October 3, 2012
Digest: A judge may submit the judge’s decision in a criminal case to a local newspaper for publication, subject to any applicable statutory provisions concerning sealed records, after the judge files the decision with the clerk of the court and without commenting about the decision in any way.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 101.1; Opinion 98-125 (Vol. XVII); Criminal Procedure Law §160.50, §160.55; Judiciary Law §212(2)(l) .
A judge asks if it is ethically permissible to mail a copy of his/her recent decision dismissing an accusatory instrument for facial insufficiency to a local newspaper. The judge provided the Committee with a copy of an earlier unpublished decision that addresses the same charges and issue.
According to the judge, he/she has repeatedly dismissed accusatory instruments for the same reason, despite having issued numerous decisions in the past indicating that the defect can be corrected. The judge advises that he/she will notify the newspaper editor in a cover letter that he/she will decline to be interviewed about the decision or to comment on the issue in any way beyond what is written in the decision.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge is prohibited from making any public comment about a pending or impending proceeding in any court within the United States or its territories, but may explain court procedures for public information (see 22 NYCRR 100.3[B]).
In Opinion 98-125 (Vol. XVII), the inquirer asked if he/she could distribute a decision in a criminal case to the press where the State Reporter had accepted the decision for publication and the case was not sealed. Given these facts, the Committee advised that the judge could distribute the decision to the press, but only after the judge filed it with the clerk of the court (id.)]. In the Committee’s view, because the case was not sealed, once the judge filed the decision with the clerk of the court, it was part of the public record (id.). However, the Committee cautioned the judge to refrain from commenting in any way about the decision (id.).
The judge in the present inquiry does not indicate whether the case that is the subject of his/her decision is sealed (see e.g., Criminal Procedure Law §§160.50 and 160.55) or whether the State Reporter has accepted the decision for publication). Therefore, the inquiring judge must first determine whether the case is or will be sealed, and if so, whether that precludes him/her from mailing the decision to the newspaper. As those determinations involve a question of law, not ethics, they are beyond the Committee’s jurisdiction (see Judiciary Law §212[l]; 22 NYCRR 101.1).
If the inquiring judge determines that it is legally permissible to, and he/she does, submit the decision to the local newspaper, the Committee reiterates that the judge should not comment in any way about the decision, including in his/her cover letter to the newspaper, and should not respond to inquiries about the decision thereafter unless authorized to do so pursuant to §100.3(B)(8) of The Rules Governing Judicial Conduct.