judicial ethics

Reuters recently published a three-part series that appears to be the most comprehensive look at misconduct by American judges ever. Here's the scope of the project: "In the first comprehensive accounting of judicial misconduct nationally, Reuters identified and reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves." The series includes a database of judges who have gotten in trouble in every state.

As a practicing lawyer in a rural area, what is particularly important about this series is that judges in small towns and cities often have little accountability beyond their own moral compasses. There aren't reporters sitting in the courtroom. There aren't a high volume of cases where other members of the public are present. Recently, I was pleased to see that a local village justice (and attorney) was arrested for allegedly stalking his ex-girlfriend and violating orders of protection. But this series shows that may be the exception rather than the rule and having independent judicial conduct bodies with the power to investigate and discipline judges is important.

Here is the second installment of the series:
https://www.reuters.com/investigates/special-report/usa-judges-deals/

Here is the third installment of the series:
https://www.reuters.com/investigates/special-report/usa-judges-commissions/

Pennsylvania Supreme Court Justice J. Michael Eakin has resigned from the court amid an ethics probe into a multitude of sexist, racist and pornographic emails he received. However, his resignation has deepened the skepticism about Pennsylvania's judicial discipline system. The Philadelphia Inquirer's Craig R. McCoy, Angela Couloumbis and Mark Fazlollah report. After Eakin resigned, the Pennsylvania Judicial Conduct Board asked for permission to drop the most serious charge it had brought against Eakin, which would let Eakin keep his $153,000 annual pension.

Eakin was cleared the first time the JCB reviewed the emails. But the JCB began a new investigation when Pennsylvania Attorney General Kathleen Kane (facing her own criminal charges for allegedly leaking grand jury material to the press) raised "additional questions about his email with jokes that mocked women, minorities, immigrants, and others," The Inquirer reports.

The U.S. Supreme Court heard arguments earlier this week on whether former Pennsylvania Supreme Court Chief Justice Ronald D. Castille violated constitutional law when he ruled on a death penalty case in which he had been involved as a prosecutor, Philly.com's Jeremy Roebuck and Jonathan Tamari reports.

Castille, when he was the Philadelphia district attorney, authorized prosecutors to seek the death penalty against Terrance Williams. Later, Castille, as a justice on the Pennsylvania Supreme Court, participated in the ruling rejecting Williams' appeal.

During oral argument, Justice Samuel A. Alito Jr. worried that requiring recusal in such circumstances "could lead to unintended ramifications such as requiring all prosecutors-turned-judges to step aside from cases for any prior involvement, no matter how small," Roebuck and Tamari report.

The Kentucky Supreme Court has ruled that judicial candidates can identify themselves as Republicans or Democrats, but identifying themselves as conservative or liberal "runs afoul of rules to keep politics out of judicial campaigns," The Associated Press' Bruce Schreiner reports.

The court majority further said that a judicial candidate's declaration that he or she is a liberal or a conservative violates the state constitutional requirement that judicial elections be nonpartisan in "'truth and substance.'"

The Philadelphia District Attorney's Office is arguing to the U.S. Supreme Court that a former member of the Pennsylvania Supreme Court did not need to recuse himself from hearing death penalty cases that he signed off on as the city's top prosecutor, The Legal Intelligencer's Lizzy McLellan reports.

In the appeal before the U.S. Supreme Court, former Pennsylvania Chief Justice Ronald D. Castille approved the decision to pursue the death penalty for Terrance Williams, and he heard Williams' appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court reversed a lower court order granting Williams post-conviction sentencing relief.

Pennsylvania Supreme Court Justice J. Michael Eakin is facing misconduct charges because he exchanged emails with images of nude women and jokes that were demeaning to religious groups, women and minorities, The Inquirer's Angela Couloumbis, Craig R. McCoy and Mark Fazlollah report. The Pennsylvania Judicial Conduct Board said those emails had the appearance of impropriety and brought the court into disrepute.

Attorney General Kathleen G. Kane, who is embroiled in her own fight to stay in office, was the one who raised the public profile of the fact that Eakin had exchanged pornographic emails with allegedly racial, misogynistic tones. The board already reviewed Eakin's messages and cleared him in the first review. But the JCB revisited the emails after Kane raised the issue again.

The emails were exchanged between judges, prosecutors, defense lawyers and other law enforcement officials, the Inquirer reports.

West Virginia Supreme Court Justice Robin Davis has rejected a second request to recuse herself from nursing home cases, the Charleston Daily Mail's Andrea Lannom reports. The justice's recusal has been sought because a plaintiff's attorney in a nursing home case helped raise money for the justice's election campaign and purchased a private jet from the justice's husband for $1 million.

Davis said the contributions from the lawyer and his associates were less than one-half of one percent of contributions to her 2012 campaign and she wasn't aware of the price paid for the private jet because it was sold through a broker retained by her husband.

In the first nursing home case in which Davis' recusal was sought, a jury awarded $91.5 million; Davis, who wrote the majority opinion for the West Virginia Supreme Court, reduced the award to $38 million. A second nursing home case is pending before the Supreme Court over what documents are privileged from disclosure.

The Southern Poverty Law Center has filed an ethics complaint against Alabama Supreme Court Chief Justice Roy Moore. Moore, a conservative jurist who already was replaced once as chief justice because he refused to remove a monument depicting the 10 Commandments from a judicial building, stated in a letter that a federal judge's decision striking down Alabama's ban on same-sex marriage could lead to the legal recognition of polyamorous or incestuous marriages. Moore also said he will continue to recognize Alabama's ban. The SPLC said Moore's statement did not conform to the canons of judicial ethics.

Pennsylvania Supreme Court Justice Seamus P. McCaffery has been suspended by his own colleagues, among other reasons, because of allegations he sent pornographic emails to other governmental officials, because he allegedly tried to blackmail a fellow justice and because he may have tried to "exert influence over a judicial assignment on the Philadelphia common pleas bench outside the scope of his official duties," the Pittsburgh Post-Gazette reports.

Justice J. Michael Eakin says that McCaffery tried to get Eakin to intercede with Chief Justice Ronald Castille to stand down on the email issue in exchange for not releasing emails that were sent to Eakin's private email account in 2010.

When working for The Legal Intelligencer, I broke the story that McCaffery contacted Philadelphia Court of Common Pleas leaders about a judicial assignment. I wrote at the time: "According to several knowledgeable sources in the Philadelphia court system, Pennsylvania Supreme Court Justice Seamus P. McCaffery contacted a high-level Philadelphia Court of Common Pleas leader about civil cases in 2012. Two of the cases, sources said, involved a law firm that had previously paid a referral fee to McCaffery's spouse."

And the Philadelphia Inquirer first reported that McCaffery's wife and chief aide, Lise Rapaport, had been paid 19 referral fees from law firms. The court said in its order that McCaffery "may have acted in his official capacity to authorize his wife to accept hundreds of thousands of dollars in referral fees from plaintiffs' firms while she served as Justice McCaffery's administrative assistant." Also at issue for McCaffery are the allegations that he contacted a Philadelphia traffic-court official in connection with a traffic citation issued to his wife.

Castille said in his concurrence to the order that McCaffery sent an email depicting a "woman in sexual congress with a snake" that may violate Pennsylvania's obscenity law. Castille also called McCaffery a sociopath "who has the personality traits of not caring about others, thinking he or she can do whatever is in that person's own self-interest and having little or no sympathy for others."

In dissent from the decision to suspend McCaffery, Justice Debra Todd said "even a justice is entitled to due process" and the matter should be referred to the separate constitutional court, the Court of Judicial Discipline.

The Republican State Leadership Committee, a national Republican group, is planning on spending $5 million on judicial races this year, reports Joe Palazzolo in the Wall Street Journal: "The GOP committee’s president, Matt Walter, said his organization’s main opponents are labor unions and groups of personal-injury lawyers, who have long contributed to state judicial races." The heavy spending is prompting judges to campaign more in order to hold onto their seats, Palazzolo further reports, which means that judges are forced into the "ethically tricky process of soliciting big money and stumping for votes from constitutents they might face in court."

The trend of outside money being given to judicial campaigns has accelerated since the U.S. Supreme Court struck down federal limits on corporate and union campaign spending, WSJ further reports.