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Public Admonishment of Judge Ronald Maciel (California

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Public Admonishment of Judge Ronald Maciel (California JUDICIAL DISCIPLINE DECISIONS November-December 1997 Public Admonishment of Maciel (California Commission on Judicial Performance December 1, 1997) The California Commission on Judicial Performance publicly admonished a judge for three ex parte contacts with a defense attorney in a capital murder case. The judge telephoned the attorney, advised her that he had assigned the case to another judge, discussed with her the option of filing a peremptory challenge against the second judge, and suggested that she prepare an order for investigator funds and consider a polygraph test. After realizing he had erroneously told her that the statutory period for filing the peremptory challenge was 30 days, the judge attempted to reach her by telephone but when he was unable to reach her, left the court’ s telephone number on her pager, and instructed a clerk to tell her the deadline was 10 days. When the attorney returned the page, the clerk advised her of the message. Two days later, the judge initiated another conversation with the attorney in which he discussed a hearing in the case, asked if she had applied for investigator expenses, and made suggestions related to defense strategies. The case was reassigned to the judge after the defendant filed the peremptory challenge against the second judge. The judge did not disclose the ex parte conversations to the prosecution, but the prosecution learned of them and filed a motion to disqualify. The case was subsequently re-assigned. The Commission noted that the judge’s conduct and the challenge for cause filed against him received substantial publicity. Admonition of Evrard (Indiana Commission on Judicial Qualifications December 31, 1997 The Indiana Commission on Judicial Qualifications publicly admonished a judge for releasing a defendant being held on charges of trafficking in drugs on his own recognizance without giving the prosecution a chance to be heard and making the unsubstantiated entry in the record that the release was due to the state’s failure to proceed. The judge agreed to the admonition in lieu of formal proceedings before the supreme court. The judge had called the defense attorney and advised him of his intention to release the defendant on his own recognizance because of jail overcrowding and the state’s dilatoriness in processing inmates. However, on the date of the conversation, the jail population was not at its maximum, many inmates were in jail without bond on bondable offense, no issues relating to delays in the prosecution had been raised by the defense, and no speedy trial motion had been filed. The judge had also called the prosecutor, but the prosecutor was unavailable. Shortly after the defendant was released, he murdered a 13-year-old girl. In re Quirk, 705 So. 2d 172 (Louisiana 1997) The Louisiana Supreme Court rejected the recommendation of the Judiciary Commission that a judge be suspended for (1) sentencing hundreds of defendants as a condition of probation to attend church once a year for a year, (2) directing his personal attorney, who was representing him before the Commission and in federal district court on matters pertaining to the church sentencing, to file a motion to dismiss on behalf of the City of Lake Charles in a case in which the defendant was challenging the constitutionality of the judge’ s sentence of church attendance, and (3) writing two letters in his official capacity on his official court stationery to a judge in Tennessee seeking mercy on behalf of his father-in- law. The Commission had found that the judge’s church sentences were “clearly” unconstitutional under the state and federal constitutions and that his imposition of these illegal sentences violated Canons 2A, 3A(1), and 3A(4) of the code of judicial conduct as a pattern of egregious legal error in violation of defendants’ constitutional rights made in bad faith in order to further a bias toward religion. The court held that a judge may be found to have violated the code of judicial conduct by a legal ruling or action only if the ruling or action is contrary to clear and determined law about which there is no confusion or question as to its interpretation and where this legal error was egregious, made in bad faith, or made as part of a pattern or practice of legal error. The court noted that there were a wealth of cases from other jurisdictions, some directly on point but most not, that lend support to both the judge’ s and the Commission’ s interpretations of the establishment clause. There was a decision from the Louisiana first circuit court of appeal that making church attendance a condition of probation violates the state and federal constitutions, but the judge’ s court was within the jurisdiction of the third circuit court of appeal. Therefore, the court concluded that there was no case by any court whose decisions would have been binding on the judge that specifically addressed whether making church attendance a condition of probation violated the constitution. The court stated that, under these circumstances, it could not conclude that the jurisprudence on whether a judge may make, or offer as a voluntary alternative, church attendance a condition of probation was sufficiently clear, determined, and without tension or confusion to justify a finding of judicial misconduct. The court concluded that a finding of judicial misconduct where the law on the establishment clause is not clear, is rife with confusion, and is subject to varying interpretations and where no court in a jurisdiction binding on the judge had spoken directly on the issue, would strike to the very heart of the direction in Canon 1 that a judge “ must be protected in the exercise of judicial independence.” The Commission had also found that by directing his counsel to file a motion to dismiss on behalf of the city in the appeal of a church attendance sentence imposed by the judge, the judge demonstrated a pattern of preventing the issue of the constitutionality of the sentences from undergoing appellate review. Holding that procedural due process and court rules require that a judge be given fair notice of the charges upon which the Commission seeks to recommend discipline, the court concluded that the charge filed against the judge could not be fairly read as providing any notice that he was alleged to have engaged in a pattern of obstructing appellate review of his church sentences. The court found that, although the charge did allege that the judge directed his attorney to file a motion to dismiss in response to the defendant’ s writ application, that conduct was not alleged to be misconduct because it obstructed appellate review but because the hiring of the attorney was without lawful authority and resulted in an improper simultaneous representation of the judge and the city. With respect to the charge of writing letters requesting leniency, the court noted that, in 1995, the judge had entered into and complied with a discipline agreement relating to that charge, which included a private reprimand, writing a letter of apology, and taking six hours of ethics, and held that fundamental principles of fairness precluded it from further imposing 2 any discipline on the judge for the conduct. The court stated it would be nonsensical, not to mention grossly unfair, for a judge to be repeatedly subject to discipline for the same previously charged and disciplined conduct each time a new compliant is filed against him. The court did state that the existence of a previous charge and the discipline imposed are relevant when determining the proper discipline in a subsequent proven ethical violation. In the Matter of Marren, Findings of Fact, Conclusions of Law, Decision, and Imposition of Discipline (Nevada Commission on Judicial Discipline September 9, 1997) The Nevada Commission on Judicial Discipline publicly reprimanded and fined a judge who had delayed making decisions in three cases from 7 to 20 months. The amount of the fine was $1,000 payable to the local law library fund, as required by rule. One Commission member dissented from the imposition of the fine. In the Matter of Smith, Determination (New York Commission on Judicial Conduct October 29, 1997) (www.scjc.state.ny.us) Pursuant to an agreed statement of facts, the New York Commission on Judicial Conduct determined that censure was the appropriate sanction for a judge who committed a series of legal and procedural errors in a harassment case and made improper statements that compromised his impartiality and the proper administration of justice. After Roger O’ Dell, was charged with harassment on the complaint of his estranged wife, Carol, returnable in the judge’ s court, the judge spoke with Mr. O’ Dell ex parte by telephone. The judge told Mr. O’ Dell that the charge would be adjourned in contemplation of dismissal if he pleaded guilty, then accepted a guilty plea over the telephone without conducting the arraignment required by statute. The judge did not notify the prosecution or the complaining witness that the defendant had pleaded guilty to the charge or that he intended to grant an adjournment in contemplation of dismissal. Instead, he instructed Ms. O’ Dell to appear in court and to bring two of the couple’ s minor children, who had allegedly witnessed the incident that led to the charge. On the court date, the judge said that Ms. O’ Dell needed to be “ more understanding” of Mr. O’ Dell’ s job as a truck driver. He told her that it was her responsibility to provide a “ nice home” for the defendant, even though the couple did not live together. The judge required the couple’ s minor children to answer questions regarding the incident that led to the charge.
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