JUDICIAL CONDUCT REPORTER

Between 1980 and the end of2006, approximately 348judges had been removed from

office as a result of state judicial disci-pline proceedings. In 2007, nine statejudges were removed.

Egregious pattern of misconductThe California Commission onJudicial Performance removed a judgefor an egregious, disturbing, and per-sistent pattern of misconduct thatinfringed the constitutional rights ofdefendants, “transgressed the limits ofhis authority, often in a capricious andmalicious manner,” and was “com-pletely at odds with the standard ofconduct expected of the judiciary.”The Commission found that the judge(1) in eight cases, held unrepresenteddefendants who had appeared to

request a modification of probationhad violated their probation andimposed time in custody without com-plying with due process requirements;(2) in six cases, increased or threat-ened to increase a defendant’s sen-tence for asking legitimate questionsor offering a defense; (3) in five cases,asked defendants convicted of speed-ing violations if it felt good to “peelout” and conditioned their sentenceson their responses; (4) in seven cases,informed unrepresented defendants atarraignment that their only choiceswere to plead guilty or accept diver-sion without advising them of theirconstitutional right to plead not guiltyand have a trial; (5) improperly issuedbench warrants for absent defendantsbecause their attorneys were not pres-ent when their cases were called and

refused to recall the warrants whenthe attorneys later appeared andexplained their absence; and (6) madeinappropriate comments in 14instances that disparaged counsel orsuggested, as a “joke,” that a personappearing before him was about to beremanded to custody. InquiryConcerning Velasquez, Decision andOrder (California Commission onJudicial Performance April 25, 2007)(cjp.ca.gov/pubdisc.htm), petition forreview denied (October 10. 2007). Formore information about the case, seepages 4-5.

Noting that character witnesses hadtestified to the judge’s reputation as arole model in the Latino community,the Commission acknowledged the

Nine Judges Removed in 2007

In addition to the nine judgesremoved from office in 2007 as aresult of state judicial discipline

proceedings, six judges resigned (orretired) in lieu of discipline pursuant toagreements with judicial conduct com-missions that were made public. 104additional judges (or former judges inapproximately 15 cases) were publiclysanctioned in 2007.

In approximately 42 of those cases,the discipline was imposed pursuant to

the consent of the judges. These fig-ures do not include pending recom-mendations or decisions.

There were 19 suspensions withoutpay, ranging from one week to 18months (with six months stayed withconditions). One suspension alsoincluded a public reprimand and$1000 fine; one also included a publicreprimand and $1500 fine.

There were 24 public censures, 22public admonishments, and 30 public

reprimands (one also included a $500fine, one also included a $3500 civilpenalty). Finally, there were two ceaseand desist orders, three attorney disci-pline cases involving former judgesfor conduct as judges, and four otherpublic dispositions (one private repri-mand that was made public and threecases in which misconduct was foundor stipulated to but no sanction wasimposed).

Other Discipline in 2007

JUDICIALCONDUCTREPORTERA publication of the American Judicature Society Center for Judicial EthicsVolume 29, No. 4 Winter 2008

To secure and promote an independent and

qualified judiciary and a fair system of justice

(continued on page 4)

2 Judicial Conduct Reporter Winter 2008

A judge is not disqualifiedfrom cases involving a party or apotential party in interest who hasmade large contributions to thecounty’s drug court program wherethe judge was not involved in theestablishment of the drug court, doesnot preside over it, and only occa-sionally works with its personnel.Alabama Opinion 05-850.

A judge may preside overthe criminal case of a defendant whohad previously appeared before thejudge in drug court but must discloseany recollection of the defendantpreviously going through drug court.Nevada Opinion JE06-9.

A judge is prohibited fromdirectly soliciting by a letter on judi-cial stationery donations from localbusinesses for start-up supplies nec-essary for establishment of a “littersquad” as an alternative punishmentto incarceration. Alabama Opinion07-878.

A judge who presides overdrug court may not solicit or receiveincentive gifts from lawyers or lawfirms for use as rewards to drugcourt program defendants/partici-pants. Florida Opinion 07-5.

A judge may not solicitbusinesses for donations of gift cer-tificates and coupons to be used asrewards for good behavior by juve-niles on probation. Florida Opinion07-18.

A judge may not sign a let-ter requesting local businesses todonate small items for use as pro-gram rewards and incentives fordefendants in the mental health courtnor may the judge direct a courtemployee to solicit such donations.Ohio Opinion 04-13.

A judge may serve as adirector of a non-profit corporationformed to solicit funds to provideincentives and other needs for par-ticipants in a local drug court as longas the judge’s participation does notinvolve active or passive fund-rais-ing. Maryland Opinion 05-11.

A judge who presides over adrug treatment court may not useexcess campaign funds to purchasecongratulatory gifts, such as dinnersor theater tickets, for graduates whohave successfully completed thedrug court treatment program. NewYork Opinion 05-132.

A judge with drug courtresponsibilities may apply for, orauthorize an entity to apply for,grant funding for the administrativesupport of state drug courts throughthe Department of Mental Healthand Substance Abuse Services.Oklahoma Opinion 02-2.

A judge who presides over adrug court may receive from a treat-ment center reimbursement ofexpenses incurred to attend trainingprograms required by federal grantsthat support operation of the drugcourt where treatment centeremployees do not routinely appearin the drug court as adversaries, liti-gants, or entities to which the judgemay award income-producing busi-ness; the treatment center has no dis-cretion in reimbursing the judge; andthe current funding mechanism doesnot change the structure the drugcourt program has had from the out-set. Massachusetts Opinion 07-9.

A judge may serve in anuncompensated advisory position asregional coordinator of the NationalAssociation of Drug CourtProfessionals facilitating the dissem-

ination of information, lecturing,and providing training for drug courtjudges. New York Opinion 05-155.

A judge who is a member ofthe regional drug court team mayappear with other team memberswhen the team is honored at anAmerican Red Cross fund-raisingevent, but the judge’s remarks mustbe limited to a brief expression ofthanks; the person making the pres-entation should explain why thejudge is not named in the promotion-al material for the event but that thejudge is part of the team that isreceiving the award. New YorkOpinion 05-42.

A judge may participate in apress conference announcing thecreation of a drug court as long asparticipation is limited to providingrelevant information about the exis-tence of the drug court and how itwas created and introducing themembers of the drug court and thejudge does not offer other commentsor answer questions. South CarolinaOpinion 14-05.

A judicial officer mayaccept and retain on behalf of thecourt a ceremonial blanket receivedfrom the parents of a drug courtgraduate, who indicated it was a partof the Native American tradition tobestow these gifts, but the courtshould consider adopting a gift poli-cy that will explain why it cannotaccept such gifts in the future.Washington Opinion 07-1.

.* The Center for Judicial Ethicsweb-site has links to judicial ethicsadvisory committees at www.ajs.org/ethics/eth_advis_comm_links.asp.

Recent Advisory Opinions: Problem-solving Courts

Judicial Conduct Reporter Winter 2008 3

Several judges were disciplined in2007 for conduct related to pleaagreements and arraignment

practices.For example, one California judge

was publicly admonished for approv-ing a plea agreement that sent a defen-dant to another state in violation ofcase law and public policy. PublicAdmonishment of Iles (CaliforniaCommission on Judicial PerformanceNovember 15, 2007) (cjp.ca.gov/pub-disc.htm). The defendant had beencharged with making criminal threats,child abuse causing great bodily harm,and assault with a deadly weapon aris-ing from a domestic violence incident.The judge accepted a plea agreementproposed by the defendant and hiscounsel, without objection from thedistrict attorney, in which sentencingwould be postponed and the defendant

released on his own recognizance onthat condition that he leave Californiaand remain outside the state. The judgeordered the defendant to cooperatewith the public defender’s investiga-tor, who would transfer him to the LosAngeles airport; from the airport, thedefendant would fly directly toDetroit, where he had family who hadoffered to assist him. The judge con-tinued sentencing to May 1. When thedefendant failed to appear at the con-tinued sentencing hearing, the judgeissued a bench warrant that specified itcould be served only in California.

The defendant returned toCalifornia in 2006 and was arrestedunder the outstanding warrant. Hefiled a motion to withdraw his plea(which the judge denied) and a motionto disqualify the judge (which shestruck as untimely). Granting a peti-

tion for a writ of mandate, the Court ofAppeal held that the plea agreementwas unconstitutional and void as over-broad, uncertain as to duration, andcontrary to public policy.

The judge explained that she hadapproved the plea, in part, because thedefendant could have been deported toIraq if she had sentenced him, andcounsel had assured her if he weredeported he would be tortured andprobably executed under a death war-rant there. She did not think that hisrelocation to Michigan would subjectcitizens there to any risk because shebelieved that his wife and childrenwere the only people he was likely toharm. She believed the plea bargainwas an appropriate solution under thecircumstances.

Misconduct Related to Pleas

The prohibition on ex parte com-munications is one of the coreprinciples of judicial ethics,

ensuring that all parties get the sameopportunities to address the judge.Violation of the rule in criminal andcivil cases formed the basis for severaljudicial discipline cases in 2007.

For example, the Utah SupremeCourt approved the censure of a for-mer judge for changing a defendant’ssentence after an ex parte communica-tion with the defendant’s attorney. Inre Lewis, Order (Utah Supreme CourtAugust 31, 2007). The JudicialConduct Commission had noted thatthe case had received widespread pub-licity leading up to the November2006 election, at which voters voted tonot retain the judge.

The judge sentenced James Scott tothree consecutive prison terms of 10-years-to-life after a conviction of threecounts of sodomy on a child. Scott’s

attorney sent a letter to the judgeexpressing concerns for how she hadtreated him in her courtroom. Thejudge called the attorney, and they dis-cussed the sentence. The judge told theattorney that she felt the sentenceshould be changed and would researchto see if she still had jurisdiction, ask-ing the attorney not to tell the prosecu-tor about their discussion. Withoutnotifying the prosecutor, Scott’s vic-tim, the defendant, or defense counsel,the judge changed Scott’s sentence sothat two of the prison terms would runconcurrently with each other but con-secutively to the third count.

The New York State Commissionon Judicial Conduct censured a judgewho spoke to an arresting officerconcerning a matter affecting adefendant’s credibility. In the Matterof Williams, Determination (NewYork State Commission on JudicialConduct November 13, 2007)

(www.scjc.state.ny.us). It was thejudge’s third public sanction.

At a trial in which Daniel Wlochwas charged with harassment arisingfrom a dispute between Wloch and hisneighbor about her dog’s barking,Wloch testified that he had spoken to astate trooper who had told him, “Don’tworry about it. It would only be a $100fine” and that it would be “like aspeeding ticket.” The judge reserveddecision and adjourned the matter.Sometime between the trial and theadjourned date, the judge saw one ofthe troopers Wloch had spoken to atthe county fair. When the judge toldthe trooper about Wloch’s testimony,the trooper told the judge that he hadhad no such conversation with Wloch.

Subsequently, Wloch appearedbefore the judge and was found guiltyof harassment, second degree. The

Ex Parte Communications: Recent Cases




judge’s laudable contributions to thecommunity and the challenges hefaced as the son of migrant farm work-ers. Nevertheless, the Commissionconcluded:

These considerations are overwhelmed bythe breadth and severity of the judge’s pastand present misconduct. Members of thecommunity who appear before JudgeVelasquez inside the courtroom are enti-tled to the same respect and dignity heaccords those who consider him to be arole model outside the courtroom.

Conduct related to affairThe Louisiana Supreme Courtremoved a judge for charges related tohis 10-year adulterous affair with hissecretary and failing to comply withcourt policies on travel expenditures.In re Miller, 949 So.2d 379 (Louisiana2007). The relationship began in 1992,when Heather Viator was his secretaryin private practice, at which time bothwere married to other people. InSeptember 1, 1994, Ms. Viator gavebirth to a baby boy, A.V. She told thejudge that A.V. was his child, and hebegan giving cash to Ms. Viatormonthly that he considered to be childsupport payments.

After Judge Miller took the benchin 1997, he engaged in sexual inter-course with Ms. Viator in his chambersat the courthouse once or twice a weekafter business hours. In May 1997, thejudge signed a consent judgment in theViators’ divorce proceedings thatordered Mr. Viator to pay child sup-port. Ms. Viator was still his secretary,they were still involved in a sexualaffair, and the judge believed that Ms.Viator’s child A.V. was his own child,which Mr. Viator did not know.

The sexual relationship between thejudge and Ms. Viator ended in July2002. In May 2004, Michael andHeather Viator remarried each other.

On July 3, 2003, Ms. Viator filed afederal suit against the judge, alleginghe sexually harassed her after theiraffair ended, constructively dis-charged her, and continued to attemptto contact her, personally, by tele-phone, and in writing, despite herrequests that he leave her alone. OnAugust 28, the federal judge enteredan order prohibiting the judge fromhaving “direct or indirect contact orcommunication” with Heather Viator.Thereafter, on three occasions inearly 2004, the judge mailed $400checks to Ms. Viator at her home

address, intending these checks aschild support for A.V. The federaljudge held Judge Miller in contemptof court and fined him $500 for vio-lating the order. The contempt orderwas affirmed by the 5th Circuit.

In 2003, the judge gave an inter-view to a reporter, which formed thebasis for an article, in which the judgediscussed his relationship with Ms.Viator, his belief that A.V. was his son,his monthly support to Ms. Viator forA.V., and his suit to establish the boy’spaternity and Ms. Viator’s federal suitagainst him. The judge also issued atleast two press releases to give his“side of the story.”

The judge maintained that, becausethe suits involved him personally, hisright to defend himself in the publicmedia superseded his obligation as ajudge not to make public commentsabout a pending case. The JudiciaryCommission found that a judge isexpected to have faith in the judicialsystem and that his right to “give hisside of it” occurs in the court proceed-ing – “not by making a media circusout of the case, and inflaming analready bad situation.” The courtagreed that the judge’s comments wereintended to influence the courts and

Nine Judges Removed in 2007 (continued from page 1)

More on VelasquezAs noted, the California Commission found that, in sixcriminal cases, Judge Velasquez became embroiled withthe defendant at sentencing and, acting with anger, threat-ened to increase time in custody and in some instancesactually increased time in custody. For example, as thejudge was sentencing Toni Merwin to 10 days in jail on amisdemeanor, Merwin asked “is there a way you canmake the time less?” The judge responded, “I can makeit more.” Merwin’s sentence was not increased. TheCommission found that the judge did not like Merwinquestioning the sentence (which he characterized as“nickel and diming me”) and that his remark was

designed to make her stop questioning the sentence anddeter others from doing the same.

In five cases, the judge asked a defendant who wasbeing sentenced on a misdemeanor charge of speeding ifit “felt good” to “peel out.” The Commission found thatthe judge equated an affirmative answer with takingresponsibility and a negative answer with a failure toaccept responsibility. For example, the judge told AaronLynch that he would be fined between $200 and $1,000depending on his answer to the question whether it feltgood to “peel out.” When Lynch answered “yes,” thejudge told Lynch “that’s the answer I wanted,” imposing


the public by lending the prestige of his office to advance his privateinterests.

Incompetence and animosityThe Louisiana Supreme Courtremoved a judge for issuing judgmentsin two cases filed by a consumer loancompany without conducting hearingsor providing for service of process ofthe suits or the judgments and makingcontradictory, unsupported statementsto the Judiciary Commission. Thecourt found that the record supportedthe Commission’s conclusion that thejudge was either too incompetent ortoo inexperienced to properly performher judicial role. In re Franklin, 969So.2d 591 (Louisiana 2007).

Advantage Financial Services filedsuits in the judge’s court againstPatricia Davis and Chelis Cain. Thejudge did not issue citations to sum-mon Davis or Cain or forward cita-tions to her constable for service. Onthe day and hour purportedly fixed fortrial of the Davis case, neither Davisnor any representative of Advantagewas present in the judge’s courtroom,but the judge signed a judgmentagainst Davis. No notice of the judg-ment was served on Advantage orDavis. The judge handled the caseagainst Cain in the same fashion.

The manager for Advantage testi-fied that he was rarely able to contactthe judge, creating the impression thatshe was trying to dodge the workrequired to resolve the suits. The man-ager stated that Advantage does limit-ed business in the judge’s parishbecause the company feels it has norecourse there based on the judge’sactions in these cases, adding that apotential borrower from the judge’sjurisdiction would be looked at muchmore closely because the companycould not be certain that it could col-lect on outstanding debts.

The judge presented two inconsis-tent versions of service returns to theCommission. The court stated it wasdifficult to determine whether thejudge was intentionally misrepresent-ing the truth or whether she wasunable to understand the requirementsof her role and the serious conse-quences of her conduct. The courtnoted its resolution of the issue was“hampered by her utter failure to coop-erate with the Commission in theinvestigation,” stating that the judgefailed to produce documents, toanswer interrogatories and requests foradmission, to appear at the hearing, tofile a brief in the court, or to appear fororal argument.

The New York State Commission

on Judicial Conduct removed a non-lawyer judge whose handling of aproperty dispute was a “travesty” thathad been “tainted both by his acknowl-edged animosity towards the defen-dants and by his connection with oneof the sellers.” In the Matter of Ellis,Determination (New York StateCommission on Judicial Conduct July24, 2007) (www.scjc.state.ny.us).Based on the sellers’ ex parte represen-tations that the purchasers under ainstallment land contract had failed tomake required payments, the judgeissued a notice to the purchasers termi-nating their tenancy; the notice notonly referred to a non-existent “lease,”but was signed by the judge on the linemarked “landlord.” One of the sellerswas living with the judge’s niece andwas the father of her two children.

Two months later, based upon infor-mation provided ex parte, the judgesigned a summons directing one of thepurchasers to appear in the court andstating that, if she failed to appear, ajudgment of $3,100 would be takenagainst her for “failure to pay rent andtaxes” without giving the 22 days’notice required for a small claimshearing. After another ex parte discus-sion with the seller, the judge issued a

a $200 fine. The Commission found that the judge“became embroiled in the process, acted in a way thatmight have suggested he had prejudged the case, and usedhis own experience as a young man as a factor in the ulti-mate sentence given.”

In 14 instances, the judge made inappropriate com-ments in the courtroom, including joking about imposingjail time and disparaging attorneys. For example, when adefendant asked if he could work off a fine, the judgesaid: “I wasn’t going to give you any jail time, but if youwant some, I’ll give you some. How many days wouldyou like? You have 180 to pick from.” In another case,after a defendant’s attorney made a two and a half minuteplea that his client not be incarcerated, the judge respond-

ed, “Let me wake up.”The judge contended that he was attempting in good

faith to interject humor into the courtroom. TheCommission noted that the people to whom the judgeaddressed his jail comments were being respectful andappropriate and were often asking legitimate questionsabout their sentences, that the brevity of the judge’sremarks does not make them any less offensive or inap-propriate, and that the comments most likely caused stressand concern to the defendants, even if for a brief moment.Finally, the Commission concluded that the judge’sattempts at humor in a public courtroom under the cir-cumstances were undignified, out of place, and prejudi-cial to public esteem for the judiciary.



Nine Judges Removed in 2007 (continued from page 5)

warrant of eviction that stated inaccu-rately that a petition had been servedon the purchaser and that a judgmenthad been entered.

At a court hearing, the partiesagreed to settle. After the terms of thesettlement were placed on the record,the judge turned off the recordingequipment and, in a belligerent man-ner, stated in words or substance to thepurchasers that they should “stop jew-ing other landlords.”

The Commission found that thejudge’s actions conveyed the appear-ance that he was using his power tobenefit his relative’s interests. TheCommission concluded: “Whetherrespondent’s conduct was the result ofincompetence or a deliberate intent tobenefit his relative’s interests, therecord in its totality demonstrates con-clusively that he is unfit to serve as ajudge and that his continued retentionon the bench is inconsistent with thefair and proper administration of jus-tice in his court.”

The New York Court of Appealsupheld the removal of a judge who haddismissed several cases based on exparte communications and had alteredher court calendar to support her falsetestimony. In the Matter of Marshall,872 N.E.2d 247 (New York 2007). Thejudge engaged in ex parte conversa-tions with three defendants concerningthe merits of code violation casesagainst them and told them that theydid not have to appear in court thatevening as scheduled. At the court ses-sion, the judge told the town attorneyand the code enforcement officer thatthe cases would be adjourned toJanuary 26, 2004, and she wrote thatdate in her court calendar. Prior toJanuary 26, however, the judge dis-missed the cases without providing thetown attorney or code enforcementofficer an opportunity to be heard.When questioned by the Commission,

the judge repeatedly testified that shehad not adjourned the cases. She alsoused white-out to conceal theadjourned date originally written inher court calendar.

The court stated it was not persuad-ed by the judge’s claim that her use ofwhite-out “was merely a routine alter-ation intended only to update the statusof the cases.” Noting that “the use of aJudge’s ‘lack of candor’ as an aggra-vating circumstance should beapproached cautiously to minimize therisk that the investigative process itselfwill be used to generate more serioussanctions,” the court concludedremoval was appropriate when thejudge “gave patently false explana-tions to the Commission despite con-trary objective proof.”

Offensive conductThe Pennsylvania Supreme Courtaffirmed the decision of the Court ofJudicial Discipline to remove a judgewho routinely used improper andoffensive language in dealing with hisstaff. In re Berkhimer, 930 A.2d 1255(Pennsylvania 2007). For example, thejudge said to one of the women “I amnot a political whore. I don’t kiss any-body’s ass unless pussy’s involved.”The judge told another employee, infront of her colleagues, that he hadrelayed her sexual interest in a policeofficer to that officer at an officialfunction even though she had made nosuch request. On more than one occa-sion, the judge invited three femaleemployees to look at pornographicimages on his computer; in oneinstance, the image was evidence froma child pornography case. When one ofthe employees refused to view theimage, the judge described it to her ingraphic detail despite her protests.

Noting that the judge’s staff had nochoice but to endure his conduct, thecourt concluded the judge’s conduct

could not be separated from his judi-cial position. The women, the courtstated, “were subjected to expletive-filled language on a daily basis, as wellas offensive comments intended toembarrass,” and to them, the judge“was not a colleague with bad tasteand behavior; he was their boss, robedwith the official stamp of approvalfrom the judicial branch.”

The Virginia Supreme Courtremoved a judge for initiating animproper ex parte telephone call duringa recess in a custody hearing and twicedirecting the mother in the case tolower her pants in the courtroom and,during a hearing in a different case,twice tossing a coin in the courtroom toresolve a visitation dispute. JudicialInquiry and Review Commission v.Shull, 651 S.E.2d 648 (Virginia 2007).Seeking to extend a protective orderagainst her husband and to secure cus-tody of their two children, TammyGiza claimed that Keith Giza hadinflicted a wound on her thigh, whichKeith disputed. The judge admittedthat Tammy twice lowered her pants inthe courtroom during the custody hear-ing to allow him to inspect her thighwound and that he had “initiated” bothincidents. The court concluded that thejudge’s actions were “egregious” andshowed “an obvious lack of concernfor Giza’s personal dignity or the dig-nity of the judicial proceedings.”

Criminal conductTwo judges were removed followingtheir convictions for crimes unrelatedto their office. In the Matter of Myles,Determination (New York StateCommission on Judicial Conduct Nov-ember 1, 2007) (www.scjc.state.ny.us)(tampering with utility company metermeasuring electricity to his home); Inre Balance, 643 S.E.2d 584 (NorthCarolina 2007) (failure to file federalincome tax returns).


Noting that the judge had the obli-gation to evaluate the legality of aplea agreement, the Commission con-cluded that the impropriety of anagreement whereby the defendant istransferred to another state in contra-vention of public policy is not subjectto a reasonable difference of opinionand found that the judge’s approval ofthe plea agreement reflected a pur-pose other than the faithful dischargeof judicial duties.

Plea negotiationsA judge in NewJersey was publiclyreprimanded for, inaddition to othermisconduct, partic-ipating in pleanegotiations in twocases. In the Matterof Broome, 935A.2d 1153 (New Jersey 2007). In Statev. Palmer, when a defendant expresseda reluctance to accept an offer from theprosecutor, the judge stated: “I under-stand . . . You don’t have to take it. Imean, you know, but, if you were mybrother, I’d say you’re lucky.”Following the judge’s remarks, thedefendant accepted the prosecutor’soffer, and the judge accepted the guiltyplea without ascertaining from thedefendant the factual basis for his plea.The judge admitted that he “appears tohave negotiated” with the defendant inState v. Plaud for dismissal of a chargeof leaving the scene of an accident anda guilty plea to an amended charge offailure to report an accident and a no-point violation. The judge accepted thedefendant’s guilty plea without firstascertaining the factual basis for theplea.

In the presentment accepted by thesupreme court, the Advisory Com-mittee on Judicial Conduct found thatthe judge had “crossed the line into the

realm of participating in plea bargain-ing, a function that is solely for theprosecutor.” The Committee acknowl-edged that the judge’s intent was tohelp the defendants appreciate theirsituations, but emphasized that thecourt rules “simply do not allow himthe latitude to do so.”

Coercing guilty pleasThe Ohio Supreme Court sanctioned ajudge for, in addition to other miscon-duct, “strong-arm measures to coerce aplea agreement,” which the court stat-

ed, “necessarily compromise a defen-dant’s right to trial or a prosecutor’sdiscretion and are antithetical to a fairand balanced criminal justice system.”Disciplinary Counsel v. Parker, 876N.E.2d 556 (Ohio 2007).

While presiding over a jury trial ina domestic violence case, the judgerecessed the jury, stepped down fromthe bench, and told defense counselthat the prosecutor was “about readyto offer” a plea and that the defensecounsel was “about ready to take it.”When the judge returned, he learnedthat the prosecutor had refused tooffer a minor-misdemeanor plea. Thejudge resumed the trial but stopped itagain after about 15 minutes andordered counsel and the arrestingofficer into chambers. He challengedthe prosecutor and police officer, ask-ing whether they were “listening tothe same trial that [he was] listeningto” and whether they knew they were“watching an acquittal.” When thearresting officer said that he was

unwilling to agree to a minor-misde-meanor plea, the judge lost his com-posure and ordered everyone else outof his chambers. Alone with the offi-cer, the judge tried to persuade him toagree to the lesser minor-misde-meanor charge. The judge was visiblyirritated, according to the officer, act-ing short-tempered and agitated andslamming his hands down when hedid not get the answers he wanted.The officer did not relent, and thedefendant was acquitted.

In a second case, the defendant,who was pregnant, wascharged with felony theftof a credit card and mis-demeanor possession ofdrug paraphernalia. At apreliminary hearing, theprosecutor rejected thejudge’s proposal that heoffered the defendant a

misdemeanor plea, insisting that thecase remain a felony. Because herlawyer expected that the grand jurywould not indict, the defendantsigned a waiver of her right to a pre-liminary hearing, which required thejudge to order her bound over to thecourt of common pleas. The judgeinstead rejected the waiver, apparent-ly because he wanted to “help” thewoman through her pregnancy, andheld a preliminary hearing. The judgeconcluded that the state had not metits burden of proof and told the pros-ecution that the defendant was goingto stand trial on misdemeanorcharges. The judge then presseddefense counsel to have his clientplead guilty. At that point, the prose-cution moved to dismiss the chargesfor presentment to the grand jury. Thejudge denied the motion and orderedthe prosecutor to re-file the charge asa misdemeanor. The prosecutor reluc-

Misconduct Related to Pleas (continued from page 3)


Other judges were sanctioned in 2007 forplea practices that coerced defendants’

waiver of constitutional rights.


tantly complied, and the defendantultimately pleaded guilty to a first-degree misdemeanor theft charge.

Practices that coerce guilty pleasOther judges were sanctioned in 2007for plea practices that coerced defen-dants’ waiver of constitutional rights.One California judge gave a massadvisement of constitutional rights tothose seated in the courtroom thatincluded the right to plead not guilty andgo to trial. However, when defendantsappeared individually for arraignmenton misdemeanor alcohol or marijuanacharges, the judge presented them witha choice of diversion (attending AAmeetings after which the charges wouldbe dismissed) or jail time without tellingthem that they had the option of plead-ing not guilty and having a trial. InquiryConcerning Velasquez, Decision andOrder (California Commission onJudicial Performance April 25, 2007)(cjp.ca.gov/pubdisc.htm), petition forreview denied (October 10, 2007).

The Commission on JudicialPerformance found that the judge’s“conduct interfered with the defendants’exercise of one of the most basic andimportant of constitutional rights, theright to jury trial.” The Commissionagreed with the masters’ statement thatdefendants were “given a Hobson-likechoice that did not include the right toplead not guilty and have a trial. Ratherthan ensuring constitutional rights,which Judge Velasquez was obliged todo, Judge Velasquez created an environ-ment in which the full exercise of thoserights was unlikely.”

A discipline case in Washingtonarose from a judge’s practice of requir-ing any criminal defendant who hadtwo pre-trial bench warrants to choosebetween being taken into custody withbail or waiving the right to jury trialand not being required to post bail.The Commission found that, while a

judge may impose bail based on adefendant’s failure to appear in court,the judge’s “practice set up a choicethat may have coerced waivers of theright to jury trial.” In the Matter ofOdell, Stipulation, Agreement, andOrder (Washington State Commissionon Judicial Conduct June 8, 2007)(www.cjc.state.wa.us/).

The admonishment of the judge wasalso for his “inadequate dialogue” dur-ing arraignments that “created theimpression of a mechanical processthat may have undercut the public’srespect for the judiciary.” The judge’sstandard arraignment practice was toprovide each defendant a written formthat identified criminal defendants’fundamental rights, which the defen-dant provided to the clerk when thejudge called his or her individual case.Without inquiring whether the defen-dant had read and understood the formor wished to waive the right to coun-sel, the judge would note the crimecharged and ask the defendant how heor she wished to plead.

The judge also instructed thosedefendants who pleaded guilty to fillout a guilty plea form and wait untilthe end of the calendar. At that time,the judge would re-call the defen-dant’s case, confirm that the defendantstill intended to plead guilty, and, ifso, find him or her guilty and imposesentence without making a finding

that the plea was knowingly and vol-untarily made or inquiring whetherthe defendant wished to make a state-ment or present information to courtprior to sentencing.

The Commission emphasized:

Judges have a basic responsibility toensure that criminal defendants are proper-ly advised of their constitutional and dueprocess right so that they are able to makeinformed decisions regarding their case.This basic duty is dictated by the constitu-tional requirement that waiver of funda-mental rights, such as the right to counselor to a jury trial, and/or the decision toenter a guilty plea may be legally recog-nized only if done knowingly, intelligentlyand voluntarily. In addition, judges have aduty to ensure that guilty pleas are consti-tutionally valid – that they are made vol-untarily, competently and with an under-standing of the nature of the charge andthe consequence of the plea.

The Commission noted that the proce-dures necessary to safeguard funda-mental rights were clearly set forth inthe court rules, statutes, and cases,highlighted in the Commission’s priordecisions, and described in the crimi-nal bench book.

Misconduct Related to Pleas (continued from page 7)

Judicial Conduct ReporterWinter 2008

An index to the Judicial Conduct Reporter is available on the AJS web site at www.ajs.org/ethics/.

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Ex Parte Communications: Recent Cases (continued from page 3)

judge then stated in court that he hadspoken to the trooper and that thetrooper either did not recall the con-versation or recalled it differently fromWloch’s testimony about it. Accordingto Wloch and his attorney, the judgesaid that he had been planning to findWloch not guilty but “because of that”conversation, he was finding Wlochguilty.

Noting the judge’s testimony that hespoke to the trooper to advise him notto tell defendants about the potentialoutcome of a charge, the Commissionstated, “it was improper for respondentto have that conversation while thecase was pending; if he believed it wasnecessary to impart that advice, heshould have done so after the case wasconcluded.” Moreover, the Commis-sion stated, the trooper’s response tothe judge’s communication – eitherthat he did not recall the conversationor that it did not take place as Wlochhad testified – “clearly affected” thejudge’s determination as to the defen-dant’s credibility or, at the very least,the judge’s “conversation with thetrooper created the appearance that hehad obtained, and relied upon, out-of-court unsworn information in makinghis decision in the case, therebydepriving the defendant of the funda-mental right to confront and respond tothe evidence against him.”

Respondent’s insistence that the out-of-court conversation did not influence hisdecision as to the defendant’s credibility isunconvincing. It is difficult to imaginehow it would not influence his decision,since respondent has acknowledged thathe concluded from the trooper’s state-ments that the defendant had lied underoath. The uncontroverted testimony thathe told Mr. Wloch, after finding himguilty, of his conversation with the troopersupports the conclusion that it influencedhis decision, since it is unclear why hewould have referred to that conversation

except to bolster his conclusion that thedefendant was not credible. The patentunfairness of his reliance on the trooper’sstatements is underscored by the fact thatrespondent may have spoken to the wrongtrooper, since it is unclear whether Mr.Wloch had identified the trooper in his tes-timony. Most importantly, the ex parteconversation was improper regardless ofwhether respondent relied on it to convictthe defendant.

The Commission also rejected thejudge’s argument that his disclosurecured the adverse effects of theimproper ex parte communication,stating the disclosure after he had ren-dered his verdict, “obviously had noth-ing to do with protecting the fairnessof the proceedings, but rather appearsto have been a self-serving attempt tobolster his verdict by announcing whythe defendant was unworthy of belief.”

Independent investigationsThe Texas State Commission onJudicial Conduct publicly admonisheda judge who had found a defendantguilty based in part on her independentinvestigation. Public Admonition ofGomez (Texas State Commission onJudicial Conduct June 15, 2007)(www.scjc.state.tx.us/pdf/actions/FY2007PUB-SANC.pdf). A criminal com-plaint was filed in the judge’s courtcharging a local police officer withassault. Over several weeks, the judgesummoned witnesses, including thecomplaining witness and the officer, toappear in her office, where she metwith each individual privately to“gather” information pertaining to theallegations. Subsequently, in a letter tolaw enforcement officials, the judgestated that she was unable to rule onthe case due to lack of evidence andrequested further investigation bypolice officers. In a letter, the sheriff’sdepartment informed the judge that ithad completed its investigation. Based

upon her review of the complaint, theoffense report, and her private discus-sions, Judge Gomez found the officerguilty of assault. Through an attorney,the officer filed an application for awrit of certiorari with the county court,but his attempts to challenge the con-viction were unsuccessful because thejudge never entered a final judgment.The attorney filed a motion for a newtrial that the judge eventually granted,recusing herself from the case.

Independent investigations werepart of a judge’s mishandling of twocivil protection order cases, twodivorce cases, and one case involvinga complaint that a child was abusedand neglected. Disciplinary Counsel v.Squire, 876 N.E.2d 933 (Ohio 2007).The Ohio Supreme Court suspendedthe former judge from the practice oflaw for two years, staying 12 monthson condition that she commit no fur-ther disciplinary violations.

In one civil protection order case,the judge failed to rule the same daythe petition was filed as required bystatute, stating she was going to con-duct an “investigation” and consultwith county children services. Thejudge spoke with a representative ofcounty children services “on at leastseven or eight occasions,” and hadheard information from the child’sgrandmother outside the presence ofthe mother’s attorneys. The courtrejected the judge’s contention that shecould not make a decision due to theneed for investigation, noting that her“so-called attempts at ‘investigations’resulted in ex parte communications.”

In a second case, in which a fatherfiled a petition for an ex parte civilprotection order asking that he and histwo children be protected from hiswife, the judge stated that she neededto conduct an “investigation.” The


judge then called the maternal grand-parents from her telephone on thebench and engaged in an ex parte com-munication about the children and theneed for protection. Rejecting thejudge’s contention that it was properfor her to investigate the allegations,the court emphasized that “Ohio lawdoes not require or permit respondentto conduct her own investigation ofcircumstances underlying the petitionfor a CPO or permit respondent todelay her decision in order to conductor require such an investigation.”

In addition to the improper investi-gations, the judge was found to haveengaged in a pattern of ignoring clearprocedural and substantive require-ments of the law; a pattern of intem-perate, unjudicial conduct; a pattern ofblaming other judges, lawyers, and lit-

igants for the consequences of her fail-ures and actions; “a pattern of rational-izing and revising the facts of pastevents to excuse her own conduct or toblame others by making baseless alle-gations of wrongful or maliciousactions and motives of others; a pat-tern of judicial over-reaction andabuse of judicial power to hold orthreaten to hold lawyers in contemptof court; . . . a pattern of failure orrefusal to recuse herself as judge inproceedings where her impartialityand bias was manifested;” and “sub-mitted affidavits with self-servingstatements and opinions contradictingboth the record of proceedings and theotherwise unrebutted testimony of oth-ers.”

Rejecting the judge’s argument thatshe took many of her actions or inac-

tions out of concern for the childreninvolved in the cases, the court stated“strong feelings do not excuse a judgefrom complying with the judicialcanons and the Disciplinary Rules.”Rejecting the former judge’s argumentthat decisions of judges of “specializedcourts” lie within the discretion of thejudge and should not be subject tosanction, the court noted that JudgeSquire was a judge in a domestic rela-tions court, which is a court that existsin all of Ohio’s 88 counties, and stat-ing “clearly there is no lowering ofprofessionalism standards for ‘special-ized’ courts.” The court held: “To con-clude that domestic relations judgesare unable to hold themselves to a highstandard simply due to the nature ofthe cases over which they preside is anaffront to the domestic relations judges


Ex Parte Communications: Recent Cases (continued from page 9)

2007 Model Code Ex Parte RuleWith some fine-tuning, the 2007 American BarAssociation Model Code of Judicial Conduct retains theprohibition on ex parte communications in Rule 2.9. Forexample, the exception that allows a judge to consult withcourt staff and other judges now cautions judges to make“reasonable efforts to avoid receiving factual informationthat is not part of the record” and not “abrogate theresponsibility personally to decide the matter.”

The prohibition on independent investigations of factswas strengthened by new language that emphasizes that ajudge “shall consider only the evidence presented and anyfacts that may properly be judicially noticed” and by anew comment that indicates the prohibition “extends toinformation available in all mediums, including electron-ic.” The 2007 revisions create a new exception in a com-ment that allows a judge to “consult ethics advisory com-mittees, outside counsel, or legal experts concerning thejudge’s compliance with this Code.”

The reporters’ notes state that the Joint Commission toEvaluate the Model Code “heard a great deal of testimo-ny about therapeutic or problem-solving courts,” butdecided not to create special rules for such courts“because therapeutic courts were too many and varied for

the Commission to devise rules of general applicability.”Instead, a new comment explains that the exception for exparte communications “authorized by law” may permitcertain ex parte communications in those courts where“judges may assume a more interactive role with parties,treatment providers, probation officers, social workers,and others.” In addition, the application section includes anew comment: “In recent years many jurisdictions havecreated what are often called ‘problem solving’ courts, inwhich judges are authorized by court rules to act in non-traditional ways. For example, judges presiding in drugcourts and monitoring the progress of participants in thosecourts’ programs may be authorized and even encouragedto communicate directly with social workers, probationofficers, and others outside the context of their usual judi-cial role as independent decision makers on issues of factand law. When local rules specifically authorize conductnot otherwise permitted under these Rules, they takeprecedence over the provisions set forth in the Code.Nevertheless, judges serving on ‘problem solving’ courtsshall comply with this Code except to the extent localrules provide and permit otherwise.”

throughout Ohio, who go about theirjobs each and every day making deci-sions in the same environment inwhich respondent operated.”

MotivationThe prohibition on ex parte communi-cations applies regardless of the benev-olence of the judge’s motive. Based onan agreed statement of facts and jointrecommendation, the New YorkCommission, for example, censured anon-lawyer judge who dismissed twocharges against a defendant andreduced a third charge based on exparte discussions with an Armyrecruiter and without notice to or theconsent of the district attorney’s office.In the Matter of Ballagh, Determination(New York State Commission onJudicial Conduct November 7, 2007)(www.scjc.state.ny.us). The Commis-sion stated that, although the judge wasmotivated by a desire to give a youngdefendant the chance to straighten outand improve his life by entering mili-tary service, he acknowledges that itwas improper for him to excise the dis-trict attorney from the proceedings andotherwise to circumvent the procedureshe was sworn to uphold.

On or about June 4, 2006, SeanGardner was charged with drivingwhile intoxicated. Gardner was sched-uled to appear before the judge inAugust. Gardner decided to enlist inthe Army, with an induction date of onor about July 19, 2006. The Armyrecruiter advised the judge by tele-phone that Gardner was scheduled toenlist on July 19 and asked that thepending matters against him be accel-erated. The judge re-scheduledGardner’s return date to July 17, with-out notifying the district attorney. OnJuly 17, Gardner appeared before thejudge and indicated that, although hewas scheduled to enlist in the military,an alcohol-related conviction woulddelay his enlistment date. The districtattorney’s office was not present. Thejudge left the courtroom, telephoned

the recruiter, and discussed with himthe effect that a reduction to a drivingwhile ability impaired charge wouldhave upon Gardner’s enlistment. Therecruiter informed the judge that aconviction for any alcohol-relatedoffense would delay Gardner’s enlist-ment for a year from the convictiondate. Returning to the courtroom, thejudge dismissed two charges andreduced a third to a traffic infraction,imposing a fine and surcharge.

The North Carolina Supreme Courtcensured a judge for speaking ex partewith an attorney representing a defen-dant in an action to recover unpaidchild support and striking an orderentered by a different judge finding thedefendant in contempt. In re Royster,648 S.E.2d 837 (North Carolina 2007).The judge argued that because hebelieved that the defendant had nothad proper notice of the previous hear-ings, he was obligated to protect thedefendant’s due process rights bystriking the earlier order and that hisactions were allowed by a statute thatpermits ex parte orders for temporarycustody and support of minor childrenpending the issuance of a permanentorder. The court emphasized that theissue was the judge’s conduct, not hismotives. The court noted that thejudge’s action enabled the defendant toevade his child support obligations andthat he had subsequently vanished.

Providing legal adviceThe Arizona Supreme Court censured anon-lawyer judge for giving legaladvice to a defendant in a civil case inseveral ex parte conversations and fail-ing to disqualify himself. InquiryConcerning Morales, Order (ArizonaSupreme Court January 22, 2007)(www.supreme.state.az.us/ethics/2006_Complaints/06-275%20Final.pdf)A bank filed a lawsuit against a marriedcouple that was assigned to the judge.The judge met with one of the defen-dants and her daughter at the courthousefour times and gave legal advice in

Spanish and English. When the womenasked if they should hire an attorney, hetold them they did not need one.Eventually, the judge entered a judg-ment in favor of the bank. After thedefendant’s attorney filed a motion toset aside the judgment, the judge real-ized he had violated the code of judicialconduct and self-reported his conduct tothe Commission. See also Commissionon Judicial Performance v. Fowlkes,967 So.2d 12 (Mississippi 2007) (publicreprimand and 30-day suspension for exparte communications with and givinglegal advice to a litigant).

Expert opinionIn 2006, the Nebraska Commission onJudicial Qualifications publicly repri-manded a judge for a substantive exparte conversation with a child welfareworker while a case was pending onappeal. In the Matter of Turnbull,Public Reprimand (Nebraska Com-mission on Judicial QualificationsJanuary 27, 2006) (www.supreme-court.ne.gov/professional-ethics/judges/public-reprimands.shtml?sub16)

The judge telephoned NancyThompson, a child welfare worker,about a juvenile case; Thompson hadnot previously been involved in thecase. The judge advised the Commis-sion that he intended to ask ifThompson would be interested in pro-viding a court-appointed evaluationafter the appeals were over and thecase was back in his jurisdiction.However, the conversation developedinto a substantive discussion about themerits of the case. The judge dis-closed the conversation to the parties,including Thompson’s recommenda-tion that the child in the case shouldmaintain a relationship with her aunt.

The Commission concluded that ajudge is not authorized by law toobtain an expert opinion ex parte andthat the judge should have obtained theadvance consent of all the parties andmade a proper record.



The Opperman Centerat Drake Univerity2700 University Ave.Des Moines, Iowa 50311

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PAIDChicago, IllinoisPermit No. 2482

The 21st National College onJudicial Conduct and Ethics

Chicago, Illinois • October 29–31, 2008The Center for Judicial Ethics will hold its 21stNational College on Judicial Ethics on October29–31, 2008 at the Embassy Suites DowntownLakefront, 511 N. Columbus, Chicago, Illinois.

The National College provides a forum for judicialconduct commission members and staff, judges,and judicial educators to learn about and discussprofessional standards for judges and current issuesin judicial discipline. The College will beginWednesday afternoon with registration. Thursdaythrough Friday morning, there will be 6 sessions

with concurrent workshops. Topics under consider-ation include: public comment by judges; revisionsto the ABA Model Code of Judicial Conduct; ethi-cal standards for commission members; ethicalissues for judges and their families; judicial cam-paign conduct; disqualification; sanctions; issuesfor new members of conduct commissions; andissues for public members.

More information will be provided in subsequentissues of the Judicial Conduct Reporter and atwww.ajs.org/ethics.

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