling, he would require qualifying defendants to enter into an agreement to pay the CCB, of which Judge Jameson was the president, incorporator, and one third of the board, for the privilege of using the ankle monitor. The JCC also presented evidence that, despite Judge Jameson presiding over cases where he ordered defendants to pay the CCB, he signed checks on behalf on the CCB that were distributed to, for example, Pickett, the Marshall and Calloway Sheriffs Offices, the Marshall County Detention Center, Marshall County 911, the Calloway County Fiscal Court, and Track Group. Although Judge Jameson was never accused of mishandling or misusing any CCB funds, the appearance of impropriety this process created was blatant and extreme and Judge Jameson himself conceded its impropriety.

Misconduct was found in the judge pressuring an attorney to file a bar complaint against an attorney.

Finally

The JCC last alleged under Count III that Judge Jameson engaged in two acts of retaliation. The circumstances surrounding these acts of retaliation are discussed in more detail under Count VII below which we hold was supported by clear and convincing evidence. For our purposes here, the evidence clearly demonstrated that, after a rumor began spreading concerning security footage of Judge Jameson walking around the Marshall County courthouse in his underwear, he engaged in acts of retaliation against two individuals in relation to that video.

One was a radio station manager; the other was head of courthouse security

JCC’s finding that Judge Jameson engaged in two acts of retaliation was supported by clear and convincing evidence.

The video

The video, captured on February 11, 2022, at approximately 6:35 am, depicted Judge Jameson walking downstairs from his chambers to an employee entrance in a t-shirt, boxers, and socks. After a short interaction with his wife and two children at the employee entrance, he walked back up the stairs toward his office. A short time later one of the building’s janitors walked down the same flight of stairs. A rumor soon began to spread amongst courthouse employees about the judge walking around the courthouse in his underwear. This rumor eventually made its way to Marshall County Judicial Center Lead Court Security Sergeant Jeff Daniel. As head of security, one of Sergeant Daniel’s duties was to investigate unusual occurrences in the courthouse. He therefore pulled a copy of the video and brought it to the attention of his administration; it was determined that nothing criminal occurred. The rumor then spread, as rumors often do, beyond the walls of the courthouse and two open record requests were filed for access to the video. One request was filed by an individual from WPSD, a television station in Paducah, and the second was filed by WKMS, an MSU public radio station. Both of the requests were denied by AOC prior to April 11, 2022.

His conduct in response

we hold that the JCC proved by clear and convincing evidence that Judge Jameson committed the misconduct alleged under Count VII and violated Rule 1.1, Rule 1.2, and Rule 1.3.

Removal

To summarize, the evidence demonstrated by clear and convincing evidence that Judge Jameson committed numerous, intentional, and varied acts of misconduct across four counts of misconduct. Under Count I, the JCC proved that Judge Jameson created the CCB in a manner and for a purpose that did not comply with the statutory mandates surrounding community corrections programs and boards; that he, or persons under his direct supervision, developed local rules and procedures concerning the operation of a pre-trial ankle monitoring program without the approval of the Chief Justice; that he made improper appearances before two legislative bodies; that he improperly interfered with and affected the fairness of a public bidding process; that he engaged in two acts of direct solicitation of donations to the Re-Life project; and that he submitted an application for grant money on behalf of the CCB for an improper purpose.

Under Count II, the JCC proved that Judge Jameson used at least one of his KCOJ employees to perform work for the CCB; that he received direct notifications for violation alerts and on more than one occasion issued arrest warrants upon receipt of a notice of violation report from an employee of his corporation; and that, in his capacity as judge, he ordered individuals to participate in an ankle monitoring program that in turn required participants to pay his nonprofit corporation for the privilege of using the ankle monitor while he was simultaneously involved with the corporation’s finances.

Under Count III, the JCC proved that Judge Jameson violated the doctrine of separation of powers by ordering defendants to participate in an ankle monitoring program in his judicial capacity and thereafter being an integral part of monitoring those defendants, a function that is traditionally exclusive to the executive branch; that he pressured an attorney who regularly practiced before him to file a bar complaint against another attorney that regularly practiced before him; and that he engaged in two acts of retaliation.

Finally, under Count VII, the JCC proved that Judge Jameson acted in a manner that did not promote public confidence in the integrity of the judiciary, created the appearance of impropriety, and abused the prestige of his office to advance his personal interests by having a security officer reassigned from the Marshall County courthouse and by pressuring a radio station manager not to pursue a story about an embarrassing video of him.

A concurring opinion expressed concern about the misuse of the process for political purposes

Judge Jameson’s political opponent also repeatedly attacked Judge Jameson in her Facebook posts for being a horrible person and judge, giving various examples that she claimed proved he was a bully. She repeatedly referred to an incident in which she appeared before Judge Jameson as counsel for William McAlpin, regarding allegations that Judge Jameson committed misconduct in relation to exercising the judicial contempt power, as Judge Jameson was “threatening to put me on the jail line[.]” Jameson’s Exhibit 20. The civility normally present in most judicial races was noticeably lacking in her conduct.

VANMETER, C.J., CONCURRING IN PART AND DISSENTING IN PART:

I agree that the JCC sufficiently proved by clear and convincing evidence that Judge Jameson committed most of the misconduct alleged against him. I also agree that removal is an appropriate sanction. However, based upon my review of the record and my understanding of our ethical canons, I would find that the JCC met its burden with respect to two instances the majority found lacked sufficient support: (1) the solicitation of campaign “support” from attorney DeRenard and (2) instructing his judicial staff to violate the JCC subpoena.

(Mike Frisch)

August 22, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, August 21, 2024

Recusal Required

The Indiana Supreme Court has required the recusal of a judge from presiding over post-conviction proceedings based on her mandatory recusal from a like matter.

Each of the matters involve allegations of misconduct that led to the wrongful convictions of actually innocent petitioners

These four interlocutory appeals require us to decide whether a judge’s decision to recuse from a prior case disqualifies her from presiding over these cases because they all present the same concerns that led her to recuse in the prior case.

Andrew Royer was the petitioner in the previous case, and he sought post‐conviction relief to set aside his 2005 murder conviction. He alleged that “systemic” police and prosecutorial misconduct had produced an “epidemic” of wrongful convictions in Elkhart County, including his own. Shortly after Royer first made these allegations, his attorney held a press conference amplifying them through comments that the judge concluded violated the Rules of Professional Conduct. That led the judge, who is a former Elkhart County deputy prosecutor, to not only enjoin the attorney’s further public comments about the case, but also to remark that the attorney’s comments were “defamatory.”

Royer then argued, and the judge agreed, that the judge had to recuse for one of, or a combination of, two reasons. Royer said he would be calling many witnesses—law enforcement officers, deputy prosecutors, and an elected prosecutor—with whom the judge worked when she was a deputy prosecutor and some of whom remained the judge’s social acquaintances. She could not, Royer argued, be expected to remain impartial either when evaluating so many of her friends’ and former colleagues’ credibility or when evaluating Royer’s allegations of systemic police and prosecutorial misconduct that spanned the judge’s own time as a deputy prosecutor in Elkhart County. Even if that were not reason enough to recuse, Royer also argued that the judge’s characterization of his attorney’s comments as “defamatory” suggested she had pre‐judged his allegations of systemic misconduct before hearing any evidence.

Each of the appellants here petitioned for post‐conviction relief before the same judge who recused in Royer’s case. Royer’s attorney represents them too, and they allege the same sort of “systemic” misconduct that they claim has led to an “epidemic” of wrongful convictions. And like Royer, they intend to call as witnesses former law enforcement officers and prosecutors who are the judge’s former colleagues and/or current social acquaintances.

But unlike in Royer’s case, the judge declined to recuse in these cases. And as we explain below, we conclude that was a mistake. We hold that the judge is disqualified from presiding over these cases because her determination that recusal was mandatory in Royer’s case would lead an objective observer to reasonably question her impartiality in these cases, where the petitioners raised the same concerns as Royer.

The wake of the mandatory recusal

But these appeals can’t be decided on those broad propositions. What is different about these appeals—and this is critical to our holding—is that the judge already decided in Royer’s case that recusal was mandatory. So while viewing each of the petitioners’ various concerns in isolation may not warrant recusal, the judge herself already concluded that their overarching concerns about her entanglement with the evidence and her remark about their attorney’s comments do require recusal. And an objective observer who knows the judge previously concluded she had a duty to recuse could thus reasonably doubt her impartiality in these cases. That objective observer could reasonably ask: What changed since the judge decided she was required to recuse in Royer’s case? And the record does not reveal a good answer.

Oral argument linked here. (Mike Frisch)

August 21, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Facebook "Spat" Draws Judge Reprimand

Dan Trevas has a summary of a decision of the Ohio Supreme Court

The Supreme Court of Ohio has publicly reprimanded a Hamilton County Probate Court judge for making inaccurate, demeaning statements in a Facebook spat with a participant in a court case.

In a per curiam opinion, the Supreme Court reprimanded Judge Ralph Winkler for four violations of the Code of Judicial Conduct. The Court found Judge Winkler improperly authorized assistant court administrator Scott Weikel to make false statements to a news reporter, followed by his own misstatements, which he posted on Facebook in 2022 and quickly deleted.

“In this case, Winkler and Weikel – a court administrator who was under Winkler’s supervision and control – made inaccurate, inappropriate, and inflammatory statements regarding the facts of a pending case that were not supported by the record,” the Court stated.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Michael P. Donnelly, and Melody Stewart joined the per curiam opinion. Justices Patrick F. Fischer, Jennifer Brunner, and Joseph T. Deters did not participate in the case.

Handling of Guardianship Case Upsets Family Members
Judge Winkler served as a judge on the Hamilton County Municipal Court and Hamilton County Common Pleas Court before being elected the county probate court judge in 2014 and reelected in 2020. Prior to his election as probate judge, 83-year-old Mary Frances McCullough, with the aid of an attorney, applied in 2013 to appoint her attorney as her conservator. In her filing, she maintained that she was competent at the time.

The woman had three adult children, Theresa McClean, Kathleen Bosse, and John Robert “Rob” McCullough. Shortly after the probate court appointed the attorney as the conservator, McClean sought to terminate the conservatorship, arguing her mother was mentally incompetent. McClean asked the probate court to make her the guardian of her mother. A court magistrate declared the mother incompetent and appointed the attorney serving as her conservator, not her daughter, as her guardian.

In 2015, with Judge Winkler now on the bench, the attorney guardian resigned, and Judge Winkler appointed another attorney to be the guardian. In the following years, Bosse and Rob McCullough sent numerous letters and emails to the probate court accusing the guardian of misconduct and complaining about the guardianship process.

Judge Winkler learned that three websites had been anonymously created using the names of the second attorney guardian and two probate court magistrates. The contents of the sites resembled McCullough’s and his sister’s filings with the court. In March 2019, a detective with the Hamilton County Prosecutor’s Office sent McCullough a letter regarding a “threatening and harassing correspondence” McCullough had sent to a magistrate and several assistant county prosecutors. The detective’s letter directed McCullough not to have further contact with the prosecutor’s office or the magistrate.

Disputed Guardianship Goes Public
In January 2019, a news reporter contacted the probate court regarding the guardianship case. Winkler admitted he authorized Weikel to speak to the reporter on behalf of the court, and Weikel told the reporter that McCullough’s mother was removed from her home because it was a “squalid, unsafe living environment.” He also said that McCullough was not properly caring for his mother. The reporter emailed Weikel’s comments to McCullough for a response.

McCullough shared Weikel’s statements with his sister. More than a year later, the sister sent Judge Winkler a letter stating Weikel’s statements were incorrect. The letter, which included a timeline of events and references to records filed in the court, was not reviewed by Judge Winkler.

The dispute about the guardianship escalated online. The probate court maintained a Facebook page, and Judge Winkler added his name to the page when he was elected to the court. In the same month that Judge Winkler received the letter about the McCullough case, he posted an interview with one of his court magistrates, Kenneth Coes, about topics unrelated to McCullough’s case.

Two years after the interview was posted, McCullough posted comments on the Facebook page making critical comments about Coes. That night, Judge Winkler responded to McCullough’s remarks.

“Rob McCullough you’re just mad because we had to intercede and take care of your mother when you did not. You were living in your Mothers house in deplorable conditions,” Judge Winkler wrote.

The judge also posted that a “nice neighbor” called adult protective services, which led to McCullough’s mother being placed in a health care facility.

McCullough responded to Judge Winkler’s post, which led to further comments from the judge. Included in the judge’s reply was the comment that McCullough was wrong for not taking care of his mother, and “when you did make it to Court you often reeked of alcohol.” The judge added, “Don’t try to blame my court or Magistrate Coes for your shortcomings as a son.”

Board Finds Conduct Violations
Based on the Facebook comments and the statements to the media, the Ohio State Bar Association in 2023 filed a complaint with the Board of Professional Conduct, claiming Judge Winkler violated the Code of Judicial Conduct. Judge Winkler admitted to the allegations.

Judge Winkler stipulated that the statements he and Weikel made about McCullough’s mother being removed from her home were inaccurate, misleading, and unsupported by the record of the guardianship case. The woman was not removed from her home because of living conditions, but rather, the guardian moved her to an assisted living memory care unit under the belief that she would benefit from the increased structure, supervision, and activities available.

At his misconduct hearing, Judge Winkler acknowledged the photos from the McCullough home that he contended was in deplorable condition were from the time the guardian sought permission to sell the house, which was sometime after McCullough’s mother had moved into assisted living.

Judge Winkler admitted that several of his responses on Facebook were inaccurate, including his claim that a neighbor had called senior services about the elderly woman, that she was the victim of elder abuse, and that the court had to intercede to take care of her because her son failed to do so.

The board found that while Judge Winkler did not intentionally post inaccurate information, he commented without reviewing the record or refreshing his memory of the case.

Within hours of posting the messages, Judge Winkler deleted the posts and McCullough’s comments on the Facebook page.

Judge Winkler imposed a media policy in which he would not publicly comment about details of pending cases and that he would obtain signed releases from families authorizing him to talk about their cases in public or in Facebook posts.

The parties stipulated, and the board found, Judge Winkler violated four rules, including failing to act at all times in a manner that promotes public confidence in the judiciary and failing to be patient, dignified, and courteous to those the judge encounters in his official capacity.

The Court adopted the board’s recommendation that Judge Winkler receive a public reprimand, noting he made a good-faith effort to rectify the situation by removing the Facebook comments and apologizing to McCullough. The Court noted that Judge Winkler testified his conduct was out of character for him and that he would never do it again.

“He did not attempt to excuse his conduct but explained that it was motivated in part by a desire to defend Magistrate Coes from what he perceived to be Rob’s unjust attack,” the Court stated.

In addition to the reprimand, Judge Winkler was ordered to pay for the costs of the disciplinary proceedings.

2024-0488Ohio State Bar Assn. v. WinklerSlip Opinion No. 2024-Ohio-3141.

(Mike Frisch)

 

August 21, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, August 20, 2024

When A Juvenile Judge's Child Gets Arrested

A new opinion of the Florida Judicial Ethics Advisory Committee

Subject

A judge assigned to a juvenile division is not required to recuse in juvenile delinquency cases if the judge’s child was arrested or charged for a crime by the State Attorney’s Office in the county where the judge presides, but the judge must disclose such facts for a reasonable period of time.

Issue

1. Must a judge who is assigned to a juvenile delinquency division recuse from all juvenile delinquency cases in his/her division if a child of the judge has been arrested in the county where the judge presides?

ANSWER:  No.

2. Must the judge disclose the arrest of his/her child to the parties in the juvenile delinquency division in which the judge presides?

ANSWER: Yes.

3. If the judge’s child is charged with a crime by the State Attorney’s Office, must the judge recuse on all juvenile delinquency cases in the juvenile division in the county where the child was charged?

ANSWER: No.

4. May the judge serve in a division where the charges are filed if there is a reassignment of the case involving the judge’s child to another circuit?

ANSWER: Yes. 

5. Must the judge disclose to the parties in a juvenile delinquency division in which the judge presides that the judge’s child has been charged with a crime and is being prosecuted by the State Attorney’s Office?

ANSWER:  Yes.

Facts

A child of a judge who presides over a juvenile delinquency division has been arrested in the county where the judge presides.  The child has yet to be charged by the State Attorney’s Office.  The inquiring judge requests an opinion on whether the judge must recuse from serving in the juvenile delinquency division.  Further, the judge inquires as to whether the judge must disclose to the parties in the juvenile delinquency division that the judge’s child has been arrested.  Finally, if charged by the State Attorney’s Office, the judge inquires whether recusal or disclosure is necessary.  If charged, the judge will be hiring legal counsel for the child and will not be utilizing the services of the Public Defender’s Office.  

Discussion

Canon 2 of the Florida Code of Judicial Conduct provides that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities.  The Commentary to Canon 2 describes the test for appearance of impropriety as “whether the conduct would create in reasonable minds, with knowledge of all of the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”  Canon 3E(1) requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific instances listed in Section 3E(1) apply.

At the time of the issuance of this opinion, the judge’s child has been arrested, but not yet charged by the State Attorney’s Office.  This Committee addressed a similar situation in Fla. JEAC Op. 2002-05.  In that opinion, a judge in a family law division was divorced and was contemplating potential litigation concerning the judge’s children.  Suit had not yet been filed.  The Committee determined that the judge’s situation was not one where the judge’s impartiality might reasonably be questioned, and that there was no requirement for a judge to disclose a personal family matter, or for a judge to disqualify himself/herself based on the judge’s personal family matter.

The facts of the current inquiry are different in that the judge presides in the division where prosecutors would make the charging decision regarding the judge’s child’s case.  The Committee believes the judge has a duty to disclose the arrest until such time as the case is no actioned or the charges resolved, because of the perception that the judge could have an incentive to not “rock the boat” with the State Attorney’s Office in the hopes of obtaining favorable treatment on the judge’s child’s case.  Further, the judge must recuse if asked to do so.  Disclosure would not be required if the State Attorney’s Office recused itself and asked the Governor to reassign the case to another state attorney.

The judge further inquires whether recusal in juvenile delinquency cases would be required if the judge’s child was charged by the State Attorney’s Office.  A judge is not required to recuse in all cases where the judge or close family member of the judge has been a party in a suit in the division in which the judge presides.  See Fla. JEAC Op. 2016-04 (Judge not required to recuse from all Engle progeny cases assigned to the judge where a member of the judge’s family brought  an Engle progeny suit against a tobacco company within the same judicial circuit, but before a different judge, even if some lawyers representing the parties in the judge’s family member’s case appear before the judge); Fla. JEAC Op. 2015-14 (Judge not required to recuse on all foreclosure cases involving the same lawyers, lenders or assignees who were involved in the judge’s personal foreclosure case in which the judge was a defendant, unless the judge determines that the judge has a personal bias or prejudice against the lawyers, lenders or assignees); Fla. JEAC Op. 2011-17 (Judge not required to recuse when attorney appearing before a judge is the spouse of an attorney representing the judge in an unrelated civil matter where the spouses are and always have been in different firms).  The question is whether a disinterested person aware of the relevant facts would reasonably question the judge’s impartiality.

The opinion most on point with the inquiry at hand, assuming that the judge’s child is charged by the State, is Fla. JEAC Op. 2017-21.  In that opinion, the brother-in-law of a general magistrate who presided over Marchman Act cases became a respondent in a Marchman Act case before another magistrate.  The attorney who regularly appeared before the inquiring magistrate was appointed to represent the magistrate’s brother-in-law.  This Committee determined that the general magistrate was not required to recuse from presiding over Marchman Act cases or cases where the court-appointed attorney who appeared before the general magistrate represented the general magistrate’s brother-in-law in a Marchman Act case before another magistrate.  However, the Committee  concluded that if the general magistrate determined that a personal bias or prejudice existed, the magistrate should recuse from cases involving the brother-in-law’s attorney. 

The inquiring judge intends to hire legal counsel to represent the judge’s child, should the child be charged.  The judge should recuse from cases where the attorney who was hired to represent the judge’s child is appearing in a case before the judge.  See JEAC Op. 1999-13 (Judge should recuse where an attorney from the firm who represents the judge, appears before the judge, because an impermissible appearance of impropriety applies to all members of the attorney’s firm); Fla. JEAC Op. 2001-17 (Judge should be disqualified from hearing cases in which one of the parties was represented by a law firm currently representing the judge’s spouse’s law firm in a malpractice action); Fla. JEAC Op. 2005-15 (Judge must recuse when lawyer and/or members of lawyer’s firm who represented judge in civil action appears before the judge); Fla. JEAC Op. 2012-37 (Judge was required to recuse from all cases involving the attorney and firm that represented the judge, judge’s mother and brother in a personal injury suit against them.

As far as disclosure if the child has been charged, this Committee in Fla. JEAC Op. 2017-21 determined that even though recusal was not required, the magistrate had a duty to disclose facts and information relevant to the parties’ consideration of whether the magistrate should be disqualified, even if the magistrate believes there is no real basis for disqualification.  As such, if the State Attorney’s Office files formal criminal charges against the judge’s child, then disclosure is warranted, and should be for a reasonable period of time during and following the conclusion of the matter.  This Committee has previously suggested that a reasonable period of time is from several months to one year, depending upon the unique facts and circumstances of the representation.  Fla. JEAC Ops. 1986-09, 1993-19, 2001-17, 2011-17, 2012-09, 2012-37 and 2016-04.

(Mike Frisch)

August 20, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 19, 2024

Judge In Hot (Tub) Water

A judicial discipline matter has been administratively closed by the Nevada Supreme Court

This matter was docketed in this court on June 11, 2024, with the filing of a Certified Copy of Stipulation and Order of Consent to Public Censure. See Procedural Rules of the Nevada Commission on Judicial Discipline, Rule 29 (upon entry of an order of discipline pursuant to a stipulation and consent, the commission must file a certified copy of the order with the clerk of the supreme court). Because this is a consent order, the clerk of this court is directed to administratively close this matter.

It is so ORDERED.

8 News Now reported on the judge

A judge will be publicly censured and must take a course on judicial and social ethics after posting a photo of herself in a hot tub with public defenders and making comments about police.

Clark County District Court Judge Erika Ballou admitted she violated several ethics rules in an agreement and order of public censure with the Nevada Commission on Judicial Discipline filed June 11. The commission filed a formal statement of charges against Ballou earlier this year.

As the 8 News Now Investigators previously reported, some of the charges centered around social media posts, one where Ballou appeared to state that cases where defendants are not in custody should be tossed out and another in which she posed with two individuals from the Clark County Public Defender’s office in a hot tub and referred to “t***.”

The commission also referred to an Instagram post from Sept. 19, 2021, with the caption, “Life is STILL beautiful, despite the fact that Billie Eilish doesn’t start for 30 minutes and I have an 8:30 calendar tomorrow.” Ballou also posted the hashtags, “Vacatethe[Expletive]OuttaOutofCustodyCases” and “WhereInTheWorldisCarmenSanDiego.”

The commission said Ballou violated three rules requiring a judge to promote public confidence and avoid impropriety and the appearance of impropriety, to put duties of the judicial office before their personal and extrajudicial activities, and to show that they can remain impartial.

According to the order filed Tuesday, Ballou said her social media posts were intended to be private and did not influence her work. Another post from earlier this year, involving Cardi B lyrics, was not addressed.

Another count involved comments Ballou made during hearing about police. In July 2022, the Las Vegas Police Protective Association, the union representing Metro police officers, called for Ballou’s resignation as well as an ethics investigation after she made comments about police officers.

You’re the one making the decisions not to walk away from cops. You’re a Black man in America.  You know you don’t want to be nowhere where cops are,” Ballou said. “You know you don’t want to be nowhere where cops are cause I know I don’t, and I’m a middle-aged, middle-class Black woman. I don’t want to be around where the cops are because I don’t know if I’m going to walk away alive or not.”

As the 8 News Now Investigators first reported, the Nevada Supreme Court ordered Clark County District Court Chief Judge Jerry Wiese to remove Ballou from a criminal case on May 3. Ballou had not followed two previous orders from Nevada’s high court regarding the same case. The May 3 order pointed to “the district court’s failure to comply.”

In late May, Clark County District Attorney Steve Wolfson filed a petition with the court, asking a judge to remove Ballou from all criminal cases the office prosecutes. In his motion, Wolfson referred to Ballou’s behavior as “egregious,” and wrote, “The stakes are extraordinarily high for Judge Ballou since one potential outcome of this ethics complaint could be her removal from judicial office.”

In her response, Clark County District Court Judge Susan Johnson said Wolfson needed to file an affidavit laying out the facts for his request and present the document to the judge. Johnson said she was randomly assigned the petition and that Wiese was the correct party to determine case reassignment.

As part of the agreement, Ballou must attend an online course about judicial and social media ethics, documents said.

As part of the agreement, Ballou must attend an online course about judicial and social media ethics, documents said.

Ballou served as a public defender for more than 15 years before being sworn into the bench in 2021. Her current term ends in 2027.

(Mike Frisch)

August 19, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, August 16, 2024

Reasons For Removal Of Judge

The Maryland Supreme Court has issued its (100 page) opinion on the removal of an elected circuit court judge.

The court had ordered removal shortly after the May 6, 2024 oral argument, with reasons to follow.

“In Maryland, judges are expected to abide by certain ethical standards, set forth in the Maryland Code of Judicial Conduct (‘MCJC’), to ensure they conduct themselves in a manner consistent with preserving the integrity of the judiciary.” Matter of Nickerson, 473 Md. 509, 512, 251 A.3d 1086, 1088 (2021) (footnote omitted). When a judge’s conduct seemingly falls short of the ethical standards to which judges are held, “the Maryland Constitution vests the Maryland Commission on Judicial Disabilities (the ‘Commission’) with the authority to investigate alleged instances of judicial misconduct and, where appropriate, recommend that this Court take appropriate disciplinary action, up to and including removal from office.” Id. at 512, 251 A.3d at 1088 (citing Md. Const. art. IV, § 4B).

This case concerns April T. Ademiluyi, formerly an Associate Judge of the Circuit Court for Prince George’s County, who was elected to office in the November 2020 General Election. On June 29, 2023, Investigative Counsel charged Judge Ademiluyi with having engaged in sanctionable conduct that violated multiple provisions of the MCJC. Investigative Counsel alleged that, among other things, Judge Ademiluyi engaged in sanctionable misconduct as a candidate for election, misconduct as a judge in training, misconduct involving her colleagues, misconduct with her staff, misconduct as a respondent in a judicial discipline proceeding, and, most importantly, misconduct as a judge presiding in a trial and deciding matters before the circuit court. Investigative  Counsel alleged that Judge Ademiluyi engaged in a pattern of behavior in direct contravention of a judge’s responsibility to promote confidence in the judiciary and maintain the dignity of judicial office.

Prior to charges being filed, the Commission had issued Judge Ademiluyi a “Letter of Cautionary Advice,” advising her to comply with reasonable directives from judges with supervisory authority, to conduct designated dockets so the public was not negatively impacted, and to refrain from engaging in future sanctionable conduct. After the filing of charges, the Commission held a hearing. In findings of fact and conclusions of law, the Commission concluded that Judge Ademiluyi had engaged in sanctionable conduct that violated almost all of the MCJC provisions charged by Investigative Counsel. The Commission recommended that this Court censure Judge Ademiluyi and that she be suspended for six months without pay, with two consecutive months to be served immediately, followed by probation for one year with the conditions that Judge Ademiluyi be assigned a mentor judge and a “probation monitor”; undergo a healthcare evaluation; and attend and complete all Maryland Judiciary trainings, as well as any trainings designated by the Commission during the probationary period.

On May 6, 2024, after a hearing, this Court concluded that Judge Ademiluyi had engaged in egregious misconduct and issued an order removing her from the office of Judge of the Circuit Court for Prince George’s County. See Matter of Ademiluyi, 487 Md. 133, 134-35, 314 A.3d 1259, 1260 (2024). We explain in this opinion the reasons for that action.

Violations as candidate

Turning to the substance of the violations, clear and convincing evidence demonstrates that the content of Judge Ademiluyi’s campaign video and blog post reasonably could be perceived as conveying information that would be inconsistent with the independence and impartiality of the judiciary in violation of Maryland Rule 18- 104.4(b). In her blog post, among other things, Judge Ademiluyi stated that “police and prosecutors destroy and fabricate evidence to cover up the drug rapes.” (Capitalization and emphasis omitted). In addition to claiming that police and prosecutors destroy and fabricate evidence to cover up drug rapes, Judge Ademiluyi stated that she had endured “years of abuse . . . from police, prosecutors, and judges who literally put the justice system up for sale to rapists[.]” Such statements could easily cause a reasonable person to infer that, once elected, Judge Ademiluyi would not be impartial in handling rape cases or that she would be biased against police and prosecutors in such cases.

With her campaign video, Judge Ademiluyi could reasonably be perceived as having violated Maryland Rule 18-104.4(b) as well as having made a commitment, pledge, or promise concerning sexual assault cases that was inconsistent with the impartial performance of the adjudicative duties of a circuit court judge in violation of Maryland Rule 18-104.4(d)(3). Statements in the campaign video could be viewed as Judge Ademiluyi promising to help survivors of sexual assault and give rise to an inference that Judge Ademiluyi would not be impartial in sexual assault cases. In the campaign video, after detailing her experience as a rape survivor, Judge Ademiluyi stated: “Women need more than a movement[,] People need more than protests in the streets[,] We need a power, a judge’s power[,] . . . As a judge I would have the power to help you too[.]” Judge Ademiluyi stated that, as a judge: “I will stand for Me Too and all of you[,] I have the right experience practicing law[,] I know the system[,] I know how to make it work for all of us[.]” These statements could easily lead a reasonable person to conclude that Judge Ademiluyi made a commitment, pledge, or promise that was inconsistent with the impartial performance of the duties of judicial office and that, in doing so, she failed to act in a manner that is consistent with the independence, integrity, and impartiality of the judiciary.

Demeanor

Clear and convincing evidence supports the Commission’s conclusion that Judge Ademiluyi violated Maryland Rules 18-101.1, 18-101.2, 18-102.5(b) and (c),31 and 18- 102.8(b) by engaging in a pattern of behavior demonstrating a lack of the patience, dignity, courteousness, and cooperation required of a judge. The Commission’s findings of fact show that Judge Ademiluyi engaged in a lengthy pattern of demeaning and discourteous behavior toward her staff that violated Maryland Rules 18-101.2(a) and 18-102.8(b). Judge Ademiluyi’s conduct with her staff exceeded appropriate feedback about an employee’s work product (which may not always be positive) and crossed the line into a continuous pattern of making offensive and humiliating remarks.

The court found the judge had fostered a toxic environment

The Commission’s findings of fact demonstrate that Judge Ademiluyi engaged in an “unyielding pattern” of making wholly inappropriate remarks to and about her staff and other judges, that she failed to cooperate with other judges in the administration of court business, and that she failed to comply with the reasonable directives of a judge with supervisory authority. Russell, 464 Md. at 430 n.21, 211 A.3d at 450 n.21. With such conduct, Judge Ademiluyi violated Maryland Rules 18-101.1, 18-101.2(a), 18-102.5(b) and (c), and 18-102.8(b).

Protocols

Clear and convincing evidence supports the Commission’s conclusion that, by failing to cooperate with reasonable directives of a judge with supervisory authority, follow courthouse protocols, including those related to the training of new trial judges, the continuance of cases, and reporting for work, and by displaying a lack of courtesy to others in the process, Judge Ademiluyi engaged in conduct that violated Maryland Rules 18- 101.1, 18-101.2, 18-102.5(b) and (c), and 18-102.8(b).

Case specific findings

The Commission found that Judge Ademiluyi displayed bias against criminal defendants in general when she advised her law clerk that she does not grant requests for drug and alcohol evaluations in criminal cases because they are “a way to get out of prison” and instructed her law clerk to find “substantive grounds” on which to deny a pending request. Judge Ademiluyi stated that she has never granted such a request by a criminal defendant...

Judge Ademiluyi’s actions in the Lambright trial violated the most basic obligation of a judge to perform the duties of judicial office fairly and impartially. This conclusion does not depend on a determination that Judge Ademiluyi’s conduct was motivated by the sentiments expressed in her campaign video and blog post about the Me Too movement or a pledge to help victims or survivors of sexual assault. Judge Ademiluyi’s conduct in stopping a criminal trial—after the State had rested and the defendant had already testified—to revisit an evidentiary ruling previously decided against the State, issuing a predetermined decision to admit additional evidence against the defendant after having conducted her own investigation, and withholding information about the extent of her investigation, standing alone, demonstrated bias against the defendant and a failure to perform judicial duties in a fair and impartial manner.

To be clear, we do not conclude that Judge Ademiluyi committed sanctionable conduct by making a legal error in holding a Daubert hearing or admitting the photographs taken by the Cortexflo camera. Although Judge Ademiluyi plainly abused her discretion with her conduct during the Lambright trial, this is not the basis of our conclusion that she violated in MCJC in her handling of the trial. Rather, we conclude that, based on her conduct during the Lambright trial, Judge Ademiluyi demonstrated bias against the defendant and failed to acquit her office fairly and impartially and, in the process, violated the MCJC.

Process-related contentions

We discern no basis for the allegation that Judge Ademiluyi has been subject to trial by ambush or rushed proceedings in this matter.

Removal

In this case, Judge Ademiluyi’s removal from office was the only disposition sufficient to protect the public’s confidence in the independence, integrity, and impartiality of judiciary and ensure the fair and impartial administration of justice. Cf. Diener and Broccolino, 268 Md. at 689, 304 A.2d at 603. Judge Ademiluyi’s numerous violations of the MCJC constituted egregious misconduct in office and conduct prejudicial to the administration of justice. As we explained in Diener and Broccolino, id. at 689, 304 A.2d at 603, we are not bound by the Commission’s recommendation and “have the power to disregard its recommendation entirely,” so that justice may be served...

Given the wide-ranging and pervasive nature of Judge Ademiluyi’s misconduct, her inability to comply with the fundamental requirement that she perform the duties of office fairly and impartially, and her lack of remorse for blatant and egregious violations of the MCJC, we concluded that the Commission’s recommended disposition was inadequate to protect the integrity of the judiciary and the fair and impartial administration of justice. With her misconduct and violations of the MCJC, Judge Ademiluyi showed that she could not be trusted to perform the duties of a circuit court judge. Judge Ademiluyi repeatedly violated basic principles that a judge is required to adhere to and showed no indication that she would be amenable to change or that she would ever acquit judicial duties in a manner that would be consistent with the fair administration of justice

Justice Watts authored the unanimous opinion. (Mike Frisch)

August 16, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, August 13, 2024

Fourteen Incidents

The Georgia Supreme Court ordered a 30-day suspension without pay  of a Superior Court judge for a series of incidents that violated rules of judicial behavior

As summarized by the Hearing Panel, the counts that Judge Reeves admitted pursuant to the Consent Agreement

describe[d] fourteen incidents spanning seven years of [Judge] Reeves’s seventeen years of service as a Superior Court judge. Most of these episodes involved [Judge] Reeves’s use of coarse, insensitive, demeaning, and/or insulting language, particularly with women. One involved a series of minor but nonetheless unwanted physical contacts between [Judge] Reeves and a female lawyer. The remaining incidents consisted of [Judge] Reeves improperly seeking to influence the handling of criminal prosecutions and misusing his title and office to assist the fundraising efforts of a local charity.

The Hearing Panel found that Judge Reeves’s admissions pursuant to the Consent Agreement proved by clear and convincing evidence that Judge Reeves committed the charged acts.

Sanction

this Court now accepts the Consent Agreement with Judge Reeves approved by the Hearing Panel and filed with this Court on July 18, 2024. We order that Judge Reeves be suspended without pay for 30 days, during which time he shall remain away from the various courthouses of his Judicial Circuit.

TVG News reported

A Superior Court Judge from the Middle Judicial Circuit has been suspended for thirty days without pay and received a public reprimand to resolve a case about his behavior inside and outside of the courtroom. The state’s high court also required in the order that the judge not seek re-election at the end of his term, which concludes on December 31, 2026.,

A 58-count complaint was filed against Superior Court Judge Robert “Bobby” Reeves with the Judicial Qualifications Commission (JQC) in 2022 over allegations of improper temperament and comments on the bench, improper comments demonstrating bias and prejudice, improper contact with court personnel, and ethical violations surrounding the fundraising and support for a victim assistance entity in the judicial circuit.

Specifically, the complaint contended that Reeves:

  • Appeared in a promotion video for the Sunshine House, in which was identified as “Judge Bobby Reeves, Superior Court Judge” and made statements including:
    • “The Sunshine House makes a huge difference in affecting justice in our area because it does help immensely with the prosecution of those who have molested and abused children.”
    • “It does help in getting people prosecuted. It does help in getting people convicted when they abuse children.”
  • Cohosted the Sunshine House’s Facebook ‘Give-A-Thon’ Fundraiser, which
    • was identified throughout the two hour fundraiser as ‘Judge Reeves,’
    • Urged viewers to donate
    • Made a $500 donation and challenged “every other judge and lawyer out there to at least match that donation.”
    • Stated “I told y’all some names to call. Call those judges in every county to get them on board. They all know how important the Sunshine House is…”
    • discussed the important of the Sunshine House’s work in prosecuting cases with the DA’s office
  • 2019 (Toombs): During a criminal proceeding where a defendant had a name similar to the word ‘innocence,’ Judge Reeves called the defendant’s name and stated words to the effect of, “I guess the name didn’t take.”
  • 2020/2021 (Jefferson): Judge Reeves made comments about another Superior Court Judge being too lenient and stated that he would have to “double up” (or words to that effect) on his sentencing to make up the difference. Reeves also stated that he would have to ‘do what he could to make sure that same Superior Court Judge was not assigned important cases.’
  • 2021 (Toombs): When asking court attendees to remain seated until he finished his instructions, ‘an African-American male started to leave the courtroom.’ Judge Reeves then stated to the male, “[s]ir you’re walking and I’m telling you to be still. Are you really that retarded?” This occurred in open court with members of the public, lawyers, and court staff present.
  • 2021 (Emanuel): When passing an Investigator with the Public Defender’s Office and the mother of a son with a pending case, Judge Reeves said to the woman, “I don’t know why you are talking to him [Investigator] about drugs. He’s the biggest drug dealer in Emanuel County.”
  • 2022 (Toombs): In open court, a jailer asked Judge Reeves when the court would recess for lunch. Judge Reeves responded with words to the effect of “[g]et the people [inmates] fed? You mean we have to feed these people [inmates]?”
  • 2022: During court proceedings, Judge Reeves repeatedly admonished a public defender for not having paperwork prepared properly. This occurred while the PD’s office was experiencing ‘extreme staffing shortages.’ The level of rebuke reached a point where the female public defender left the courthouse crying. After she left, Reeves remarked in open court, “if you can’t stand the heat, get out of the kitchen.”
  • Subjected four individuals to Reeves’ comments from 2016 to 2022. The charging document stated the pattern of improper behavior, at a minimum, “gave the appearance of constituting sexual harassment and/or bias based upon the gender of various females involved in the middle Judicial Circuit court system.”

Reeves, who serves as the Chief Judge in Emanuel, Candler, Jefferson, Toombs, and Washington counties, initially denied all of the allegations, despite supporting evidence for a number of the claims existing in photographic and video form. 

From TVG News's details on the allegations

J.C. – An employee of the Public Defender’s Office was whistled at while walking down a one-way street. Reeves stated words to the effect of, “[w]hat’s a pretty girl like you doing walking alone?” The woman is routinely called “Miss America” by Judge Reeves and he regularly “touches J.C.’s shoulders, rubs her back, and attempts to hug her, and does so in a manner that often makes her uncomfortable.” The document says Reeves has, on multiple occasions, told J.C. he will sign documents presented to him if she smiles. J.C. began taking an PD office investigator with her to have documents signed, prompting Reeves to remark that she was ‘a big girl’ and did not need the investigator to accompany her. Members of the court system joke, the document alleges, that if documents are not signed by Reeves, they should have had them taken by J.C.

M.B. – In June 2022, in the Emanuel Courthouse parking lot, Reeves told the woman “You have really nice legs!” The woman and Reeves had only interacted on two occasions previously.

C.P. – During a virtual meeting with the Jefferson County drug court staff in 2020, Reeves commented that he expected women to wear bathrobes and bathing suits during virtual hearings. The document also says C.P., from 2015 to 2020, witnessed Reeves inappropriately comment on the dress and appearance of other female attorneys, made comments about C.P. keeping in shape, and made negative comments about another ADA taking maternity leave.

(Mike Frisch)

August 13, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 12, 2024

A Bicycle Shop On Mackinac Island

Michigan Disciplinary Counsel has appealed an order of a Master that recommended dismissal of a complaint against a judge, contending that the allegations merit a hearing

In December 2022 the Judicial Tenure Commission filed FC 106 charging Hon. Debra Nance with intentionally making false statements under oath about an incident in which she was involved with Hon. Demetria Brue on Mackinac Island in August 2019. In order to file the complaint, the Commission had to determine that there was sufficient evidence of the misconduct charged in FC 106 to hold a public hearing. One aspect of the Commission’s determination was necessarily whether Judge Nance intended to deceive when she made the charged false statements.

The Master recently disagreed with the Commission’s determination and recommended that the Commission summarily dismiss FC 106 without any evidentiary hearing. The Master did so solely on the bases that a) Judge Nance claims that she did not intend to mislead and disciplinary counsel provided no evidence to the contrary, and b) she claims that certain important evidence is not authentic. Disciplinary counsel object to the Master’s recommendation because it rests on fundamental mistakes of fact and law:
• The Master should not have second-guessed the Commission’s determination that there is enough evidence of Judge Nance’s intent to hold a hearing.
• It is improper to summarily dismiss a complaint when intent is at issue.
• There is substantial evidence that Judge Nance did intend to mislead, which the Master improperly disregarded.
• The Master’s recommendation relied on a purported “fact” that is not true and is not in the record, and created an element of the misconduct that does not exist.

Any one of these errors, standing alone, is a compelling reason for the Commission to reject the Master’s recommendation to dismiss.

Background

While on Mackinac Island in August 2019 for a judges conference, Judges Nance and Brue had an interaction with Ira Green, the proprietor of a bike rental business. FC 106 alleges that while Judge Nance watched, Judge Brue argued with Green about the cost of bike rental; Judge Brue grabbed a piece of paper from Green’s hand, then falsely accused Green of having assaulted her; Judge Brue warned Green of the consequences of assaulting an African American judge; and Judge Brue falsely told a police officer that Green had assaulted her.

FC 106 charges that when Judge Nance was interviewed under oath by Commission staff less than a year later about Judge Brue’s interactions with Green and the Mackinac Island police, she falsely denied knowledge of Judge Brue’s misconduct even though she watched as Judge Brue committed it. To buttress her denial, she fabricated claims that Kenneth Hardy, the police officer who first came to the scene, would not even speak with or acknowledge her and Judge Brue. She also fabricated claims that Officer Hardy insultingly told her and Judge Brue to “wait by the curb” of a Mackinac Island street (along with the smell of horse dung) while he reviewed video of the interaction between Judge Brue and Green—a command to which Judge Nance ascribed racist intent. Judge Brue later made her own statements about the incident that were strikingly similar to the falsehoods in Judge Nance’s statements.

Not a trivial matter

In context, the Master’s comment conveyed his impression that the events charged in the complaint were trivial, even though they included abuse of authority and false allegations of assault by Judge Brue. Most tellingly, the Master’s comment conveyed his belief that the incident remained trivial even after Judges Brue and Nance made false statements about it. The Master’s comment appears to indicate a feeling that the Commission never should have filed the complaints in the first place. That sentiment is wholly consistent with the Master’s analysis in his recommendation to dismiss the complaint against Judge Nance and his decisions to stay the proceedings indefinitely and to bar consolidation of the proceedings.

The complaint is linked here. (Mike Frisch)

August 12, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, August 9, 2024

Judge Disqualified

The Louisiana Supreme Court has disqualified a judge from exercising the functions of her office

IT IS ORDERED, ADJUDGED, AND DECREED that respondent, Judge Eboni Johnson Rose, 19th Judicial District Court, State of Louisiana, be and hereby is immediately disqualified from exercising any judicial function during the pendency of further proceedings in this matter based on a finding of probable cause that respondent committed a violation of the Code of Judicial Conduct and poses a substantial threat of serious harm to the public and the administration of justice.

Hughes, J., dissents.

Given respondent’s apology and remorse, I would consider her attempt to improve her judicial performance through a period of probation under the guidance of an experienced and respected mentor. The balance between an appropriate sanction for behavior that deserves a sanction and respect for the choice of the electorate is a difficult one.

McCALLUM, J., concurs and assigns reasons.

I agree with the majority that Respondent presents a substantial threat of serious harm to the public and I therefore concur in the decision to immediately disqualify Respondent from exercising any further judicial function, as recommended by the Judiciary Commission of Louisiana. In this judicial disciplinary proceeding, probable cause for the allegations of misconduct against Respondent was established by official transcripts prepared by a certified court reporter of the on-record proceedings. However, because our constitution and Supreme Court rules do not allow us to do otherwise, the taxpayers of this state are forced to bear the double burden of paying Respondent’s salary during her suspension and the cost of a pro tempore judge to serve in her stead.

I concur because, were it in our power to do so, I would have made the suspension without pay and the expense of the pro tempore judge her responsibility...

While Respondent’s conduct as a member of the judiciary certainly warrants a suspension of her pay, there is no lawful means by which to impose this condition. The people of this state should amend the constitution to allow us that option. Furthermore, this Court should amend its rules to require the suspended judge to bear the expense of any pro tempore judge who is required to preside in the suspended judge’s stead.

GRIFFIN, J., dissents and assigns reasons.

I respectfully dissent noting that interim disqualification of a sitting judge is a harsh remedy that must be exercised sparingly as it runs counter to the decision of voters. See In re Hunter, 02-1975, pp. 12-13 (La. 8/19/02), 823 So.2d 325, 333-34; La. Const. art. V, § 22(A). This is axiomatic given the high bar articulated for a final decision of removal, namely “willful misconduct relating to [a judge’s] official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony.” La. Const. art. V, § 25(C).

The actions of the judge in this matter are cause for concern and may ultimately lead to discipline. However, in my view, they are not so egregious as to warrant the most extreme measures at this point in the Judiciary Commission process.

Newsweek reported

The order did not list specific reasons for her temporary removal, but she has faced several controversies, according to local news outlets. Baton Rouge TV station WAFB reported that several of her cases were overturned by higher courts because of mistakes she made during a trial and sentencing.

In the case of a woman accused of waving a firearm at a family allegedly pushing water toward her home while driving during a flood, Johnson Rose allowed the jury to continue deliberating even after they found her not guilty, according to WAFB.

Johnson Rose convicted the woman after meeting privately with the jury. She said during that meeting the jury said they wanted to convict the woman of a lesser charge, according to Baton Rouge TV station WBRZ.

From WAFB 9

Johnson Rose, a Democrat, is currently running for a seat on the Louisiana First Circuit Court of Appeal against 19th Judicial District Judge Kelly Balfour, a Republican.

The election is in November.

Among the controversies in Judge Johnson Rose’s court was the case of Bridgette Digerolamo.

Digerolamo was arrested after waving a gun at people who were pushing water toward her home while driving through her flooded neighborhood.

Justices later overturned Judge Johnson Rose’s verdict after noting that the judge read a not-guilty verdict in court but allowed the jury to continue to deliberate and change its mind.

Justices found that Judge Johnson Rose then convicted Digerolamo before another judge stepped in and declared a mistrial.

The state supreme court later unanimously cleared Digerolamo of all charges.

Prior to that situation, Judge Johnson Rose convicted former Baton Rouge Police Officer Donald Steele of “misdemeanor” grade malfeasance even though the charge is considered a felony in state law.

Attorneys noted that misdemeanor-grade malfeasance does not exist. Johnson Rose later chose to issue a new verdict and acquit the former officer of all charges.

Judge Johnson Rose was also involved in another high-profile spat with District Attorney Hillar Moore.

The WAFB I-TEAM uncovered documents showing that Judge Johnson Rose implied that Moore’s office targeted black offenders and wanted to “stick every ni**er in jail.”

(Mike Frisch)

August 9, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Home Repairs

The Columbus (Ohio) Dispatch reports on ethics charges brought against a former judge by Ohio Disciplinary Counsel

A retired Franklin County judge could lose his law license after a complaint accused him of misappropriating more than $65,000 from a judicial association where he once served as treasurer.

The complaint filed with the Ohio Board of Professional Conduct involves former Franklin County Municipal Court Judge Michael Brandt, who retired in 2018 due to a statutory age limit imposed by the Ohio legislature. 

Brandt, now 81, served as treasurer of the Association of Municipal and County Judges of Ohio between 2006 and 2022, according to the complaint. Part of his duties included overseeing the collection of $150 dues from about 250 sitting judges in Ohio. 

Following his retirement from Franklin County Municipal Court, Brandt worked as a retired assigned judge, assisting other counties as needed around the state.

The complaint says Brandt did not use any bookkeeping or money-tracking software. Instead, he relied on handwritten notes and ledgers. 

Between January and December 2021, Brandt documented more than $35,000 in withdrawals from the association's three bank accounts. The withdrawals were made at ATMs, through online transfers and through checks Brandt wrote to himself, the complaint says. 

He used more than $16,800 of that money for home repairs at a house Brandt owned in West Virginia, as well as his home in Grove City, according to the complaint. 

In November 2022, the association's accountant informed Brandt that the withdrawals had created a deficit for the 2021 tax year and that a $2,000 check Brandt wrote to himself was not documented. 

The complaint says Brandt informed the association's president and resigned later that month. On the same day he resigned, Brandt provided checks for the money used for home repairs along with an additional $17,000.

The association's president conducted an audit beginning in 2022 and dating back to 2014, which found that Brandt misappropriated more than $65,400 during that eight-year time span, the complaint says. Brandt and the association agreed to settle the dispute, with Brandt paying an additional $25,000 back to the association in October 2023.

Brandt's law license has been listed as registered as inactive by the Ohio Supreme Court since 2023.

Though retired and inactive, the Board of Professional Conduct could recommend that Brandt be suspended from practicing law or revoke his law license if it determines that the allegations against Brandt are true.

Brandt has not responded to the complaint.

(MIke Frisch)

August 9, 2024 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, August 8, 2024

Personal Friends

A stipulated public censure of a judge has been ordered by the Oregon Supreme Court.

“On September 14, 2020, the Respondent had a conversation with a personal friend regarding the process to obtain a Family Abuse Prevention Act (‘FAPA’) restraining order. The Respondent informed the friend of the filing deadline if she wished to appear before a judge on the same day of the filing [of] a petition for a FAPA restraining order. The Respondent also informed the friend of the option to fill out the requisite forms online, how to create an account to do so, and explained the process to appear remotely for an ex parte restraining order hearing. The Respondent did not draft, prepare, nor file any documents for the friend.
 
“On or about September 14, 2020, the Respondent’s friend attended an ex parte hearing in front of another judge in Deschutes County and obtained the restraining order.“
 
“After the ex parte hearing in the FAPA Matter, the friend contacted the Respondent and stated that she felt she had been treated poorly by the issuing judge. The friend asked the Respondent how to go about dismissing the FAPA Matter. The Respondent told her friend she could take any action that she felt was in her best interest and then referred her to a local attorney for representation.“
 
“On September 20, 2020, the issuing judge came to the Respondent’s chambers and inquired into how she generally handled restraining order cases involving petitioners that appear to lack credibility. Based upon the information the issuing judge provided, the Respondent realized that the issuing judge was referring to the FAPA Matter with her friend. In response to the issuing judge’s comments, the Respondent vouched for her friend’s credibility, disclosed that she had made observations at the friend’s home that were consistent with the friend’s testimony, and told the issuing judge that her friend felt ill-treated during the hearing.
 
Respondent then complained about the issuing judge to the presiding judge.
 
A separate incident involved a "close personal friend" whose husband was found deceased by possible homicide.
 
She came to the friend's home
 
“The Respondent entered the house and encountered local law enforcement in the living room, while she remained in the room’s doorway. The Respondent intervened in the conversation with law enforcement more than once. The Respondent then asked her friend if she wanted a lawyer, to which her friend replied yes. The Respondent told the detectives, ‘She needs to have a lawyer with her’ and ended the questioning"
 
She admitted violating multiple rules of judicial conduct.
 
Central Oregon Daily reported on the matter
 

70-year-old Leonard Raymond Peverieri was killed Oct. 9 at his home on Los Serranos Drive just east of Bend. So far, no arrests have been made and no information on any suspects has been released.

District Attorney John Hummel confirmed to Central Oregon Daily News Wednesday that Judge Bethany Flint showed up while Peverieri's wife was being interviewed by deputies and spoke with her. Hummel said Flint and the wife are friends.

In a letter to Central Oregon Daily News on Tuesday afternoon, Presiding Deschutes County Judge Wells Ashby said Judge Flint told him the day after the incident that she had become involved, but he didn't go into specifics of how.

"At the conclusion of our discussion, I asked Judge Flint to have no further involvement with the investigation and she agreed. Additional steps were then taken to better understand the situation," Ashby wrote.

 
(Mike Frisch)
 

August 8, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, August 7, 2024

Thou Shalt Not Judge

The Florida Judicial Ethics Advisory Committee has opined that a judge cannot sit in judgment in a matter involving a defendant he had previously prosecuted

Subject

A judge who, as a former Assistant State Attorney, prosecuted a particular defendant, must recuse from all cases involving that defendant.

Issue

Whether a judge must recuse from all cases involving a defendant who the judge previously prosecuted.

ANSWER: Yes.

Facts

Prior to being appointed to the bench (and subsequently elected), the inquiring judge was a prosecutor in the same county/ circuit. The judge was a trial attorney at the State Attorney’s Office and actively prosecuted all types of cases, ranging from misdemeanors, sex crimes, career criminals, firearm offenses, and homicides.  The judge did not have any official supervisory capacity over any other attorneys. While the judge was given specialty designations, such as when prosecuting sex crimes and career criminals/firearms, each Assistant State Attorney (“ASA”) handled their own cases, and the judge did not have supervisory duties for any special divisions.

When the judge was appointed to the bench, the judge spent 2.5 years in a non-criminal Circuit division but has now been transferred to a Circuit Criminal division. In the county where the judge presides, Circuit Criminal cases are assigned to each judge based on the beginning letter of the defendant’s last name. 

While at the State Attorney’s Office, the judge was assigned to several different divisions in front of several different judges. As an ASA, the judge was assigned specialty cases (such as sex crimes) and handled all of the defendants assigned to that courtroom with all letters assigned to that courtroom (such as A, B, C, D). The judge would also handle “non-specialty cases” and be assigned all the defendants with that letter (ex: B).  Each division would include a Sex Crimes/Child Abuse ASA, Career Criminal/Firearm ASA, General Felony ASA and a Division Chief.

In the Criminal Circuit courtroom to which the judge is now assigned, the judge was assigned as an ASA approximately 10 years ago. During that time frame, the judge handled the sex/child abuse cases, as well as other felony cases in that division.

According to the judge, it appears that, over the course of 10 years, the “letters” assigned to the division have not changed significantly. While the judge is seeing very few cases where the judge was actually the ASA who prosecuted the defendants’ current case, the judge is seeing cases where the defendants previously prosecuted by the judge in his former ASA capacity have new cases. Those defendants are assigned to the judge’s courtroom by virtue of their last names.

Discussion

Canon 2A states, “A judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” In the Commentary to Canon 2A, it is noted that, “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”

Additionally, Canon 3(E)(1)states, “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.” In the Commentary to Canon 3(E)(1), it is noted that, “Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.” [Emphasis added]

In JEAC Op. 2021-18, this Committee opined that a judge did not have to recuse from presiding over a sex offender/predator’s failure to register case, where the underlying sex offense convictions that formed the basis of the registration requirement, were initially charged by the judge when the judge was an ASA. The committee based its conclusion on the fact that the judge made the charging decision but did not actually prosecute the case or supervise the attorneys who did. And concluded that, “when applying the plain reading of Canon 3E(1)(b), the inquiring judge did not serve as a lawyer in the matter in controversy, as the matter in controversy is a failure to register charge and not the original sexual offense.”

The inquiring judge asks a slightly different question in that this judge was the prosecuting, and not just the charging)attorney in a case involving this same criminal defendant on different charges. This makes JEAC Op. 2021-18 distinguishable.

In fact, in Goines v. State, the court found that it was ineffective assistance of counsel for the defense attorney not to seek disqualification where the judge presiding over the defendant’s trial had prosecuted defendant on other charges, six years earlier. 708 So. 2d 656 (Fla. 4th DCA 1998)

“The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Commentary to Canon 2A. This Committee finds that a reasonable mind would perceive that a judge who previously prosecuted the same defendant would not be impartial.

Additionally, the Commentary to Canon 3(E)(1) states clearly that, “…a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.” Commentary to Canon 3(E)(1). Here, it is evident that the judge’s impartiality might be questioned.

Based on the Commentary for both Canon 2A and 3(E)(1) and the Court’s holding in Goines, this Committee concludes that the inquiring judge must recuse from all cases involving this defendant.

(Mike Frisch)

August 7, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)