Earlier this month, the U.S. Supreme Court issued an important opinion on judicial recusal, Williams v. Pennsylvania. It is the first instance in which the Court has applied the standard first announced in Caperton — that recusal is required when the risk of actual bias on the part of a judge is “too high to be constitutionally tolerable.” In Williams, the Court reached the conclusion that due process required recusal of a Pennsylvania Supreme Court Justice in a post-conviction matter where he had been the District Attorney who signed off on pursuit of the death penalty against the prisoner in the underlying murder case. Both the majority opinion, authored by Justice Kennedy, and at least Justice Thomas’s dissent, which stresses the point that the two cases are not the same case — one being a civil proceeding and the earlier one a completed criminal case, are worth a read. But, the Williams opinion not the primary issue involving judicial ethics that prompted me to write.
What did is the story of the Florida circuit court judge (in Broward County) who has now accepted a proposed public reprimand and agreed to deliver, in person, a written apology to a prosecutor for his conduct back in 2015. You can get access to the full charging document filed back in November 2015 against that judge here, and you can read a week-old story from The Sun Sentinel about the acceptance of the discipline here.
The Florida judge’s original misstep involved the sending of an email in March 2015 to one of the lawyers in the Broward County Public Defender’s office that read as follows:
Sam. fyi, see the Palm Beach Judge’s Order re downward departures generally, not regarding any particular cases … and hopefully, you can perfect your own motions for downward departure (when you believe appropriate) using the excellent research you’ve already begin [sic], and perhaps some of this Judge’s Order and perhaps the cases she relied upon as well, but in either case, maybe there is something of interest (generally) below.
That email also forwarded to that public defender an email the judge had sent about 30 minutes or so earlier to his staff attorney about how to use that order as a template for orders in this judge’s cases. The receiving public defender then shared the email with other attorneys in that office and one of them recognized that the contents also needed to be shared with the prosecutors.
That led to the filing of a motion by prosecutors seeking a blanket recusal of the judge based in part on “favoritism” shown to the defense lawyer who received the email. The judge then compounded his situation with the way he handled a couple of subsequent matters that were stayed as a result of the list of cases for which recusal was being sought. He managed to call the prosecutors who compiled the list “idiots,” and saying that the premise of the whole underlying mess was “a lie from the pit of hell.” Poker players might refer to that kind of lashing out as a “tell” on the part of the accused judge.
Interestingly, the Florida judge wrapped into one proceeding both kinds of judicial violations that have separately been the subject of two of the most recent instances of public judicial discipline in Tennessee.
I wrote many moons ago about an unusual circumstance where the Tennessee Association of Criminal Defense Lawyers as a group had filed an ethics complaint against a Nashville General Sessions Judge for an ex parte email communication to members of the local district attorney’s office about certain rules the judge would have in terms of plea agreements that simply would not be accepted. That judge ended up receiving a public reprimand for her conduct in March 2016, which you can read in full here.
More recently, a Juvenile Court judge in Murfreesboro, Tennessee (a college town not too far from Nashville) received a public reprimand for her conduct in making vituperative remarks directed at parties/attorneys in a hearing involving a motion to transfer. While not rising to quite the same level as the Florida judge’s rhetoric, the Murfreesboro judge did call the folks seeking to transfer a case out of her court as a “sneaky snake,” and as being “conniving.” You can read the public reprimand letter issued to that judge here.
Given that both Tennessee judges received public reprimands just for conduct involving one thing or the other, it seems the Florida circuit judge ought to be somewhat grateful that he got out of his jam involving both ex parte communications and rash invective from the bench without receiving a suspension.