Digest:  Under the circumstances, a judge should not appear on a television program in which the judge will be asked questions concerning the strength of the United States government's case against a particular federal prisoner, and which will also include an assessment by the judge of the credibility of witnesses who testified in the trial.
 

Rule:  22 NYCRR 100.2(C); 100.3(B)(8); 100.4(A)(1);
           Opinion 95-94 (Vol. XIII).
 
 

Opinion:

            A judge who has been invited to appear on a television program in connection with a news story about a federal prisoner inquires whether there are ethical impediments to such an appearance. The judge advises that the prisoner who is the subject of the program is currently serving a lengthy sentence for possession of explosives, and has been denied parole based on her alleged participation in a 1981 robbery-homicide. The judge further advises that he/she is familiar with the 1981 robbery-homicide case as a result of having represented one of the participants in that crime. It is expected that the television journalists preparing the program will question the judge about the strength of the case against the prisoner and will seek the judge's "assessment of the credibility of two cooperating witnesses." It is also anticipated that there will be no reference during the program to the inquirer's judicial office.

            Section 100.3(B)(8) of the Rules Governing Judicial Conduct states, "A judge shall not make any public comment about a pending or impending proceeding in any court ...." Further, section 100.4(A)(1) of the Rules states, "A judge shall conduct all of the judge's extra-judicial activities so that they do not ... cast reasonable doubt on the judge's capacity to act impartially as a judge."

            In accordance with these rules, this Committee has previously advised that a judge, whose participation in a television program might otherwise be ethically permissible, must "not advance positions on controversial subjects." Opinion 95-94 (Vol. XIII). The present inquiry refers to crimes which had received a great deal of public notoriety and thus the subject matter of the proposed television program can only be considered controversial. There is no way to determine in advance the specific questions that might be asked; and the judge's responses could be perceived as placing the judge in an advocacy position. It is of no significance that the inquirer is not being publicly identified as a judge. Surely there will be viewers who know of the inquirer's judicial status; and, in any event, there is no way to prevent a later publicizing of this fact. Additionally, there may be open cases in the overall matter, as well as further parole applications. In sum, there is a substantial possibility that the judge might be seen as lending the prestige of judicial office to advance the private interests of the person incarcerated, in contravention of section 100.2(C) of the Rules. Under such circumstances, it is our opinion that the judge should not participate in the program.