January 29, 2015
Digest: Absent a legal requirement, a judge may not create, maintain and/or produce information about cases specifically and exclusively for a prosecutor’s benefit.
Rules: Judiciary Law §§ 212(2)(l); 255-b; Uniform Justice Court Act § 2019-a; 22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 101.1; Opinions 13-183; 09-94; 07-185/08-68/08-77; 07-115; 96-150; Brady v Maryland, 373 US 83 (1963).
The inquiring judge asks if it is ethically permissible to comply with a district attorney’s request for “a list of all pending offenses, regardless of the level, including traffic infractions.” The district attorney has asserted that the request is based on his/her obligation to disclose exculpatory materials to defendants under Brady v Maryland, 373 US 83 (1963).
A judge must always 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 (22 NYCRR 100.2[A]) and to preserve the judiciary’s independence (22 NYCRR 100.1; see also 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control”]).
As summarized in Opinion 13-183, the Committee has advised that:
Judges “must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office’” (Opinion 13-33 quoting Opinion 00-95 [Vol. XIX]). For example, a court should not create or compile a list of “scoffed” defendants at a local law enforcement agency’s request (see Opinion 13-19); should not comply with a district attorney’s request to review lists of cases compiled by the district attorney’s office and indicate the status of each case for the district attorney’s convenience (see Opinion 09-94); should not provide a district attorney with an annotated court calendar in advance of court night indicating each defendant’s prior driving record (see Opinion 09-38); and should not provide the district attorney each month with a list of all open cases pending in the justice’s court (see Opinion 07-115). The common thread throughout these opinions is that collecting or preparing information “specifically and exclusively for the benefit” of the prosecutor (Opinion 07-115) could compromise public confidence in the judiciary’s integrity, impartiality and independence, and create an appearance of impropriety (see Opinions 13-19; 09-94; 07-115; 22 NYCRR 100.1; 100.2; 100.2[A]).
In this inquiry, it appears the district attorney and his/her staff are responsible to prosecute criminal charges within legal bounds. If the inquiring judge voluntarily assumed the prosecution’s legal or administrative responsibilities by searching public court records and creating, maintaining, and producing requested information specifically and exclusively for the district attorney and his/her staff – absent a legal obligation for the inquiring judge to do so – the judge would similarly risk compromising the independence and impartiality of the judiciary as well as its appearance (see Opinions 13-183; 09-94; 07-115; 96-150; 22 NYCRR 100.1; 100.2; 100.2[A]).
Whether Brady v Maryland imposes upon the court an obligation to assist the prosecutor is a legal question which the Committee cannot address (see 22 NYCRR 101.1; Judiciary Law § 212[l]). However, absent a legal requirement, a judge should not create, maintain and/or produce information about court cases specifically and exclusively for a prosecutor’s benefit (see Opinions 13-183; 07-115; 96-150; 22 NYCRR 100.1; 100.2[A]).
Of course, this does not mean that a judge may never provide information to a district attorney’s office or to other participants in criminal proceedings about cases pending in the judge’s court. Indeed, as the Committee recognized in Opinion 13-183:
providing access to existing court records in a non-partisan manner “is wholly consistent with the statutory provisions requiring court records and dockets to be open to reasonable public inspection” (Joint Opinion 07-185/08-68/08-77, citing Judiciary Law §255-b; Uniform Justice Court Act § 2019-a). For example, the Committee has advised that a judge may share with lawyers, the parties and the media information that the judge compiles for his/her own use to facilitate court operations, subject to applicable confidentiality protections for personal information contained in those records (see Joint Opinion 07-185/08-68/08-77); and that a court may respond to inquiries from the district attorney, public defender or other attorneys about the status of specific cases, either by providing publicly available information, or by inviting the attorneys to “obtain the requested case dispositions by visiting the courthouse during regular court hours to review the court’s records” (Opinion 09-94).
Accordingly, the inquiring judge may suggest the district attorney and his/her staff obtain the requested information by visiting the courthouse during regular court hours to review court records (see generally Opinions 13-183; 09-94; 07-185/08-68/08-77; Judiciary Law §255-b; Uniform Justice Court Act § 2019-a).