The local ABC affiliate in Phoenix, Arizona recently published an expose of "astonishing and horrific conduct by judge." It is an interesting read, and reminded me of Victor Hugo and Les Miserables, which he wrote in 1862 depicting injustice in the nineteenth century. He noted "I'm not totally useless. I can be used as a bad example.” And, as Don Henley reminded in his Driving with your Eyes Closed (1984), "everybody got to have a purpose in this world." It is alleged that an Arizona judge has possibly found hers. If you are tempted to click the link and read the original story, note the station's warning that it "contains words and images that are graphic and cruel."
The story is about "mock(ing) and ridicul(ing) people during hearings and trials." The Judge and staff allegedly sent emails back and forth with "cruel and obscene statements, jokes, and memes" about "defendants, their families, jurors, witnesses, attorneys, even other court employees and top court officials." They apparently were, one might say, equal opportunity offenders. The foregoing should be shocking as regards any public servant. And, one might readily think of the Arizona Code of Judicial Conduct, and its imperatives, guidance, and constraints.
That Code, similarly to others, speaks of "promoting confidence in the judiciary," "decorum and demeanor," "bias, prejudice, and harassment," "judicial statements," "supervisory duties," and even "ex parte communications," a subject that has graced these pages a few times. See Judicial Behavior and Ex Parte Communication (October 2015); What is Ex Parte (January 2018); and Ex Parte Yet Again (September 2019). If the reader has not caught the theme on ex parte, stated simply: ex parte is bad.
Of note, the Arizona Commission in this instance did not conclude there was sufficient proof of ex parte communication, but it was merely alleged. Ex parte was alleged because in addition to the allegations of making fun of and demeaning people, the judge "and her staff were also accused of regularly having inappropriate contact and communication with defendants."
The judge was a prosecutor before appointment as a Court Commissioner in 2012 and was appointed judge in 2016. While the allegations against the judge were under investigation, the judge was quietly "allowed to resign" in 2020. The ABC affiliate noted that the Arizona officials conducting the investigation did not impose any sanction or punishment and that the former judge who now works as a prosecutor "declined to be interviewed" for the story.
What many do not think of is the limited authority of state authorities that investigate judges. In many instances, that authority evaporates when one ceases to be a judge. Thus, the station's "allowed" may be more suggestive than real. The panel may not have had any authority to impose any sanction once the resignation occurred. That could leave it to the state licensing authority, such as the bar association, to impose sanctions as The Florida Bar did following the resignation of a judge discussed in Judicial Behavior and Ex Parte (October 2015).
A clerk in this bad example's court made the allegations noted above in 2019. She described the behavior she alleged as bullying, and described being ashamed of her personal tolerance of the behavior before coming forward. She contends that if you "watched someone bullied and do nothing, you’re as bad as the bully.” That is an excellent point, worthy of reflection. If we tolerate it, are we not equally guilty?
The complaint that was eventually filed is said to "outline() many examples of alleged misconduct." The ABC Affiliate reports that it "independently verified many of the allegations in the complaint filed with the commission." While that is a resounding statement, the reader must remain conscious that "verified" may nonetheless fall short of the burden of proof in such situations. For example, one independent witness verifying an allegation may well be "verification," but not be sufficient to convince the discipline authority that the allegation is "highly and substantially more likely to be true than untrue," which is what the "clear and convincing" burden means according to the Nolo Legal Encyclopedia.
The judge is alleged to have dismissed a juror who described a medical excuse from service, after which a bailiff circulated to the judge an others "a cruel and graphic meme to mock her medical condition." The affiliate reports there are "dozens of examples" of such "mocking and ridiculing of people in court," which took place "over years." Images were published in the original story. The complainant in the case alleged "it was an 'almost daily” occurrence.'" Some of the derogations were allegedly "printed . . . laminated . . . and hung . . . on the wall in the division." One law professor was quoted equating the behavior to what "you normally associate with high schoolers.”
In March 2021, the Arizona Commission on Judicial Conduct dismissed the 2019 complaint against the judge. The order is said to have "acknowledged the improper memes and emails but did not address any of the other serious allegations alleged in the underlying complaint." It noted that the Arizona Bar had likewise not taken any action, but reported those officials claimed "they were never notified." As a result of the news inquiry, perhaps the Arizona Bar will undertake an investigation now. Its inquiry may be governed by a "clear and convincing" standard, or perhaps not. Its' authority may similarly be truncated by a resignation, or not. Those issues are all likely to be particular to Arizona law.
The ABC Affiliate also expresses concerns about the former judge's new role as a prosecutor and the timing of discussions that led to that position. It notes the potential for conflict of interest, saying the judge "presid(ed) over at least one capital case while talking with (the prosecutor's office) about a job prosecuting capital cases." It is not clear whether that allegation was ever raised with the Commission, or whether it will be with the bar association.
The judge provided a statement to the ABC Affiliate and stressed that she was found to have "failed to appropriately supervise my staff," but that all "other allegations were unfounded and dismissed." As to the emails and memes, the judge "admit(ed) that I did not handle that in the best way and have taken full responsibility for it." The judge adamantly denied "participat(ing) in ex parte communications" or keeping a collection of "memes and photos” in the division, either posted on the wall or in some collection or book.
According to a "confidential letter" from the Commission, provided by the judge, the standard for judicial conduct in Arizona is "clear and convincing" evidence. That means that
"the evidence is highly and substantially more likely to be true than untrue; the trier of fact must have an abiding conviction that the truth of the factual contention is highly probable. (Colorado v. New Mexico, 467 U.S. 310 (1984)."
According to the letter provided by the judge, the Commission did not find such "highly and substantially" convincing evidence to support any of the allegations other than the obligation of a judge to be "courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others," and to require judicial staff to be likewise. In short, it appears that this judge essentially lost her position over allowing a cruel and intolerant bailiff to ridicule and demean people.
Certainly, the "clear and convincing" is a somewhat lofty standard, beyond the "preponderance of the evidence" standard that applies in civil court proceedings (facts must be determined to be more likely than not). The clear and convincing standard is similarly not nearly as demanding as the "beyond a reasonable doubt" that prevails in criminal proceedings. However, the point remains that in this country those who are accused are presumed innocent until proven otherwise. These "standards" define how much proof is necessary. In this instances, that standard was met as regards only one set of facts, albeit a fairly disturbing set of facts about the memes, photos, and disrespect, and then the judge divested the authorities of jurisdiction by resigning.
Certainly, it is not clear whether the Bar will investigate or take further action. It is possible that this lawyer will continue to serve as a prosecutor, or perhaps a private attorney, in the Arizona justice system. Time will tell if further inquiry is undertaken.
What is clear from the story, and the admissions by this judge, is that the Code of Judicial Conduct demands respect and courtesy for all that participate in any judicial proceeding. That such respect is afforded is the responsibility of all involved, including the judge. We must remember as judges that in these regards the behavior of everyone else in the proceedings is our responsibility. The temperament and tone of each and every proceeding, chamber or division, and hearing room is up to the judge presiding.
Coincidentally, the NY Daily News recently reported that workplace bullying is not appropriate in other workspaces either. A "top science advisor" in the federal government recently apologized "for "Browbeating staff," and then resigned. His boss reportedly said "I hear you treat another colleague with disrespect, talk down to someone, I promise you I will fire you on the spot.” And yet, again, a resignation not termination. And, not on the spot, but after a lengthy investigation during which 14 current and former staffers described a toxic workplace."
By example first, and other means when necessary, the judge has a duty to maintain an appropriate tone of decorum, civility, and respect for all involved (before, during, and after) in judicial proceedings. In any workplace, everyone has the right to be treated better than the normal fare served by playground bullies. Lest anyone be tempted to forget that, refer back to this particular miserable example. Judges should make it their purpose to be an example, but a good one.
