To the Editor:
The Advisory Committee on Judicial Conduct has filed ethics complaints against two judges because they attended dinner meetings of an organization, which were also attended by the judges’ longtime friend who had been indicted on official misconduct and other charges. The ACJC alleges the judges’ attendance at the dinners had the potential to weaken public confidence in the integrity and impartiality of the judiciary. [See, Judges Allegedly Breached Ethics by Keeping Company With Accused Felon.]
While it is clear that judges should avoid even the appearance of impropriety, the most significant potential impropriety in this case would be dining with someone who had committed official misconduct and other offenses. The judges’ friend was accused of doing so, but those accusations had not yet been adjudicated by a court. The ACJC apparently contends that the charges alone were a sufficient basis for the judges to cut off all contact with their friend. However, to do so would amount to accepting the position of the prosecution over that of the defense. This itself would call into question the impartiality of the judiciary.
The ACJC’s charges in this case could also be viewed as a stringent application of the principle that judges should avoid contact with parties to litigation. Of course, the case in question would not be tried by the judges who had a long-standing friendship with the defendant. If the ACJC’s charges are based on the prohibition on contact with a party, applying that prohibition in this case would require that any judge avoid contact with anyone who is a party to any action in any court. Canon 3 of the Code of Judicial Conduct addresses contact “concerning a pending or impending proceeding” but does not suggest any such broad restriction.
On a broader level, even in the case of convicted offenders, perhaps even judges should be allowed to “hate the sin but love the sinner.” Prohibiting contact between judges and offenders reflects a “throw away the key” approach rather than a rehabilitative “we’re all in this together” approach. The latter focuses on changing an offender’s willingness to violate the law, something in which judges (other than a judge who had a judicial role with respect to the individual) can play a significant role, given their commitment to the law.
David B. Harris