October 28, 2004
Digest: It is permissible for a judge to discuss a case which the judge had tried as a prosecutor, with an author, where the appellate process and post-conviction challenges to the conviction have been exhausted, and there has been no litigation involving the matter for five years.
Rule: 22 NYCRR 100.3(B)(8); Opinion 99-44 (Vol. XVII).
A County Court judge has been contacted by an author planning a book about a highly publicized murder case in which the judge had been the prosecutor. Essentially, the author wishes to question the judge as to his/her insights, and related issues involving the case.
The judge wishes to cooperate with the author and has submitted a letter from the present chief of the appeals bureau of the District Attorney’s office, to the effect that all post-judgment challenges to the conviction have been made, the appellate process has been exhausted, and the defendant has not in any way litigated the conviction since 1999.
At issue is the rule that a judge may not publicly comment on a pending or impending case. 22 NYCRR 100.3(B)(8). In this instance, since the matter is completed and there have been no further proceedings involving the conviction for five years, it is reasonable to conclude that the proceeding in which the judge was the prosecutor is neither pending or impending.
Accordingly, the judge may discuss the case with the author. Opinion 99-44 (Vol. XVII).