C.J. No. 14, 2011 and 2, 2012

Two litigants in separate cases filed complaints alleging that the judge was rude and said derogatory things to them during hearings. The complaints were consolidated and referred to a panel for investigation. The panel listened to audio recordings of the hearings and found that, in one case, although the judge was impatient and noticeably irritated, the judge’s behavior did not rise to the level of a violation of the Code of Judicial Conduct. In the other case, the panel found that the allegations were not supported by the audio recording.

During the panel’s investigation of the complaints, the panel became aware that several attorneys had complained to the judge’s Chief Judge that the judge had met with them to discuss the judge’s concern that the attorneys had racial or gender biases. Also, the panel learned that a number of attorneys, litigants, advocates, and court staff, had complained to the judge’s Chief Judge about instances when the judge had demeaned, intimidated, berated, bullied, and yelled in the courtroom.

The panel listened to audio recordings of some of the hearings where the judge’s courtroom conduct was perceived by others as demeaning and intimidating. In the panel’s report and recommendation, the panel found that the judge’s conduct at times supported those perceptions, and that the judge’s behavior was a violation of the Code of Judicial Conduct. Also, the panel found that, under the Code, and in the absence of reliable evidence indicating that the attorneys with whom he met had racial or gender biases, the judge should not have held meetings suggesting that the attorneys held such biases.

A hearing was held before a Board of Examining Officers. After the hearing, the Board issued a report and recommendation finding that there was insufficient evidence that the judge had violated the Code of Conduct. Specifically, the Board found that most of the judge’s alleged inappropriate courtroom conduct did not support an inference that the judge was biased or prejudiced against the litigants. Also, the Board found that the panel did not identify any attorney who was offended by being compelled to meet with the judge to discuss the judge’s concern about racial or gender bias in the proceedings before him, and that no one came forward at the Board hearing to offer testimony against the judge on that charge. At the recommendation of the Board, the Court on the Judiciary dismissed the complaint.

Main Point: The Court on the Judiciary will dismiss a complaint when a Board concludes that there is no clear and convincing evidence of judicial misconduct.

C.J. No. 13, 1996

Following an evidentiary hearing, the Board issued a report and recommendation finding that a judge violated the Code of Judicial Conduct when she took more than a year to issue a decision. The Board concluded, however, that the evidence showed that the delay was the result of the judge’s negligence in one case and was not a wilful or a persistent failure to perform the judge’s duties. Wilful misconduct is the improper or wrongful use of the power of the judicial office by a judge acting intentionally, knowingly, voluntarily, or with gross unconcern for the judge’s conduct, which would bring the judicial office into disrepute. It is more than a mere error of judgment or an act of negligence. Based on the Board’s recommendation, the Court on the Judiciary dismissed the complaint

Main Point: Although the Code of Judicial Conduct provides that a judge should promptly dispose of the business of the court, not every violation of the Code of Judicial Conduct warrants disciplinary action. Whether or not a particular violation of the Code is serious enough for disciplinary action depends on the seriousness of the violation, the intent of the judge, whether there is a pattern of improper conduct, and the effect of the improper conduct on others or on the judicial system.

C.J. No. 2, 1996

The two-part complaint in the Court on the Judiciary was based on sworn statements from a state prosecutor and a state trooper. In part one, the prosecutor claimed that the judge approached her in a courthouse, introduced himself as a judge from another court, and asked her to reduce a defendant’s charges in a case. The defendant had been charged with felony assault when she kicked a police officer who was arresting her for DUI. The judge explained to the prosecutor that the defendant had personal problems, and that he was trying to help the defendant get her life back on track. The prosecutor told the judge that, based on the arresting police officer’s recommendation, she was intending to reduce the felony assault charge to misdemeanor assault, but that she could not reduce the DUI charge. The judge asked the prosecutor if she could reduce the misdemeanor assault charge to offensive touching. The prosecutor said no, explaining that the defendant was charged appropriately and that she would not reduce the charge any further. The judge said that he understood, and that was the end of the conversation.

In part two, a state trooper claimed that the judge excluded him from a bail hearing and then released the defendant after talking to the defendant’s father, alone, in the courtroom. The trooper stated that he arrested the defendant and brought him to court at the direction of a different judge who had entered a no contact order that the defendant ignored. The judge who issued the no contact order believed that, for the safety of the alleged victim, the court should set a high cash bail and that the defendant should go to jail.

After an investigation, a panel found a basis to believe that the judge may have committed judicial misconduct, and a hearing was held before a Board of Examining Officers. The judge was one of several witnesses who testified at the hearing.

The judge did not dispute that he approached the prosecutor, introduced himself as a judge, and asked her to reduce the charge against a defendant. The judge testified that he had given the defendant a ride to court that day and that, once there, he decided to talk to the prosecutor to give her additional information about the defendant’s background. Also, the judge wanted to make sure that the prosecutor knew that the arresting police officer was not injured by the defendant’s kick, and that the defendant had apologized to the officer.

The judge also did not dispute that he released a defendant after talking to the defendant’s father, and that he did not consult with the arresting state trooper or include the trooper in the conversation with the defendant’s father. The judge testified that he did not intend to exclude the trooper from the courtroom and thought that the trooper was just there to process the defendant’s arrest. The judge also testified that he did not have a personal relationship with the defendant’s father. The judge told the Board that he did not consider himself bound by the first judge’s recommendation to set a high cash bail because he had additional information that the first judge did not have. Also, the judge testified that the defendant’s father was willing to take responsibility for his son, who was scheduled to appear at a court proceeding in a few hours, and that releasing the defendant into the custody of his father seemed to be the most sensible thing to do.

After the hearing, the Board issued a report and recommendation. The Board found that the judge violated the Code of Judicial Conduct when he approached the prosecutor about reducing the defendant’s charge, but determined that the violation was an error of judgment rather than wilful misconduct. When making that determination, the Board considered that the judge did not ask the prosecutor to do anything that, under the facts of the case, was not a reasonable exercise of the prosecutor’s discretion, and that it apparently did not occur to the judge that the prosecutor might give him special deference because of his judicial office.

The Board also found that the judge violated the Code of Conduct when he had a conversation with the defendant’s father outside the presence of the state trooper and then released the defendant without hearing from the state trooper on the issue of bail. Nonetheless, the Board determined that the judge’s violation was the result of carelessness and was not wilful misconduct. When making that determination, the Board considered that the judge released the defendant to the custody of his father for an arraignment the next day.

The Board recommended that the complaint should be dismissed on the basis that the judge’s violations of the Code were neither wilful misconduct nor persistent misconduct because the two violations concerned different conduct and neither violation, under the circumstances, warranted severe punishment. Based on the Board’s recommendation, the Court on the Judiciary dismissed the complaint.

Main Point: Under the Delaware Constitution, the Court on the Judiciary can discipline a judge for wilful misconduct and persistent misconduct in violation of the Code of Conduct. Whether or not a particular violation of the Code is serious enough for disciplinary action depends on the seriousness of the violation, the intent of the judge, whether there is a pattern of improper conduct, and the effect of the improper conduct on others or on the judicial system.