Opinion 11-10

January 27, 2011

Digest:         A judge who is the victim of a crime in his/her judicial capacity may respond to inquiries from the media about how the crime has affected him/her, both personally and officially, while the individual who committed that crime is awaiting sentencing in federal court, but may not comment about the prosecution of the case or the sentencing while the case is pending, including any comment indicating or speculating as to how he/she might have conducted the case or what sentence he/she would impose.

Rules:          Criminal Procedure Law §380.50; 22 NYCRR 100.2(A),(C); 100.3(B)(8); Opinions 07-193; 07-104.

Opinion:

         A judge who is the victim of a crime in his/her judicial capacity asks whether he/she can respond to inquiries from the media about the case. The judge advises that the perpetrator is awaiting sentencing in federal court.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and must not lend the prestige of judicial office to advance his/her own private interests or the private interests of others (see 22 NYCRR 100.2[A]; 22 NYCRR 100.2[C]). In addition, a judge is prohibited from making any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]).

         The Committee previously has advised that a judge who is the victim of a crime is entitled to the rights that are afforded any other crime victim, including making a statement with regard to any matter that is relevant to the question of sentence (see Criminal Procedure Law §380.50; Opinion 07-193). The Committee so advised even though a judge is prohibited from making any public comment about a pending or impending case (see 22 NYCRR 100.3[B][8]). While this prohibition does not apply to proceedings in which the judge is a litigant in a personal capacity (see id.), a judge who is a crime victim is not a traditional litigant or party to the criminal proceeding. Nevertheless, the Committee deemed that a judge/victim should be treated as a litigant for the limited purpose of speaking at sentencing (see Opinion 07-193). Similarly, the Committee advised that a judge whose judicial chambers were burglarized may comply with a District Attorney’s request to write a letter to the parole board indicating the judge’s position on whether parole should be granted (see Opinion 07-104). The District Attorney specifically asked the judge to state his/her “feelings at having someone familiar with the [court] premises burglarize [his/her] chambers” (see id.).

         While the inquiring judge also is a crime victim, he/she does not ask to make a victim impact statement to the sentencing court or to write a letter to a parole board in response to an official request. Rather, the inquiring judge asks whether he/she can respond to media inquiries about the crime perpetrated against him/her.

         It is the Committee’s view that subject to some limitations, the inquiring judge may respond to inquiries from the media about the crime committed against him/her in his/her judicial capacity. As an elected public official who was victimized in that capacity, the public has a legitimate interest in knowing how the crime has affected the judge and his/her ability to continue to serve the public. Therefore, the judge may comment to the media about how the crime has affected him/her, both personally and officially. However, while the case is pending (including any potential appeals), the judge may not comment about the prosecution of the case or the sentencing, and must not speculate or give any other indication as to how he/she might have conducted the case or what sentence he/she would impose in similar circumstances.