Long-sitting municipal judge Michael Diamond’s ex parte conversation with a prosecutor has brought him a reprimand and a stern warning about courtroom comportment.
The Advisory Committee on Judicial Conduct called the chat “the byproduct of a culture in Respondent’s courtroom, which he tolerated if not encouraged, whereby the municipal prosecutor was given significantly greater access to Respondent than defense counsel.”
The state Supreme Court on Thursday adopted the ACJC’s findings and its recommendation of a reprimand.
The suspect conversation occurred in a DWI case stemming from a single-car accident. Prior to Eugene Foxworth’s court appearance in Winslow Township, his lawyer, Christopher Baxter, and the town prosecutor, Donna Sigel Platt, met in a conference room. They discussed chain-of-custody issues Baxter planned to raise: Police allegedly had used an expired blood-test kit and neglected to refrigerate the blood sample.
Platt then went to Diamond on the bench, with a defense expert’s report furnished by Baxter, to discuss the matter at sidebar, which was recorded.
Diamond didn’t ask why Baxter was not there but he discussed the chain-of-custody issue, listed the police witnesses Platt would need to produce and repeatedly said “we” in reference to the prosecutor’s case.
“As long as we can produce the chain of custody stuff,” Diamond told Platt, “I think it’s the only way we can really put it on the record, especially if it’s a high reading.”
Platt then advised Baxter of the discussion, stating she intended to proceed with trial scheduling.
Baxter said then — and has maintained since — that he didn’t know about or consent to the sidebar. Later in court, Diamond assured Baxter that the conversation excluded substantive issues.
Weeks later, Baxter made a formal motion for recusal, which Diamond granted, stating that, though Foxworth wasn’t prejudiced, recusal would be “easier.” The case was assigned to a conflicts judge. Foxworth pleaded guilty to an amended charge of reckless driving.
Baxter reported the matter to ethics authorities, who first questioned Diamond in December 2009.
Diamond said he had assumed Platt obtained Baxter’s consent before the sidebar, noting that Platt routinely approached him ex parte after notifying her adversary. He denied coaching Platt on her strategy or reviewing the defense expert’s report.
Platt, too, told investigators she obtained Baxter’s consent.
In an October 2010 complaint, the ACJC charged Diamond with engaging in impermissible ex parte conversation and providing advisory guidance to Platt, in violation of three judicial canons.
Diamond acknowledged the conversation but denied giving an opinion on the case or violating any ethics strictures. During a hearing on March 20, Diamond said that he assumed Baxter had consented and so the conversation was not really ex parte.
His use of “we” in connection with the prosecution’s case was mere “jargon” only to refer to scheduling issues, Diamond claimed. As for his discussing the substance of the expert’s report, he contended for the first time that he was talking about a different, unrelated case and was speaking to himself.
The ACJC was unreceptive, and in a May 6 decision urged a reprimand.
The committee, led by retired Justice Alan Handler, found Diamond violated Canon 1, requiring preservation of the integrity of the judiciary; 2A, mandating conduct promoting public confidence in the judiciary’s integrity and impartiality; and 3A(6), requiring that a judge “accord to every person who is legally interested in a proceeding, or that person’s lawyer, full right to be heard according to law, and … neither initiate nor consider ex parte or other communications concerning” a pending case.
Canon 3A(6) is not dependent on the parties’ consent, the panel said.
Diamond is a 24-year veteran of the municipal bench and Platt, a longtime prosecutor, has appeared before him for years. They have a familiarity and informality that blurs the line between their roles, Handler said, noting Diamond “had no compunction about calling” Platt to advise her he decided to recuse.
Handler said the ACJC “cannot countenance Respondent’s apparent predisposition to engage in multiple ex parte conversations with Prosecutor Platt about pending matters under the guise of judicial efficiency and at the expense of judicial integrity and independence.”
The evidence demonstrated that no consent for the ex parte meeting was obtained from Baxter, the panel noted.
Even if there were consent for discussion of limited scheduling issues, Diamond should have ended the sidebar “at the moment [it] developed into a substantive discussion,” Handler said.
The content of the sidebar amounted to added violations, Handler added, as Diamond “took that opportunity to critique Mr. Baxter’s case” and “appeared to align himself with the State.”
The panel did credit Diamond for allegedly changing his courtroom procedures.
Diamond, who also sits in Chesilhurst, Hi-Nella and Voorhees and has a solo law practice in Berlin, did not return a call by press time. Neither did Baxter, of Baxter & Kourlesis in Moorestown, nor Platt, a Stratford solo. •