Opinion 17-61

May 4, 2017

Digest:         A judge may not intervene in a criminal defendant’s appeal by advising the parties of his/her belief that he/she correctly stated the legal standard during voir dire, and that the transcript is erroneous, where the judge does not recall his/her exact words and the judge’s alleged misstatement is a basis for the appeal.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(6)(c); 100.3(B)(8); Opinions 17-15; 16-178; 15-100; 14-17; 10-118; 08-86; 06-36; 98-77; 95-148; 92-55.

Opinion:

     A criminal defendant has appealed his/her conviction based, in part, on the trial judge’s purported misstatement of the applicable legal standard during voir dire more than three years ago. Although the judge does not have “an independent recollection of what [he/she] said,” he/she is “confident [he/she] did not say what the transcript recites” because (1) it is inconsistent with the judge’s usual practice; (2) “such an obvious error would have been immediately corrected by one or both of the parties and [his/her] court attorney,” and the record reflects no objections; and (3) multiple court reporters have advised the judge “that transcribing [his/her] words accurately is sometimes challenging.” Accordingly, the judge asks if he/she may “contact the parties on the appeal, advise them [he/she] believe[s] the transcript is inaccurate and advise them why [he/she] so believe[s].”

A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), 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 (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) and may not publicly comment on a pending or impending case in the United States or its territories, unless an exception applies (see 22 NYCRR 100.3[B][8]; see also e.g. Opinion 15-100 [discussing the rule’s extensive reach]).

         Although the question here appears to be a matter of first impression for the Committee, prior lines of previous opinions are relevant. Initially: in some circumstances a judge may, or even must, take steps to correct a legal error he/she has made. The Committee has advised that a judge may, to the extent permitted by law, amend his/her prior order to correct an error or omission that has been brought to the judge’s attention and may send the amended order to all parties entitled to a copy of the order along with an appropriate cover letter (see Opinion 14-17). In that instance, the judge explained that, “by virtue of a drafting error,” he/she had failed to mention certain legal issues and factual findings in his/her written order, even though he/she had made them (id.). In a more extreme circumstance, a judge realized belatedly that he/she had imposed a legally incorrect and excessive sentence on a criminal defendant as a second felony offender, because the second offense was not a violation of the Penal Law (see Opinion 08-86). Even though the defendant had already served the sentence, the Committee advised the judge to notify the defendant’s attorney and the prosecutor of the error (see id.).

         Moreover, a judge with relevant factual knowledge relating to a pending or impending case may be able to provide information to a party’s attorney voluntarily, absent factors creating an appearance of impropriety. For example, a judge who witnessed an argument between two individuals may recount his/her recollection of the event to one individual’s attorney to determine whether the event may be actionable (see Opinion 95-148). A judge also may convey to the attorney for the child in a custody case objective factual information about the judge’s experience with the child’s parent that is relevant to the custody matter, although the judge “must avoid any appearance he/she is advocating for any party in the case” (Opinion 10-118). A judge also may write a letter to a law firm providing information about an attorney for use in the attorney’s discrimination lawsuit, “as long as the information is limited to objective facts” (Opinion 92-55).

Conversely, a judge generally may not interject him/herself into a pending proceeding except at the request of an appropriate agency or the tribunal, or as permitted by applicable rule or law (see Opinion 16-178 [discussing prior opinions]). In particular, a judge “should not adopt the role of an advocate” (Opinion 98-77). Thus, in Opinion 98-77, the Committee advised a judge may not send “a letter to the Appellate Division expressing the judge’s disagreement with the Appellate Division’s reversal in an appeal from a proceeding that was before the inquirer” (id.). The Committee noted that the judge would be “advancing arguments on behalf of a party to the proceeding whose interests were adversely affected by the appellate ruling. Seeking reconsideration of that decision is a matter for the aggrieved party to pursue, and not the judge” (id.). Likewise, in Opinion 06-36, the Committee advised that a judge who was disqualified from a case should not, at the request of a party’s attorney, prepare and submit an affidavit concerning his/her prior rulings to the new judge in the case.¹ The Committee has also cautioned that, in some circumstances, a judge’s proposed extra-judicial involvement with an individual who recently appeared before him/her “could readily call the judge’s impartiality into question and/or create an appearance of impropriety” (Opinion 17-15 [discussing prior opinions]).

These lines of opinions, while distinguishable,² provide some guiding principles. Where, as here, the judge admittedly does not recall his/her precise words, but is challenging the accuracy of the official transcript based on circumstantial evidence such as his/her usual practices, the absence of objections in the record, and comments from some court reporters about the challenges of transcribing the judge’s comments, the judge’s proposed intervention could be seen as tantamount to outlining appellate arguments for the prosecutor. This is clearly the role of an advocate and therefore impermissible (see Opinions 10-118; 98-77; 16-178). The potential appearance of impropriety is only heightened by the fact that the statement the judge wishes to “correct” in the official transcript is a basis for the appeal.³

Under these circumstances, the judge may not contact the parties involved in the appeal to advise them that he/she believes the transcript is inaccurate.

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         ¹ The Committee noted that the presiding judge could, if desired, choose to consult with the disqualified judge as he/she deemed necessary or appropriate (see Opinion 06-36; cf. Opinion 16-178 fn 2; 22 NYCRR 100.3[B][6][c]).

         ² Here, for example, the judge is not attempting to redress an error he/she made and is not a traditional “fact witness.”

         ³ Indeed, if defendant-appellant’s counsel found the judge’s arguments compelling, he/she might have to discontinue that portion of the appeal or withdraw as counsel. Thus, the judge’s proposed conduct could, potentially, introduce an unnecessary ethical conflict.