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LGBTQ+ Judges / Past Newsletters  / November 2017

November 2017

POSTED ON November 15, 2017 In Past Newsletters

Hello,

As we embark on the season of holidays, I hope that everyone is doing well, gets to go to all the parties you desire and finds quality time with those who mean the most to you. In the midst of it all, remember to take care of you.

We are trying something new.  The National LGBT Bar Association has undertaken the distribution of this Update on an experimental basis, agreeing to maintain confidentiality consistent with our manner and limits of distribution.

All the best,

Judge Loyola and his spouse, Leonard Herman, are pictured to the lower right. Thank you, Judge Loyola.

 

 

 

 

JUDGE FEINMAN TAKES THE OATH

On October 18th Judge Guido Loyola (NY) shared these photographs taken that day in Albany, New York, when Associate Judge Paul G. Feinman, our former President, took the oath of office to begin service as a member of the New York Court of Appeals. According to Judge Loyola, “His swearing in at the Court of Appeals. Also, the reception at the Governor’s mansion.”  He recalled that Justices Elizabeth Garry, Rosalyn Richter and Michael Sonberg were among members of the Association present, adding, “Hope I didn’t overlook anyone else. The scene at the reception was crowded, hectic and lively in the Guv’s House.”

Sounds like a great party for a great jurist.

Other members of the Association were present to witness the momentous occurrence.

FEINMAN RECOGNIZED BY NATIONAL LGBT BAR ASSOCIATION

The November Edition of the National LGBT Bar Association’s newsletter (published November 16) includes:

Spotlight Feature: Judge Paul Feinman

Governor Cuomo made history this past June when he announced the appointment of Judge Paul G. Feinman to the New York Court of Appeals, the state’s highest court. Judge Feinman is the first openly gay judge to be appointed to that position. He has held a number of leadership roles in various associations, including as President of the International Association of LGBT Judges. Judge Feinman is also a longtime member of the LGBT Bar. To learn more about Judge Feinman, visit our website now!

DIVERSITY ON THE BENCH IN JAPAN FROM LGBT PERSPECTIVE: SHUSAKU TATARA

Upon recommendation of our President, Judge Daniel Anders (PA), former Judge Shusaku (Shu) Tatara has authorized the sharing of his thesis Diversity on the Bench in Japan From LGBT Perspective.  It is attached.  This work culminates his stay in the United States that includes maintaining being a member of the Association in good standing since Ann Butchart (PA) connected him to the Association in July of last year.  November 2nd, he updated me on his current doings: “I have been in Japan since the end of August. I am now in the process of returning to the bench. I submitted the application form last month and wait for the Supreme Court to schedule the interview and medical checkup. I am not fully sure when I will return to the bench but, I guess April in 2019 would be most possible. I will keep you posted!!” Judge Tatara has seven years of prior service as a judge in Japan. He is seen above with Judge J. Gary Cohen (BC).

NATIONAL CENTER FOR STATE COURTS’ CENTER FOR JUDICIAL ETHICS

Maryland’s State Law Library distributes to Maryland judges the latest updates on Judicial Ethics from the National Center for State Courts’ Center for Judicial Ethics.  I will try to include what’s most recent with each update.

Update from the NCSC Center for Judicial Ethics:  November 15, 2017 (42)

 

* * *

The Texas State Commission on Judicial Conduct has publicly reprimanded Judge Theresa Hawthorne for (1) communicating ex parte with the judge presiding over her nephew’s criminal case and voluntarily testifying as a character witness on her nephew’s behalf at his probation revocation hearing and (2) shaming and reprimanding jurors who found a defendant guilty.  Public Reprimand of Hawthorne (November 9, 2017) (http://www.scjc.state.tx.us/media/46579/honthawthorne17-0189-dietalpubrepwebsite.pdf).

(1) On September 12, 2014, in an e-mail to Judge Darnell about her nephew’s criminal case pending in his court, Judge Hawthorne requested that Judge Darnell withdraw the warrant for her nephew’s arrest.  The county criminal district attorney’s office has no record of being copied on the e-mail.

According to Judge Darnell, on September 24, Judge Hawthorne called him and asked if he would set a bond on the motion to proceed to adjudicate that had been filed in her nephew’s case on August 24.  During the conversation, Judge Hawthorne stated that she was allowed to represent members of her family under an unspecified rule.

On June 30, 2015, Judge Hawthorne sent a second e-mail to Judge Darnell requesting that he and the assistant district attorney agree to remove the warrant.  The e-mail was forwarded to the assistant district attorney the next day.

On August 24, 2016, Judge Hawthorne testified on her nephew’s behalf at a probation revocation hearing before Judge Darnell.  She was not subpoenaed to testify.  During her testimony, the judge referenced her judicial position 3 times and offered her opinion as to her nephew’s character.

In her responses to the Commission, the judge stated that she and Judge Darnell did not communicate with each other without the assistant district attorney being involved, denied that she ever had any oral conversation with Judge Darnell about her nephew’s case, and acknowledged that she was not subpoenaed to testify on her nephew’s behalf at his revocation hearing.

(2) In October 2016, Judge Hawthorne presided over a criminal jury trial.  After a brief deliberation, the  jury rendered a guilty verdict and assessed a prison sentence of 99 years.  After they rendered their verdict, the judge met with the jurors.

According to 1 juror, the judge made the following comments to the jurors:

  • “Quite frankly, I am disturbed.  I am disturbed by the way you came back with such a harsh verdict and sentence for this man’s life in such a short time.  Did you even discuss the details of the case at all?”
  • “I can tell y’all.  If I had been a juror on this case, it would have been a hung jury.”
  • “I definitely would have wanted to hear from the defendant’s mother.”

 

A second juror said the judge told the jurors:

  • She “could not believe that we found the defendant guilty.”
  • She thought “we were extremely harsh.”
  • She “accused us of not deliberating.”
  • She told us that we were “too quick to judge the defendant.”
  • She asked us “how could we have a good conscience about our decision.”
  • She “would have liked to have heard from the defendant’s mother.”

According to the foreperson, the judge made the following comments to the jurors:

  • Their “punishment was too harsh.”
  • She “did not believe the victim was raped at all.”
  • That if any of the jurors “are ever selected as a juror again, that we need to spend more time going over the facts, and that we should be sure that we give the defendant a fair decision on his or her being guilty, because she thought we convicted a [sic] innocent man.”

The judge acknowledged that she told the jurors that she would have found the defendant not guilty, but denied she made the other comments attributed to her by the jury.  The judge stated that the jurors became shocked and angered when they heard she would not have found the defendant guilty.  The judge denied that she shamed or reprimanded the jury for their verdict.  She stated that she regrets “that all of this happened” and that she “never intended to upset anyone,” but she could not lie to the jury when they asked her what she thought of the case.

* * *

The Texas Commission has publicly reprimanded Judge Luis Aguilar for his treatment of prospective jurors and his use of the contempt power against lawyers.  Public Reprimand of Aguilar and Order of Additional Education (November 6, 2017)

(http://www.scjc.state.tx.us/media/46577/honlaguilar15-0984-dietalpubrepoaewebsite.pdf).  The Commission also ordered the judge to take 8 hours of additional education at the college for new judges, including sessions on the role of a judge, who is in charge of the courtroom, recusal and disqualification, listening, ethics in and out of the courtroom, and case management and to receive 2 hours of instruction on contempt from a mentor.

Between July 29, 2015, and December 12, 2016, the Commission received 9 complaints about Judge Aguilar.  The Commission also initiated its own complaint based on media articles and uncovered many others.

(1) Multiple individuals complained that the judge subjected them or others to extremely impolite and disrespectful treatment.  Many of the complaints relate to his treatment of prospective jurors.  Several reference a lecture delivered by the judge on the importance of jury duty that left complainants feeling disrespected and attacked for their supposed effort to get out of jury service.  The Commission received a sworn statement from a sexual assault survivor who, after identifying herself as a survivor in response to voir dire questioning, felt shamed by the judge for trying to get out of jury duty.  An attorney stated the judge made a prospective juror cry because he did not believe her assertion that she had a limited understanding of English and questioned her about the disability benefits received by her family.  The judge told the woman:

What I am telling you is that in this great country of American, we take care of the disabled.  This – freedom is not free.  This is one of the few things this country asks our citizens to do, come up here and pass judgment.  And in return, we send you disability checks.  And you turn around and come up to me and tell me, I don’t want to serve because I do not understand.  You understand perfectly.  Your English is no problem.  Outside in the hallway, ma’am.  Now.  Now.

A prospective juror stated that the judge treated a woman in the jury pool with disrespect and informed her that she could file a complaint with the Commission, but that such grievances did not concern him because he knew how to handle them.

During the voir dire process in a capital murder case, several prospective jurors indicated that they could not on religious grounds sit in judgment of the defendant.  The judge responded:

Let me – did you people understand that question.  Because it seems to me you pass judgment on people every single day.  Single ladies, let see your hands.  Ever been asked out before in your life?  Did you not pass judgment?  “He’s kind of ugly.”  ‘Not my type.”  “Doesn’t have a car.”  Did you not pass judgment on another human being?  Now, look, ladies, I’m not saying it’s going to be you know, having Smiling Jack pick you and take you to the bus stop, have a nice dinner, McDonald’s, come back home.  Did you or did you not pass judgment on him?  Did you understand the question?  Can you judge another person?   Stranger walks up to you, “I don’t want to talk to you.  I don’t want to talk to you.”  Did you not pass judgment?

The judge questioned 1 juror using similar arguments.

The judge contended that the complaints about his demeanor were politically motivated or brought by people who do not like him.  The judge denied ever treating a juror or prospective juror with a lack of patience, dignity, or courtesy.  He expressed his serious concerns regarding El Paso residents’ shirking their duty with respect to jury service and his determination not to allow that in his court.  The judge explained that it has been his practice after the jury has been selected and removed from the courtroom to give a speech to the remaining individuals regarding the importance of jury duty.  During his appearance before the Commission, the judge represented that, in light of the numerous complaints, he has ceased the practice and will no longer give this lecture.

(2)(a) When attorney Mario Cisneros failed to appear for a scheduled status hearing in the judge’s court on June 25, 2015, the judge ordered Cisneros to appear on June 29 to show cause why he should not be held in contempt of court for failing to appear.  The order allowed for local counsel to appear in Cisneros’ stead.  Cisneros arranged for Eduardo Cadena to appear on his behalf at the show cause hearing.  At the hearing, the judge refused to allow Cadena to represent Cisneros, held Cisneros in contempt of court for his failure to appear, and issued a bench warrant for his arrest.

On November 6, the Court of Appeals granted Cisneros’ petition for a writ of mandamus and rendered void the bench warrantst based on the judge’s failure to provide Cisneros “constitutionally sufficient notice of the June 29 hearing or the contempt allegations.”  The appellate court noted that the judge’s order setting the case for a show cause hearing did not provide Cisneros any notice that he was accused of contempt or subject to being punished, did not even include the word “contempt,” did not allege in what manner Cisneros has committed contempt, and did not make Cisneros’ attendance at the hearing mandatory.

(b) Houston attorney Kristy Gabrielova retained Marcelo Rivera to serve as local counsel for the plaintiff at a hearing in the judge’s court on February 4, 2016.  Rivera mistakenly went to the wrong courtroom and failed to appear in the judge’s court at the scheduled time.  The judge immediately issued an order directing Gabrielova to appear before him on February 9 to show cause why she should not be held in contempt.  In a letter the next day, Gabrielova explained what had happened and included an affidavit from Rivera.  Gabrielova also provided a letter from her physician stating that she could not travel due to her pregnancy and that she was scheduled for a caesarian section delivery on April 18.

On February 5, Gabrielova’s client Midland Funding moved to dismiss its claims and filed a non-suit with the court.  Despite the notice of non-suit, the judge issued another show cause on April 7, directing Gabrielova to appear in his courtroom on April 21, 3 days after her scheduled surgery.  Because Gabrielova was already on maternity leave and the order was sent to her office, she never received notice of the hearing.  However, her co-worker, Brian Staley, sent the judge a letter notifying him that Gabrielova was on leave under the Family Medical Leave Act and would not be able to appear for the show cause hearing.  On April 27, the judge sent a letter to Gabrielova’s office advising her that a show cause hearing would proceed on May 26 with or without her and that “the full range of punishment” would be considered.  Responding to the judge’s letter the same day, Staley again explained that Gabrielova was on maternity leave and would not be able to attend the hearing.  Gabrielova did not appear on May 26, and on June 1, the judge held her in contempt of court and issued a bench warrant for her arrest with a $2,500 bond.

Despite the non-suit filed by Midland Funding on February 5, 2016, the judge set the case for a status hearing on September 22.  When no one appeared, the judge issued another show cause order to Gabrielova requiring her to appear on October 13.

On October 7, Gabrielova petitioned the court of appeals for a writ of mandamus compelling the judge to dismiss the underlying case and for an emergency stay.  The court of appeals granted the motion for a stay the day it was filed and granted the petition for a writ of mandamus on December 20.  The Gabrielova court noted that its prior opinion in Cisneros “set forth the due process requirements in detail,” but the judge’s “failure to afford another attorney practicing in his court with due process before issuing a bench warrant for counsel leads us to conclude that these requirements must be reiterated.”  After restating the principles and concepts originally explained in the Cisneros matter, the Gabrielova court again described the measures the judge was required to take before compelling Gabrielova to attend a show cause hearing:  “[Judge Agquilar] was required to take steps to cause a true copy of the show cause order to be delivered to [Ms. Gabrielova] in person.  In the absence of personal service of the show cause order, [Mrs. Gabrielova] was not required to attend the show cause hearing nor can she be held in contempt for failure to do so.”  Consistent with the holding in Cisneros, the Gabrielova court held that the judge’s failure to provide Gabrielova with constitutionally sufficient notice of the May 26 hearing rendered the June bench warrant void.  With respect to the judge’s order requiring Gabrielova to appear on September 22 “even though Midland Funding had non-suited the underlying cause more than six months earlier,” the court of appeals held that the judge could not proceed with the contempt proceeding because he failed to provide Gabrielova with constitutionally required notice of the hearing.

(c) On February 23, 2016 Daniel Anchondo failed to appear for his client’s arraignment.  That day, the judge issued an order directing him to appear on February 29 to show cause why he should not be held in contempt of court.  At the show cause hearing, noting Anchondo’s repeated tardiness, the judge held Anchondo in contempt and fined him $200 from the bench, but did not specify a date certain for payment of the fine or issue a written order reflecting his ruling.  Anchondo attempted to pay the fine, but the district clerk’s office would not accept payment because the judge never issued a written order.

On March 3, the judge ordered Anchondo to appear on March 9 to show cause why he should not be held in contempt for failure to pay the fine.  Anchondo retained Frank Guzman who filed a motion to recuse the judge and a motion for a de novo hearing on March 7.  At the hearing on March 9, the judge refused to consider the recusal motion, stating it was “untimely,” and proceeded with the show cause hearing.  He held Anchondo in contempt for failing to pay his fine but deferred imposition of a sentence.

On March 10, the judge referred the recusal motion and the motion for a de novo hearing to the presiding judge, and the presiding judge assigned Senior Judge Manuel Banales to hold a de novo proceeding in the matter.  Following a hearing, Judge Banales concluded that the judge committed numerous legal errors, set aside as void the judge’s findings and orders of contempt, and discharged Anchondo with respect to the allegedly contemptuous conduct.  Judge Banales noted:

Had Judge Aguilar reviewed §21.002(d) . . . prior to and during these contempt proceedings, he would have known and realized that, as soon as he held [Anchondo] in contempt, he was required to notify [the] Presiding Judge . . . and to remove himself from presiding in the subsequent contempt proceedings . . .  I find and conclude that all findings and Orders of contempt by Judge Aguilar . . . are void as a matter of law and must be set aside.

Judge Banales also described Judge Aguilar’s finding that Anchondo’s recusal motion was untimely as “plainly wrong.”  Judge Banales also emphasized the “importance of a written Order of Contempt,” illustrated by the inconsistencies and contractions between Judge Aguilar’s successive orders on February 29, March 3, and March 16.  Judge Banales noted that the March 16 order required payment on March 1, which “created an impossibility for compliance.”

Judge Banales’ opinion closed with the following:

The power of contempt is both awesome and awful.  Used properly, it can be applied to ensure that proceedings are conducted with dignity and in an orderly manner so that justice may be done.  Used improperly, it abuses the authority of the court in a way that cases a negative light upon a judicial system that we revere.  Regrettably, Judge Aguilar’s use of contempt in this proceeding was ill used.

(d) A discovery dispute arose in an age discrimination and retaliatory discharge lawsuit brought by a former employee of Wal-Mart.  At the plaintiff’s request, the judge ordered Wal-Mart to comply with her discovery request and denied Wal-Mart’s motion for a protective order.  Rather than immediately complying with the order, Wal-Mart moved for an extension of time, and the judge issued an order to Wal-Mart’s counsel, Melissa Judd and Payal Garehgrat, to appear on March 25, 2015 to show cause why they should not be held in contempt of court for failing to comply with his order.  Following the show cause hearing, the judge held the defendants in contempt and assessed them over $20,000 in fines and attorney’s fees.  The court of appeals granted Wal-Mart’s petition for a writ of mandamus on the grounds that the judge had failed to comply with the law in his handling of the contempt proceedings and ordered the judge to vacate the contempt orders and return to Wal-Mart any fines already paid.

(e) During a status hearing on December 1, 2015, the judge became displeased when he learned a probationer’s car keys had been confiscated by his probation officer because the terms and conditions in the judge’s copy of the court’s order did not include a prohibition against driving.  The judge summoned the probation officer, David Abogado, to his courtroom to explain his actions.  Abogado arrived in the judge’s court as directed, accompanied by his supervisor.  Abogado explained that his copy of the terms and conditions of probation included a restriction on the probationer’s driving and that he could not explain the difference between the documents.  The judge accused Abogado of changing the terms and conditions of his order and of stealing the probationer’s property and threatened to throw both Abogado and his supervisor in jail.  He then ordered the 2 men to remain confined in the jury box until further notice and, according to several witnesses, ordered his bailiff to confiscate their personal belongings.  The men remained in the jury box for 1 to 2 hours before being excused, at which time the judge ordered them to appear for a show cause hearing the following day.  At the hearing on December 2, the judge did not hold Abogao or his supervisor in contempt.  However, he did order Abogado to file monthly reports on all of his probationers in the judge’s court for approximately 7 months.

(f) In a status hearing in a civil case on September 24, 2015, the attorneys, Dorothy Lawrence and Troy Bolen, notified the judge that the parties were close to reaching a settlement and had agreed to continue the hearing.  Lawrence received an order from the judge on September 25 directing her to appear for a status hearing on September 21.  She then received an amended order on September 26 requiring her to appear on September 28.  The order stated that her presence was mandatory and that local counsel would not be able to appear in her stead.  Because of a previously scheduled obligation, Lawrence was not able to be in El Paso on September 28.  She provided the court with copies of the contract evincing her existing obligation as well as her flight schedules and arranged for Bolen to appear before the judge to explain and to notify the court that the parties had reached an agreement and would file a Rule 11 agreement that afternoon.  At the hearing, the judge expressed his extreme displeasure about Lawrence’s failure to appear and announced he was issuing a bench warrant for her arrest.  When Bolen told her, Lawrence immediately contacted the judge’s office and confirmed that the judge intended to issue a warrant for her arrest.  Lawrence monitored the situation and called the judge’s office repeatedly over the next week and was informed that the issuance of a warrant was imminent.  Ultimately, the judge did not issue an arrest warrant.

(g) The county public defender was appointed to represent a defendant at his magistration.  At the arraignment, the judge appointed other attorneys to serve as first and second chairs, relegating the public defender to third chair.  The judge also issued an order that only the first chair attorney could file motions in the case.  The chief public defender, Jaime Gandara, filed a motion to withdraw from the case.  The judge issued a show cause order directing Gandara to appear and explain why he should not be held in contempt of court for filing the motion when the court’s order prohibited anyone but the first chair attorney from submitting filings in the case.

On June 11, in lieu of a formal show cause hearing, the judge met in his chambers with Gandara and Enrique Moreno.  They agreed that the judge would not pursue contempt proceedings if Gandara would write a letter to the employees of the public defender’s office acknowledging his mistake and apologizing to the judge.  Gandara distributed a letter to his employees in which he apologized to the judge, and the matter was resolved.

(h) After experiencing what he believed to be prejudicial and inappropriate treatment from the judge in previous cases, John Needham filed a motion to recuse him from a criminal case on September 26, 2016.  The judge failed to grant the motion or refer the matter to the presiding judge within 3 days as required by the Texas rules of civil procedure.  Moreover, he proceeded with the defendant’s arraignment on September 26 and held status hearings on October 11 and October 19 despite the pending recusal motion.

The judge assured the Commission that he is aware of the legal requirements under the rules of civil procedure for handling recusal motions.  He stated that any delay in referring a recusal motion to the presiding judge or continuing with the proceedings despite a pending recusal motion was because he was unaware that the motion had been filed as the filing party did not provide him with a courtesy copy.

In his written responses, the judge stated he has taken remedial action to ensure that the notices he now issues for show cause hearings meet the applicable procedural requirements.  During his appearance before the Commission, the judge represented that he has decided to no longer initiate contempt proceedings against attorneys who fail to appear for show cause hearings.

* * *

In a press release, the Massachusetts Commission on Judicial Conduct stated that it has admonished a judge for “treating a party who appeared before the judge discourteously and for otherwise behaving in a manner that was unbecoming a judicial officer and that brought the judicial office into disrepute.”  The judge agreed to be monitored by the Commission and meet with a mentor judge for 1 year.

* * *

The New Jersey Advisory Committee on Judicial Conduct has recommended that Judge Lilana DeAvila-Silebi be removed for using her judicial office to intercede in her former intern’s custody dispute and giving false testimony during the disciplinary proceedings “to conceal from this Committee and ultimately the public her ethical breaches” (http://judiciary.state.nj.us/pressrel/2017/lilianapresentment.pdf).

The judge received an ex parte telephone call on her personal cell phone in which the caller claimed to represent Vivianne Chermont, the judge’s former intern, and sought the judge’s intervention with the police department concerning Chermont’s parenting time dispute.  The judge called the police department, claimed she was on emergent duty, and asked the police to accompany Charmont to get her child from the father’s house.  To induce the police to act, the judge misrepresented that the caller with whom she spoken had filed an emergency application and that the judge had seen the order granting Chermont custody.  The Committee found that the judge’s false statements rendered the judge’s abuse of the judicial office “significant.”   The call had not, in fact, originated from Chermont’s attorney but from Chermont herself, but, the Committee found that whether Chermont or someone on her behalf placed the call was immaterial because the judge’s failure to confirm any of the information allegedly provided during the 9-minute call, her failure to retain any notes memorializing the discussion, her inability to cite to a single order providing for the “emergent” relief she obtained for Chermont, and her failure to enter an order or issue a memorandum memorializing her decision “so exceeded the bounds of legitimate judicial conduct as to evince Respondent’s intentional abuse of the judicial office for Ms. Chermont’s benefit.”

The Committee stated that, if the judge’s misconduct been confined to the call to the police department, significant public discipline would have been warranted, but not removal.  However, the Committee stated, the judge’s “demonstrable and pervasive dishonesty during these ethics proceedings, which include a manufactured defense, signifies a complete departure from the honor and integrity demanded of every jurist and essential to the continued viability of the judicial office.”  The Committee found that the judge’s “false swearing permeated the entirety of these proceedings” and concerned the circumstances of the telephone call and the judge’s “claimed justifications for inserting herself into Ms. Chermont’s matter.”  The Committee concluded there was “no reasonable correlation . . . between Respondent’s claimed approach to what she characterized as an ‘emergent’ matter concerning possible domestic violence and the approach mandated by the Prevention of Domestic Violence Act and the Emergency Duty Procedures Manual.”  The Committee found that the judge’s “absolute disregard for these emergent procedures and her attempt in this proceeding to manipulate them for her own advantage, i.e., as part of a manufactured defense to these ethical charges, further evinces Respondent’s knowing and purposeful abuse of the judicial office and underscores the extent of Respondent’s false testimony before this Committee, the latter of which renders her continued service on the bench untenable.”

* * *

The Maryland Commission on Judicial Disabilities has filed charges alleging Judge Paul Goetzke displayed a disrespectful and unprofessional demeanor during a hearing, including but not limited to chastising a lawyer and badgering her about a complaint she had filed with the Commission in a demeaning and sarcastic tone (http://www.mdcourts.gov/cjd/pdfs/cjd2016083charges.pdf).  Marietta Warren was representing a defendant in a custody matter.  She filed a motion to revise an order the judge had issued.  During an ex parte hearing, the judge instructed Warren, “Take your motion out.  We’re going to go through it.  On paragraph four, you accuse me of violating the Code of Judicial Conduct.  Let me hear you on that.”  Warren said that she would submit on her written motion and stated she did not feel “at liberty to discuss” her complaint.  The judge asked, “You filed a claim against me? . . . . I want you to tell me here in court where you’re appearing to tell me what you believe would justify the accusation.”  Warren argued the points in her written motion.  The judge took offense with most of her arguments and questioned her for the remainder of the hearing, repeatedly pressing her regarding her complaint with the Commission.  He asked, “So, I violated the Code of Judicial Conduct.  Correct?  Are you alleging that?”  After Warren’s response, he admonished, “You can disagree [with me].  You don’t accuse a judge of violating the rules of judicial conduct.  Warren repeated that she was uncomfortable having a hearing on her complaint with the Commission, to which the judge stated, “Then don’t allege it.”  Later, he asked her, “What is it?  Am I an abusive judge?  Am I an understanding judge?”  The hearing lasted for approximately 55 minutes.  The judge later denied the motion to revise. 

* * *

As reported in previous up-dates, in April 2016, the Canadian Judicial Council did not find misconduct based on a video that appeared to show Judge Michel Girouard purchasing cocaine from a police informant.  The Council also declined to recommend removal even though his evidence had contained “contradictions, inconsistencies and implausibilities” because the judge had not had notice that the committee’s concerns about his evidence “were a distinct allegation of misconduct to which he must reply in order to avoid a recommendation for removal.”  Following another hearing, a second inquiry committee has now found (http://www.cjc-ccm.gc.ca/cmslib/general/Girouard2_Docs/2017-11-06%20Affaire%20Girouard%20-%20Rapport%20du%20Comit%C3%A9%20E.pdf) that the judge “has become incapacitated or disabled from the due execution of the office of judge” and recommended that he be removed because he failed to cooperate and testify with transparency and forthrightness in the first committee’s inquiry and attempted to mislead the first committee by concealing the truth; falsely stated before the second inquiry committee that he never used cocaine when he was a lawyer; and denied before the second inquiry committee that he had seen a particular report before his testimony. 

* * *

According to news reports:

* Following a hearing on whether the current governor or his successor will have the right to appoint 3 new justices to the Florida Supreme Court on the current governor’s final day in office January 8, 2019, the state’s public television channel caught Chief Justice Jorge Labarga and Justice Barbara Pariente looking at a piece of paper; the audio is garbled, but Justice Labarga is heard saying “Panuccio,” Justice Pariente responds by saying “crazy,” and Chief Justice Labarga is later heard saying “Izzy Reyes is on there, he’ll listen to me.”  The justices were apparently referring to a piece of paper containing the names of Judicial Nominating Commission members, which include Israel Reyes and Jesse Panuccio. 

* Ryan Sceviour  has filed a federal lawsuit alleging the Massachusetts State Police and his commanders forced him to edit his report of the arrest of Judge Timothy Bibaud’s daughter and to tamper with court documents, which damaged his reputation, negatively impacted his employment, and caused him severe emotional distress.    Judge Bibaud told Worcester Magazine that, “It’s a bald-faced lie that I orchestrated it.  I never read the report. … My sole concern was toward my kid.”  The trooper’s report on an accident included descriptions of a “heroin kit” found in the car driven by the judge’s daughter, her statements that she had performed sexual acts to pay for the drugs, her offer to perform sexual favors for the trooper in exchange for leniency, and her claim that her father was a judge.  The state police have said Sceviour’s supervisor was within his rights to order the offending statements removed after finding that they were not relevant.  The supervisor has retired since the media began covering the story.

* The New Jersey Advisory Committee on Judicial Conduct has filed a complaint alleging former judge Dolph Corradino paid himself $11,995 in “bonuses” from the municipal court alcohol education, rehabilitation, and enforcement fund without obtaining the required approval from the local assignment judge and contrary to the purpose of the fund, which was to hold additional court sessions to handle pending and backlogged drunken driving cases.  As reported in a previous up-dates, in 2015, the Administrative Office of the Courts suspended Judge Corradino without pay pending the investigation; he resigned in July 2016.  When the assignment judge questioned him about the payments from the DWI fund, Judge Corradino said he took the money “as his reward for the efficient performance of his court,” according to the complaint.

* A Republican lawmaker has filed a resolution with the clerk for the state house of representatives to remove Justice William O’Neill from the Ohio Supreme Court based on his announcement that he is running for governor, as reported in previous up-dates.  A vote of two-thirds of members in both the Senate and House is required to remove a judge or justice from the bench.

* In Pennsylvania, the FBI is investigating Judge Genece Brinkley after she sentenced rapper Meek Mill to 2 to 4 years in jail for a probation violation, even though the district attorney and his probation officer had asked for no jail time.  Mill’s attorney has claimed that Judge Brinkley asked Mill, when they were in chambers in 2016, to record a Boyz II Men song and give her a shout-out, that she repeatedly asked Mill to drop his current management and sign with a Philadelphia music figure whom she knows, and that she visited the Broad Street Ministry to observe Mill feed the homeless, which she had ordered as community service.

* Over a month after oral argument, U.S. Supreme Court Justice Elena Kagan has disqualified herself from a case challenging the long-term detention of immigrants facing deportation without a bond hearing after learning that “while serving as Solicitor General, she authorized the filing of a pleading in an earlier phase” of the case.

Cynthia Gray | Director, Center for Judicial Ethics

National Center for State Courts | 2425 Wilson Boulevard, Suite 350 | Arlington, VA  22201
t 703.841.6914 | cgray@ncsc.org| www.ncsc.org[/vc_column_text][/vc_column][/vc_row]

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