September 6, 2018
Digest: A judge may not participate in an interview with a former juror who wishes to write a book about a case over which the judge presided, where related proceedings remain pending or impending.
Rules: 22 NYCRR 100.0(U)-(V); 100.2; 100.3(B)(8); Opinions 15-100; 04-01.
A judge presided over a lengthy joint trial. One case “is completely resolved,” while the other “has open Surrogate’s Court proceedings.” The same underlying incident sparked extensive tort litigation, and “some of these cases, involving many of the same defendants, are still pending.” The judge asks if he/she may agree to be interviewed “to get my perspective” for a book a former juror is writing about his/her jury experience in the trial.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and may not make any public comment on any “pending or impending proceeding” in any court 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]).
As we explained in Opinion 15-100 (citations omitted):
The ban on public comment on pending or impending proceedings is very broad because “a matter remains ‘pending or impending’ at least until the time for appeals has expired and often longer,” that is, “as long as any appeal or collateral proceeding in the case is pending or likely.” Indeed, the Committee has advised that “a judge may not comment even on previously decided aspects of a matter that have been rendered moot, because the ‘case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment.’”
Once the time for appeals has been exhausted and no further or collateral proceedings are reasonably foreseeable, it may be permissible for a judge to [comment]; but, even then, the judge must proceed with extreme caution. The Committee has advised that a judge’s discussion of his/her own prior decisions in proceedings which are no longer pending or impending “should not go beyond the published decision.”
Here, the former juror, in his/her capacity as an author, seeks to interview the judge for his/her “perspective” about a case no longer before the judge, but several interconnected cases remain pending or impending. Moreover, given the former juror’s purpose, “it is apparent that the comments likely to be elicited from the [judge] will not be restricted to the permissible non-controversial, informational areas contemplated by the Rule” (Opinion 04-01).
Accordingly, the judge may not participate in the interview.