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JUDICIAL DISCIPLINE DECISION SUMMARIES March-April 2021

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JUDICIAL DISCIPLINE DECISION SUMMARIES March-April 2021 JUDICIAL DISCIPLINE DECISION SUMMARIES March-April 2021 Letter of Informal Adjustment to Lipsmeyer (Arkansas Judicial Discipline & Disability Commission March 19, 2021) The Arkansas Judicial Discipline & Disability Commission informally adjusted a former part-time judge who, while a candidate in a run-off election for a new judicial position in 2020, signed a letter to attorneys asking for contributions to help offset campaign expenses. Letter of Informal Adjustment to Ryan (Arkansas Judicial Discipline & Disability Commission March 19, 2021) (https://www.jddc.arkansas.gov/wp-content/uploads/2021/05/Informal- Adjustment-Jerry-Ryan.pdf) The Arkansas Judicial Discipline & Disability Commission informally adjusted a former judge for signing, in 2018, an order in a guardianship case in which he had been attorney of record for several months in 2013 before the court granted his request to withdraw. In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021) (https://cjp.ca.gov/wp-content/uploads/sites/40/2021/04/Connolly_DO_Pub_Adm_4-2- 2021.pdf) The California Commission on Judicial Performance publicly admonished a judge for (1) displaying improper demeanor toward 2 criminal defense attorneys who appeared by phone during an arraignment and (2) making an inappropriate remark about a jury verdict to a defendant who had been acquitted. (1) In a criminal matter pending before the judge, Martin Lijtmaer represented Jorge Ramirez, and Rachel Steinback represented co-defendant Felipe Ramirez. On March 20, 2020, the day after the governor announced the statewide stay-at-home order due to COVID-19, Lijtmaer called the judge’s clerk to request permission to appear by telephone for the arraignment scheduled that afternoon because he and Steinback were concerned about having been exposed to the virus and the possibility of spreading it at the courthouse. The judge spoke to Lijtmaer over the phone and said his clerk would call back to communicate his decision. Lijtmaer and Steinback attempted to find another attorney who could appear at the arraignment in their stead, but they were unable to do so. At approximately 2:00 p.m., the clerk told Lijtmaer that the judge would allow counsel to appear by telephone. At the arraignment, Lijtmaer and Steinback appeared by telephone; their clients were in custody and appeared in person. After arraignment, Lijtmaer asked that his client, Jorge Ramirez, be released on his own recognizance, citing, among other reasons, health concerns outlined in a recent letter in Lijtmaer’s possession. The following exchange occurred: THE COURT: How am I going to see that letter, if you’re not in my courtroom? LIJTMAER: Well -- THE COURT: How am I going to see that letter if you are not in my courtroom? I’m not going to, am I? LIJTMAER: As an officer of the court – THE COURT: All right. LIJTMAER: -- I’d ask the court to -- THE COURT: Is there anything further? Is there anything further, sir? Anything further, sir? LIJTMAER: Yes, your honor. I have letters -- Yes. I have letters from both -- THE COURT: Which I cannot see, because you have not come to my courtroom? All right. LIJTMAER: Your honor, respectfully, the reason I didn’t -- THE COURT: Respectfully? You have not come to the courtroom. LIJTMAER: Your honor -- THE COURT: All right. So, with that, I’m going to set -- I am going to set -- I am speaking, sir. I am speaking. We are setting the preliminary hearing at this time for April 13th, for each. Bail is going to be set for Mr. Ramirez, Jorge, for $150,000; and for Felipe at $100,000. If you have those letters, you can bring those in at the time. Steinback requested that her client be released on his own recognizance. Before Steinback finished explaining that her client was vulnerable to complications from COVID-19, which he was more likely to contract if he remained in custody, the judge asked: “And how do you know this? And how do you know this?” Steinback responded that she had learned about her client’s medical history from his family. The judge replied: “I suggest you bring in that paperwork at the time of the preliminary hearing.” Steinback said that her client has a family to support and a full-time job that has been deemed essential under the stay-at-home orders and that he would lose if he were not released from custody. The judge responded: Okay. I’m going to stop you there. Because we’re done. All right. I am not releasing either of these people, with these charges. There are multiple charges. If you wished to present this evidence, you should have been here or had someone represent you. Bail for Jorge in the amount of $150,000, and for Felipe at $100,000. In the judge’s response to the preliminary investigation letter, he acknowledged that he “should not have demonstrated irritation or impatience with defense counsel” and that he “spoke too sharply” to them. He asked the Commission to “take into account the highly unusual circumstances present at that time:” the court had not yet implemented operations to conduct matters remotely; it was not clear how long the governor’s stay-at-home order would be in effect; and there was no clear guidance about how to handle the attorneys’ request to appear telephonically at a criminal proceeding. The Commission acknowledged that the circumstances were unusual and presented challenges, but noted that “the unusual circumstances and challenges affected the defense attorneys as well as the court” and concluded that “the initial lack of clarity about how to 2 handle court proceedings during the public health crisis did not excuse or explain the judge’s mistreatment of the attorneys.” The Commission emphasized that there was “no evidence of provocative conduct by counsel,” whom the judge had given permission to appear by telephone. At his appearance before the Commission, the judge “claimed—for the first time—” that he had spoken with Lijtmaer on the telephone twice and told him to send whatever information he had to present to the court before the hearing, but that he had not received anything. The judge told the Commission that, during the telephone arraignment, he did not mention his earlier instruction to Lijtmaer because of the relationship between the attorneys and their clients who were in his courtroom. The Commission noted that it does not consider new evidence at an appearance, absent certain circumstances that were not present, and found that the judge’s explanation for not questioning Litjmaer during the telephonic hearing was unpersuasive. The Commission stated that the judge seemed sarcastic and impatient and interrupted both Lijtmaer and Steinback while “the attorneys, in contrast, appear polite and respectful.” At his appearance before the Commission, the judge acknowledged that the transcript “looks bad,” but did not admit that he committed misconduct or display contrition, arguing instead that he had not treated the “attorneys any differently because they were not in the courtroom.” (2) On August 20, 2018, a jury convicted Dalisha Jordan and another defendant but acquitted defendant Eugene Germany. After the jurors left the courtroom, the judge said to Germany: “Let me tell you, you’ve been given a gift from God because there’s no question in my mind that you’re guilty of this crime. Now, with that, though -- well, I’ll tell you, chivalry is not dead. If you’d taken the deal, Ms. Jordan would have had that six year deal. She’s going to get a lot more time than that. So, you know, take that into consideration. All right. But you’ve been given a gift. What you do with it is your choice. Fair enough?” Germany responded, “Yeah.” At his appearance before the Commission, the judge asserted that he thinks what he said “was right” and “what [he] should have done” and that it was his “duty” and his “responsibility” as a judge to advise Germany that he had been “given a gift from God” so that “Germany would take advantage of opportunities he has been given.” However, the Commission found, the judge had disparaged “the jury’s determination that the defendant had not been proven guilty. The jury system is an essential pillar of American democracy. The judge’s role in a jury trial is to be neutral. Judge Connolly’s remark was likely to undermine public confidence in the independence of the jury and its important role in the justice system.” Further, it explained that “a judge does not have a duty to advise a criminal defendant that the defendant has been given the gift of an acquittal. While a judge may encourage a defendant to make better choices and take advantage of opportunities in the future, the judge must not do so at the expense of the jury and its verdict.” The Commission found that the judge’s remarks to Germany were gratuitous, undignified, and improper. The Commission considered the judge’s prior discipline to be a significant aggravating factor. In 2016, the Commission had publicly admonished the judge for “a course of conduct reflecting embroilment with a criminal defense attorney and for setting multiple post-trial hearings regarding possible contempt charges, which was an abuse of his authority.” In 2010, 3 the Commission privately admonished him for using profanity during a judicial profile interview and in chambers discussions with attorneys. The Commission also considered the judge’s failure to fully appreciate his misconduct as an additional aggravating factor. In the Matter of Chase, Order (Colorado Supreme Court April 16, 2021) (https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2021 /21SA91.pdf) Based on a stipulation and the recommendation of the Commission on Judicial Discipline, the Colorado Supreme Court accepted the resignation of a judge and publicly censured her for (1) using the N-word in a conversation with a Black staff member; (2) expressing her views about criminal justice, police brutality, race, and racial bias while wearing her robe in court staff work areas and on the bench; (3) using court staff for personal tasks; and (4) referring to a judicial colleague in derogatory terms.
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