January 27, 2011
Digest: A judge may be interviewed for a documentary film produced by a not-for-profit organization about a well-known former prosecutor who is a former colleague of the judge, provided that the judge does not discuss any matter that is pending or impending in any court in the United States or its territories, and further provided that the judge’s comments do not cast reasonable doubt on the judge’s capacity to act impartially.
Rules: 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.2(B); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); Opinions 10-161; 09-182; 09-79; 09-11; 04-01; 01-86 (Vol. XX); 00-31 (Vol. XIX); 99-113 (Vol. XVIII); 98-141 (Vol. XVII); Joint Opinion 98-126/98-129 (Vol. XVII).
A full-time judge asks whether he/she may be interviewed for a documentary film sponsored by a not-for-profit organization about a well-known former prosecutor. The judge states that he/she was the former prosecutor’s colleague and, prior to taking the bench, he/she participated in two highly publicized criminal prosecutions under the former prosecutor’s supervision. The judge believes the interview will concern “[the prosecutor]’s approach to crime and my experiences” working for the prosecutor, as well as more specific questions about these two high-profile matters. Although both prosecutions began more than a decade ago and it appears all possible direct appeals and challenges to the original convictions have been exhausted, the judge states there is civil litigation pending in federal court relating to one of these two high-profile matters. The judge states he/she is “not a party to and would not discuss the civil action.”
A judge must avoid even the appearance of impropriety in all his/her activities (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). While a judge may engage in extrajudicial activities such as teaching (see 22 NYCRR 100.4[B]), the activities must not be incompatible with judicial office nor (1) cast reasonable doubt on the judge’s capacity to act impartially; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-). Further, a judge shall not publicly comment on a pending or impending proceeding in any court in the United States or its territories (see 22 NYCRR 100.3[B]).
In previous inquiries regarding participation in video productions, the Committee has advised that a judge may appear in a not-for-profit organization’s non-fund-raising video in honor of professional women where the “clip will show [the judge] at work, with [his/her] name and title printed on the screen” (Opinion 00-31 [Vol. XIX]); may participate in a video production of a not-for-profit group intended to educate teenagers about the court system and police procedures, provided the judge does not comment on pending or impending cases or render advice that casts doubt on the judge’s impartiality (see Opinion 98-141 [Vol. XVII]); may participate in a video production to be screened for students at a local high school to discourage them from driving while intoxicated, using illegal drugs, and smoking, provided the judge does not comment on pending or impending cases or render advice that casts doubt on the judge’s ability to be impartial, and the judge’s participation does not detract from the dignity of judicial officer or interfere with the judge’s performance of his/her judicial duties (see Opinion 09-79); and may appear in a training video that a social services agency will use to provide information to families, police, and others about various programs the agency provides and certain matters which are heard in the judge’s court, as long as the judge “simply describe[s], objectively and without comment, the manner in which a case proceeds through the court system” and “avoid[s] advocating a certain strategy or giving examples of what information should be contained in the pleadings” (Opinion 10-161). However, the Committee also has advised that a full-time judge should not participate in an educational video production about the judicial branch of government that is being produced by a for-profit entity (see Opinion 01-86 [Vol. XX]) or in a videotaped interview to be used as part of a documentary that would accompany a criminal justice textbook, where the video will be produced by a for-profit organization (see Opinion 09-182).
Accordingly, the inquiring judge may participate in the video described and may respond to questions about his/her experience working with the former prosecutor as long as he/she does not discuss any matter that is pending or impending in the United States or its territories (see 22 NYCRR 100.3[B]). A “pending proceeding” is one that has begun but has not yet reached final disposition, and an “impending proceeding” is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U], [V]). A matter is “pending or impending,” even after the original trial is complete as long as any appeal or collateral proceeding in the case is pending or likely (see Opinion 99-113 [Vol. XVIII]; see also Opinion 04-01 [judge may not publicly discuss cases that “remain pending in some respect, e.g. appeals, collateral proceedings, parole hearings, etc.”]; Joint Opinion 98-126/98-129 [Vol. XVII] [judge may not publicly comment on portions of a pending matter that have become moot as long as the case itself remains pending]).1 Therefore, the inquiring judge should not publicly discuss any aspect of the high-profile criminal prosecution which, although technically closed, has now resulted in civil litigation in federal court. This prohibition lasts as long as the related civil litigation is pending or impending (see 22 NYCRR 100.3[B]; see also e.g. Opinions 09-11; 04-01; 99-113 [Vol. XVIII]; Joint Opinion 98-126/98-129 [Vol. XVII]).
The judge must also take care to avoid any comments that cast reasonable doubt on his/her capacity to act impartially (see 22 NYCRR 100.4[A]). With these caveats, the Committee sees no additional impediment to the judge’s participation in the video.
1Similarly, in Opinion 09-11, the Committee advised that the rule against ex parte communications regarding a “pending or impending” matter applied, and thus a judge who had presided over a concluded criminal trial and proceeding in a Domestic Violence Court should not meet privately with the victim of the criminal conduct where it was “reasonably foreseeable that a collateral or post-judgment application, an appeal, a parole hearing, or other proceeding may be filed either in the inquiring judge’s court or in another court or tribunal of competent jurisdiction involving one or both” of the same parties (Opinion 09-11 [emphasis added]).