Opinion 15-113

June 11, 2015

Digest:         A judge may be the introductory speaker at a program focused on discouraging gun violence, provided the program maintains a balance between speakers representing prosecution or law enforcement perspectives and speakers representing defense perspectives.

Rules:          22 NYCRR 100.1; 100.2(A); 100.3(B)(6); 100.3(B)(8); Opinions 13-140; 13-34; 13-13; 12-74; 12-70; 07-52.

Opinion:

         A judge asks whether he/she may participate in a Criminal Justice Services Division program which seeks to discourage gun violence among individuals the Division deems “most at risk” of such violence. The program will take place at a courthouse and includes prosecutors, law enforcement, the Legal Aid Society, social service providers and “key community players.” The invited audience will consist of probationers and parolees who have no pending charges. The inquiring judge would be the first speaker, and would introduce the program and “encourage the participants to continue to lead law-abiding lives and to take advantage of the social service resources being made available to them” during the program and would then leave. Thereafter, law enforcement personnel and Legal Aid Society attorneys will speak on subjects such as the dangers and consequences of gun violence, victims of gun violence will speak about the impact gun violence has had on them and their community, and social services providers will offer support to participants.

         An independent and honorable judiciary is indispensable to justice in our society (see 22 NYCRR 100.1). Therefore, a judge must “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and must always avoid even the appearance of impropriety (22 NYCRR 100.2[A]).

         As the Committee has recognized, “the community benefits from having judges take an active part in community affairs whenever possible” (Opinion 13-13). Nonetheless, a judge may not “participate in otherwise laudable community activities that will compromise the judge’s impartiality” (id.), and thus must not “participate in a program that might be perceived as a law enforcement program” (Opinion 07-52). For example, a judge may not participate in a city program designed to revitalize crime-ridden neighborhoods when, under the circumstances presented, the program as a whole could be perceived as a law-enforcement program, and could also result in cases which would frequently come before the judge’s court (see id.). Similarly, a judge who presides in a criminal part may not lecture at an anti-violence program at a local correctional facility, where attendees are persons incarcerated while either awaiting disposition of an unresolved case or awaiting sentence, and could appear before the judge as criminal defendants (see Opinion 13-34).

         By contrast, a judge may participate in a panel discussion about preventing and reducing underage drinking, where the program is educational in nature and is unlikely to be perceived as a law enforcement program (see Opinion 12-74). A judge also may serve on a local criminal justice council which seeks to “intervene for at risk youth and adults, address victims’ needs and reduce recidivism,” where the council includes “members representing all aspects of the criminal justice system including, but not limited to, the interests of the victims of a crime and those charged with a crime” (Opinion 12-70).

         Although this program is organized by law enforcement entities, it is primarily an effort to dissuade at-risk individuals from resorting to gun violence in the future, rather than a traditional law enforcement program. Moreover, while the intended audience of probationers and parolees could potentially appear before the inquiring judge, Opinion 13-34 is distinguishable because the participants are not currently incarcerated and have no pending charges. Under these circumstances, provided there is a clear balance between speakers representing prosecution or law enforcement perspectives and speakers representing defense perspectives, it is permissible for the inquiring judge to introduce the program as proposed. The judge should, of course, abide by all applicable limitations on judicial speech (see e.g. Opinion 13-140; 22 NYCRR 100.3[B][6] [ex parte communications rule]; 100.3[B][8] [public comment rule]).