Opinion 16-27

March 16, 2016

Digest:         A JHO may not write a letter supporting an inmate’s efforts to gain parole and/or clemency.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.6(A); Opinions 15-74; 10-188; 08-143; 05-29; 02-47; 99-07; 96-127.

Opinion:

         A judicial hearing officer (JHO) asks if he/she may “participate in efforts by an incarcerated New York State prisoner to gain parole and/or clemency.” In particular, the JHO wishes to write “a letter to the authorities” and give his/her status as “a retired judge” who formerly presided in criminal cases. He/she has had no involvement with the inmate or the inmate’s case, has never met him/her, and would not be the inmate’s attorney.

         JHOs must obey the Rules Governing Judicial Conduct in performing their judicial duties and “otherwise shall so far as practical and appropriate use the rules as guides to their conduct” (22 NYCRR 100.6[A]). Thus, a JHO must always avoid even an appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). For example, a JHO may not lend his/her office’s prestige to advance private interests or voluntarily testify as a character witness (see 22 NYCRR 100.2[C]).

         Unquestionably, “judicial hearing officers are bound by the rules and the Committee’s application of those rules with respect to the writing of letters of reference” (Opinion 05-29). The Committee has consistently said the Rules prohibit judges and quasi-judicial officials from giving character references for individuals who are the subject of criminal or professional misconduct proceedings, “except when asked to do so directly by a tribunal, hearing officer or other governing body or official involved” (see Opinion 10-188). Consistent with such limitations, a judge may neither write a letter on behalf of a prison inmate who is seeking release on parole (see Opinion 99-07) nor endorse an individual’s petition for clemency (see Opinions 08-143; 96-127) nor speak with an executive branch representative about a prisoner’s clemency petition (see Opinion 02-47). Indeed, although a judge who is properly subpoenaed may testify as a character witness based on his/her personal knowledge of a convicted defendant, he/she may not request leniency in sentencing (see Opinion 15-74).

         Thus, the Committee concludes this JHO must not voluntarily write to authorities about the inmate’s application or otherwise recommend the inmate be paroled or shown clemency.¹

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         ¹ Although the inquirer’s remaining question is largely moot and/or hypothetical, the Committee notes for future reference that if he/she is subpoenaed on a matter where he/she possesses relevant personal knowledge sufficient to provide character testimony, then it would not be improper to mention in such testimony that he/she is a retired judge. Here, of course, because the JHO has no personal knowledge of the inmate’s character, he/she could not provide character testimony even if subpoenaed.