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56 Ct. Rev. 144 (2020)
Ethical Judicial Culture

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CANON CONVERSATIONS - A COURT REVIEW COLUMN


Ethical Judicial Culture

                                Cynthia  Gray


      e  problems  that roil society affect the judiciary Most

      recently, an uncontained virus challenged courts to perform
      their duties remotely for a time and then safely when they
reopened.  The #MeToo   movement   forced judicial systems to
reckon with their past negligence and adopt reforms to do better
in the future. And the racial justice movement of 2020 prompted
commitments   from state courts to, for example, look afresh at
what we are doing, or failing to do, to root out any conscious and
unconscious  bias in our courtrooms; to ensure that the justice
provided  to African-Americans is the same that is provided to
white Americans; to create in our courtrooms, our corner of the
world, a place where all are truly equal.i
   Individual judges willing to take up the challenge of justice
movements   must remember   the ethical restrictions that require
both impartiality and the appearance of impartiality to protect
the judiciary's credibility For example, judicial ethics committees
have warned  judges  not to delegate the judiciary's message to
others by joining the millions demonstrating about numerous
causes across the country Judges have been advised not to take
part even in such legal community events as A Silent March of
Black Female  Attorneys of Connecticut2 or a bar association's
silent walk for justice.3 Advisory opinions that do not prohibit
marching  outright condition participation on a daunting list of
criteria.4 The general public can protest and declare their view of
a just result in a case without waiting for proof beyond a reason-
able doubt. In contrast, judges cannot risk the neutrality that
gives the public confidence in their ability to preside with an
open mind  over those contentious cases.


PROFESSIONAL WORKPLACE
   Although systemic issues of bias must be broadly remedied by
the courts, the enforcement of the strong judicial ethics canons
already in place can address specific, frequently high-profile inci-
dents of sexual misconduct or racist behavior. Rule 2.3(B) of the
2007  American  Bar Association Model Code of Judicial Conduct
provides:

     A judge  shall not, in the performance of judicial duties,
   by words or conduct manifest bias or prejudice, or engage
   in harassment, including but not limited to bias, prejudice,
   or harassment  based  upon  race, sex, gender,  religion,
   national origin, ethnicity, disability, age, sexual orientation,
   marital status, socioeconomic status, or political affiliation,
   and shall not permit court staff, court officials, or others
   subject to the judge's direction and control to do so.5

   Recent examples of sanctions under this rule are as follows:

   - A judge  who  asked a sexual assault victim, Close your
   legs? Call the police? Did you do any of those things?6
   - A judge  who  told an assistant district attorney, I don't
   care what anybody wears, Ms. McKeegan,  if you wear yoga
   pants to court, it's okay with me.7
   - A judge  who told two female assistant district attorneys
   in the hallway, I have the biggest balls in the courthouse.8
   - A judge  who gave a female judge and four female court
   staff a Gag Order, Esquire patch.9
   - A judge  who said during a domestic violence case, On
   a lighter note, I can take judicial notice that women can
   drive you crazyiO


Footnotes
1. Letter from the Seven Justices of the Massachusetts Supreme Judicial
   Court to Members  of the Judiciary and the Bar (June 3, 2020)
   (https://www.mass. gov/news/letter-from-the-seven-justices-of-the-
   supreme-judicial-court-to-members-of-the-judiciary-and).    The
   National Center for State Courts has collected statements on racial
   justice made in 2020 by court leaders and courts on its website at
   https://www.ncsc. org/newsroom/state-court-statements-on-racial-
   justice.
2. Connecticut Informal Opinion 2020-3 (https://jud.ct.gov/Commit-
   tees/ethics/sum/2020-03 .pdf) .
3. New  York Advisory Opinions 2020-92/93 (https://www.nycourts.gov/
   legacyhtm/ip/judicialethics/opinions/20-92_20-93.htm).
4. The Center for Judicial Ethics has summaries of judicial ethics opin-
   ion on judges' and court staff participating in demonstrations and
   other  issue-related community  events  on  its website  at
   https://www.ncsc.org/_data/assets/pdf file/0027/42588/JudicialPar-
   ticipationinMarches.pdf
5. See https://www.americanbar.org/groups/professionalresponsibil-
   ity/publications/modelcodeof judicialconduct/model_code_of ju
   dicial_conduct_canon_2/rule2_3biasprejudiceandharassment/. Most


   jurisdictions have adopted a version of this rule.
6. In the Matter of Russo, 231 A.3d 563 (New Jersey 2020) (removal
   for this and other misconduct).
7. In the Matter of Gerber, Determination (New York State Commission
   on Judicial Conduct June 27, 2020) (http://cjc.ny.gov/Determina-
   tions/G/Gerber.Howard. 2020.06.17.DET.pdf) (admonition for this
   and other misconduct).
8. Inquiry Concerning Bennett, Decision and Order (California Commis-
   sion on Judicial Performance March 25, 2020) (https://cjp.ca.gov/wp-
   content/uploads/sites/40/2020/03/ Bennett_Censure_3-25-20.pdf)
   (censure for this and other misconduct).
9. In the Matter of Potter, Stipulation and Order of Consent to Public
   Admonishment  (Nevada Commission on Judicial Discipline Septem-
   ber 30, 2020)  (http://judicial.nv.gov/uploadedFiles/judicialnvgov/
   content/Discipline/Dicisions/2020_09_30_CaseNo2019-182-P pd.
10. Inquiry Concerning Laettner, Decision and Order (California Com-
   mission   on  Judicial Performance   November   6,  2019)
   (https://cjp.ca.gov/wp-content/uploads/sites/40/20 19/11/
   Laettner_DO_Removal_11-06-19.pdD (removal for this and other
   misconduct).


144  Court Review  - Volume 56

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