Should A Judge Attend Protests?

Shortly after I was appointed a judge in 1984, I was in Washington DC visiting a brother. We were walking along and came upon a protest in front of the South African embassy against that country’s apartheid policies. I was really tempted to join but felt that as a newly appointed judge discretion might be the better part of valor. To this day I occasionally think of that moment and whether I made the right moral decision. And then of course there is the judicial ethics question. My guess (which could be wrong) is that for Canadian judges it is easy. No going out and joining protests. There probably are states where a judge could get in ethical trouble. The answer about where to draw the line isn’t always easy.

 

From the California Courts Newsroom

July 22, 2020 | Merrill Balassone

A California Supreme Court committee today published guidance for judges who want to attend public demonstrations and rallies, citing a slate of ethical issues for judges to consider before participating.

The opinion, issued by the Supreme Court Committee on Judicial Ethics Opinions (CJEO), said judges may feel a moral obligation to support causes of racial justice and equality in their communities by participating in public demonstrations and rallies.

At the same time, judges have a duty to promote the public’s confidence in judicial impartiality.

CJEO Formal Opinion 2020-014 concludes a judge’s participation in a public demonstration or rally is not prohibited in all circumstances and lists the following restrictions:

  • Judges cannot attend demonstrations or rallies if their presence might undermine the public’s confidence in the judiciary;
  • Judges cannot attend such events that relate to a pending case, or to an issue likely to come before the courts;
  • Judges cannot participate if likely to violate a law, for example violating a curfew.
  • Judges cannot create the appearance of speaking on behalf of, or lending the prestige of office to, a political candidate or organization, or allow their participation to interfere with the proper performance of their judicial duties.
  • Judges must remain vigilant and should be prepared to leave if staying at the demonstration or rally might result in a violation of their ethical duties or interfere with judicial obligations.

“Judges who have devoted themselves to the cause of justice from the bench may feel compelled to show their support for racial justice and equality by attending or speaking at demonstrations or rallies, often just outside of the courtroom doors. The committee wants to provide bench officers with a practical framework, firmly grounded in the canons, for what they can and cannot do ethically either by going to a demonstration or rally or by making a public statement about these important matters,” said Judge Erica Yew, a member of the committee who currently serves on the Santa Clara County Superior Court.

Because of the ethical issues that might arise by attending and participating in a public demonstration or rally, the opinion suggests judicial officers instead consider writing a public statement about matters relating to racial justice and equality, as California Chief Justice Tani G. Cantil-Sakauye (link) and the Supreme Court of California (link) have done. Since judges can maintain control of the substance and tone, a statement that addresses issues of racial justice and equality may present fewer ethical risks than participating in a public demonstration or rally on those same issues.

Confronting Racism

Confronting Systemic Racism in Trial Courts

 


  1. This Thursday  Jul 23, 2020 2:00 PM – 3:15 PM CDT

Show in My Time Zone


Our nation is hurting. Outcries for racial equality are heard and seen around the globe. Institutional racism and discrimination exist throughout our society, including in justice systems and trial courts. Systemic inequalities and injustices can be manifested either directly or indirectly. All are harmful and unfair. Understanding and identifying systemic racism is an essential first step in eliminating these persistent inequalities and injustices. By identifying these norms and practices, PJs, CEOs, and their leadership teams can begin the process of reform. Equal justice under law requires it. The dignity of the individual and the legal, civil, and moral equality of all people demands it, whatever the color of someone’s skin. This 75-minute webinar is the first in a two-part series. It will raise awareness about these issues in trial courts, increase understanding of research that can serve as a framework for reform, and begin a dialogue for change. What is systemic racism and where might it exist in trial courts? Why have we failed to date? How do we identify problem areas? What are courts doing now to mitigate its affects? What is the role of PJs and CEOs in beginning the dialogue and preparing for court reform? The second webinar on August 20 will offer additional ideas and practical tools to help court leaders act and plan next steps. It will provide PJs, CEOs, and court leadership teams with ideas for critically assessing the court system, listening to and involving court users, justice partners, and stakeholders, and implementing court reform. Whether you are a NAPCO member or not, you are invited to join this timely online conversation. It is the second in a monthly series of complementary webinars regarding trial court leadership and COVID-19. To register https://register.gotowebinar.com/register/6617713505766097935

Free Speech For Judges?

The American Judges Association has long held that the immigration judges of the United States deserve our support. They have very high caseloads and are in a rather untenable position of being under the Department of Justice……in effect they work for the prosecutors who appear before them. That untenable position is now taking the form of a lawsuit.

On July 1, the National Association of Immigration Judges (NAIJ) sued the Department of Justice (DOJ) in the Eastern District of Virginia, alleging that new DOJ rules about public statements by immigration judges impose unconstitutional restraints on their right to free speech. NAIJ is a union representing immigration judges employed by the DOJ.

 

The policies NAIJ is challenging were implemented by the DOJ’s Executive Office for Immigration Review (EOIR). The first order, issued in 2017, required judges to obtain preapproval before speaking at an event in their personal capacity, and prohibited Deputy Chief Immigration Judges and Assistant Chief Immigration Judge from doing so at all. In 2020, the EOIR replaced this policy with a more restrictive measure, categorically preventing immigration judges from speaking in their personal capacity about immigration and EOIR programs.

 

In this moment, the plaintiffs note, the rules prohibit immigration judges from speaking about how Covid-19 has impacted immigration courts and those who are currently detained. Immigration courts largely remained open amid the pandemic, though some courts closed briefly for cleaning before reopening after court employees tested positive for Covid-19.

Examining Our Own Implicit Bias About Gender

How reporting domestic violence can work against women in family court. 

The bitter custody battle in Texas between Tara Coronado and Ed Cunningham over the couple’s four children is illustrative of a dynamic women’s rights advocates say is both prevalent and unfair. Women who allege they are victims of domestic violence often are viewed by judges and court-appointed doctors as angry and aggressive, traits that count against them in the murky calculus that governs custody determinations. The case also highlights many of the flaws inherent in the legal and medical standards that are supposed to help judges make reasoned choices about the lives of parents and their children. In collaboration with Longreads, Kathryn Joyce has our story. View THE MARSHALL PROJECT‘s story.

A Question On Voir Dire That You Need To Anticipate

Can you support the Black Lives Matter movement and serve on a jury?

From the Marshall Project:

Prosecutors around the country have taken to asking potential jurors if they support the aims of the BLM movement as a stand-in for their views about race and policing.  If the answer is “yes” the prosecutor then moves to remove that juror from the criminal trial.  Defendants have challenged some of these strikes and appeals courts around the country have come to different conclusions about whether they violate Supreme Court precedent outlawing discrimination against jurors.  Now pending in California is another test case, involving a double-murder conviction.  TMP’s Abbie VanSickle has our story.

Is There Drift In Your Courthouse?

Elizabeth Nevins-Saunders (Hofstra University – Maurice A. Deane School of Law) has posted Judicial Drift (American Criminal Law Review, Vol. 57, No. 2, 2020) on SSRN. Here is the abstract:

Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get filtered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on findings of a five-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.

What To Do About Judges?

The vast majority of judges are honorable people dedicated to doing the right thing. And then there are the very few who give all the rest of us a bad name, as illustrated by a story from Reuters. In the past dozen years, state and local judges have repeatedly escaped public accountability for misdeeds that have victimized thousands. Nine of 10 kept their jobs, a Reuters investigation found – including an Alabama judge who unlawfully jailed hundreds of poor people, many of them Black, over traffic fines.

By MICHAEL BERENS and JOHN SHIFFMAN in MONTGOMERY, ALABAMA

Filed  June 30, 2020, noon GMT

Judge Les Hayes once sentenced a single mother to 496 days behind bars for failing to pay traffic tickets. The sentence was so stiff it exceeded the jail time Alabama allows for negligent homicide.

Marquita Johnson, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were cast into foster care while she was incarcerated. One daughter was molested, state records show. Another was physically abused.

“Judge Hayes took away my life and didn’t care how my children suffered,” said Johnson, now 36. “My girls will never be the same.”

Fellow inmates found her sentence hard to believe. “They had a nickname for me: The Woman with All the Days,” Johnson said. “That’s what they called me: The Woman with All the Days. There were people who had committed real crimes who got out before me.”

For the full story:

https://www.reuters.com/investigates/special-report/usa-judges-misconduct/