December 12, 1996
Digest: A judge may not sign a petition for the granting of executive clemency in favor of a prisoner convicted of espionage against the United States.
Rules: 22 NYCRR 100.2(C); Opinions 93-127,91-46,90-156, 89-73, 89-04
Speaking for a group of judges, the inquirer seeks an opinion as to the ethical propriety of the judges' signing a "petition or other remonstrance", addressed to the President of the United States, in support of their request for the grant of a presidential pardon to a federal prisoner now serving a life sentence in connection with his previous conviction on charges of espionage.
Section 100.2(C) of the Rules Governing Judicial Conduct state that "a judge shall not lend the prestige of judicial office to advance the private interests of... others ...". This rule also provides that "a judge shall not testify voluntarily as a character witness ".
The Committee has previously interpreted the prohibition against the giving of unsolicited character testimony as encompassing (1) the writing of a character reference on behalf of a former law clerk, to be submitted in connection with the former clerk's sentencing in a criminal proceeding (Opinion 89-04), (2) the writing of a reference on behalf of two lawyers, one awaiting sentencing and one seeking reconsideration of disbarment by the Appellate Division (Opinion 89-73), (3) the writing of a reference on behalf of an attorney under investigation by the disciplinary committee of one of the Appellate Divisions (Opinion 90-156), and (4) the writing of a reference on behalf of a friend in connection with the friend's criminal sentencing (Opinion 91-46).
The Committee sees no distinction between a plea for leniency made to the sentencing judge (Opinions 89-04, 89-73, 91-46, supra), and a plea for leniency made to the executive authority vested with the power to grant clemency, after the imposition of sentence. In either case, the judge, or group of judges, could be seen as using the prestige of their office to advance the private interests of others. Further, the circumstances of this particular case are such that "the subject matter ... may be inappropriately controversial for a proper public announcement by a judge" (Opinion 93-127).