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Judges can explain all they want. Judges and reporters often complain that the code of judicial conduct prevents judges from justifying their decisions, leaving them gagged and helpless while others excoriate their actions. That is simply not the case. The code does permit judges to explain a decision — with as much detail and elaboration as they wish to supply — on the record. Matters are different when a case is pending, as illustrated by the Microsoft antitrust case. Trial Judge Thomas Penfield Jackson’s interviews shifted the focus of the parties, the public and the appellate court away from the merits of the case to the meaning of his post-decision observations. The soundness of the restriction on off-the-bench remarks is confirmed by a decision of the 1st U.S. Circuit Court of Appeals. The case involved a claim that the plaintiffs had been deprived of preferred school assignments based on race. After U.S. District Judge Nancy Gertner postponed a decision on class certification, counsel for the plaintiffs, in a statement quoted in the Boston Herald, claimed, “If you get strip-searched in jail, you get more rights than a child who is of the wrong color.” This was a reference to a case in which Gertner had certified a class of women who had been strip-searched. Responding to what she viewed as inaccuracies, the judge sent a letter to the Herald saying that she had not denied class certification but simply had postponed ruling until discovery. If the judge had stopped at that point, there would not have been a problem. Nothing in the code prevents a judge from using the public record to correct factual misrepresentations or to explain court procedures. But the judge also gave an interview to a reporter in which she said: “In the [strip search] case, there was no issue as to whether [the plaintiffs] were injured. It was absolutely clear every woman had a claim. This is a more complex case.” After Judge Gertner denied the plaintiffs’ motion to disqualify, the plaintiffs filed a petition for a writ of mandamus, which the 1st Circuit granted. The 1st Circuit concluded that the judge’s “comments were sufficiently open to misinterpretation so as to create the appearance of partiality, even when no actual prejudice or bias existed.” In re: Boston’s Children First, 239 F.3d 59 (2001). Whether the 1st Circuit was correct that the judge’s comments required disqualification can be debated. But the case demonstrates why a judge should not debate a case outside of the courtroom. The courtroom is where judges conduct their business, in view of both the parties and the public. All the judge’s words and actions in the courtroom are on the record and subject to review. Her decisions are announced publicly and can be obtained from the court and, increasingly, on the Internet. INTERVIEWS ARE PRIVATE In contrast, an interview with a reporter is private. All the public learns is what the reporter chooses to repeat or has the space or time to include in a report. Parties should not have to read newspapers and listen to TV to discover what the judge is thinking in a case; they should be able to rely on learning everything they need to know in court. The restriction encourages judges to explain clearly and comprehensively their decisions to the parties in the first place and to ensure that the public and media have access to the court and its rulings. If judges refrain from additional commentary, the public will be reassured that the judiciary is trying cases, not in the press, but in the public forum devoted to that purpose. Cynthia Gray is the director of the Chicago-based American Judicature Society’s Center for Judicial Conduct Organizations.

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