Opinion 08-170

September 11, 2008

Digest:         A judge who, as the result of information provided by representatives of the FBI, believes that he/she may be a future target of violent acts by the defendant in a proceeding pending in the judge’s court, should disclose the information to all the parties and their attorneys on the record. If the judge has a personal bias or prejudice concerning the defendant, the judge must disqualify him/herself and exercise recusal. If the judge does not have a personal bias or prejudice concerning the defendant, disqualification is within the judge’s discretion.

Rules:          People v. Moreno, 70 NY2d 403 (1987); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(F); Opinion 05-78.

Opinion:

         During the course of a proceeding before the inquiring judge, the defendant was arrested on two separate occasions for possessing bombs and bomb-making materials. After the defendant was incarcerated, FBI representatives visited the judge at his/her home and informed him/her that, while they were investigating the defendant, they found information about the judge in the defendant’s computer. As a result, the judge believes that he/she is a future target of violent acts by the defendant.

         During the next scheduled court date in the proceeding, the judge disclosed on the record that FBI representatives had visited him/her and the details of the visit. The parties’ attorneys were present at the time, but the defendant was not as he/she was incarcerated in a facility without teleconferencing facilities and was not physically present in the courtroom. The judge intends to repeat the disclosure the next time the defendant is able to participate. The judge asks if he/she must do anything further.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge, therefore, must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned, including where a judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][i]).

         In Opinion 05-78, the Committee advised that a judge, who learned from an attorney that the attorney’s client threatened to kill the judge and the attorney representing another party in the proceeding, should disclose the threat on the record to the parties and their attorneys. Here, although the source of the judge’s concern for his/her safety arises from information the judge learned outside the context of the pending case, it is the Committee’s view that the judge should disclose the information to the parties and their attorneys. The judge, therefore, should disclose the details of his/her contact with the FBI again when the defendant can participate. However, if the judge at this point has a personal bias or prejudice concerning the defendant, the judge must disqualify him/herself from the proceeding (see 22 NYCRR 100.3[E][1][a][i]) and, because remittal is not available (see 22 NYCRR 100.3[F]), must exercise recusal.

         In the absence of any personal bias or prejudice, once the judge discloses to the defendant the details of his/her visit from the FBI, it may become clear to the judge that his/her impartiality might reasonably questioned if he/she continues to preside, in which case the judge must disqualify him/herself from the proceeding (see 22 NYCRR 100.3[E][1]), subject to remittal (see 22 NYCRR 100.3[F]). Or the defendant may move for the judge’s recusal, in which case it is up to the judge to determine whether disqualification and/or recusal is warranted (see People v. Moreno, 70 NY2d 403 [1987]).