April 19, 2001
Under the circumstances, the judge should decline to be interviewed by
a journalist about a criminal case presided over by the judge, despite
the fact that the defendant's appellate remedies have been exhausted.
22 NYCRR 100.3(B)(8).
A judge who presided at the trial of a criminal defendant in a murder case which had received some publicity has been requested to provide an interview to a journalist concerning the facts of that case. The judge inquires as to the ethical implications of such an interview.
At issue is the scope of section 100.3(B)(8) of the Rules Governing Judicial Conduct which states that a judge should refrain from "any public comment about a pending or impending proceeding in any court within the United States or its territories." 22 NYCRR 100.3(B)(8).
The judgment of conviction in the case referred to has been affirmed. However, post-trial motions have been, or will be made seeking to have the judgment vacated. The inquiring judge refers to the possibility of further litigation, despite the defendant's exhaustion of his appellate remedies. Also, the journalist in question has expressed an intent to write to the Governor about the case and wishes to "present my side fairly."
Under the circumstances described, the Committee concludes that the judge should decline to be interviewed. Given the nature of the case, the fact of post-judgment motions having been made, the possibility of further motions, and the unexplained intention of the journalist to write to the Governor about the case, we believe the judge should avoid discussing the case with the journalist.