Opinion 17-04

January 26, 2017

Digest:         A judge may not attend a three-day human trafficking seminar sponsored by federal prosecutorial and law enforcement agencies, where the program will focus primarily on strategies for effective prosecution.

Rules:          22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); Opinions 16-142; 15-99; 04-20; 03-45; 94-31; 87-28(a).

Opinion:

         A judge who sometimes presides in criminal cases involving Native American defendants has been invited to attend a three-day out-of-state seminar on “Human Trafficking in Indian Country” co-sponsored by the Department of Justice and the Federal Bureau of Investigation.¹ The program invitation states:

This seminar is intended for federal and tribal criminal justice professionals working in Indian Country. This seminar will serve to enhance participant’s understanding of legal definitions, elements of federal offenses, and current issues and challenges of human trafficking enforcement. The training will include in-depth discussions of effective strategies for identifying, investigating and prosecuting human trafficking cases, including prosecutor’s roles in planning successful enforcement operations; strategies for developing victim testimony; pretrial litigation strategies; effective trial presentation in human trafficking prosecution; and sentencing issues.

There is no fee for participation, and the Department of Justice would pay for the judge’s travel and lodging expenses. The judge asks if he/she may attend the seminar.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must uphold public confidence in the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1; 100.2[A]; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]).

         While the program will cover some material of general interest, such as “legal definitions” and “elements of federal offenses,” its primary focus is on strategies for effective prosecution of human trafficking charges. Indeed, the program promises “in-depth discussions” of prosecutorial strategies over a three-day period, with an eye to “effective strategies” for prosecutors at every stage, from “planning successful enforcement operations” to “sentencing issues.” There is no indication that defense attorneys are invited to attend or participate, or that defense perspectives will be presented.

         The Committee has advised that a judge may not attend a New York State Division of Criminal Justice Services conference intended to “enhance the prosecution of” domestic violence and sexual assault cases, because the judge’s attendance would undermine public confidence in judicial impartiality (Opinion 04-20). Similarly, judges may not attend a training program sponsored by a law enforcement agency, where the program aims “to provide the information essential for effective prosecution of the drunk/drugged driver” and thereby “to maximize enforcement” (Opinion 94-31). As the Committee explained (id.):

The training program’s purpose and agenda are clearly planned to enhance the conviction rate of people accused of alcohol and drug-related vehicle and traffic crimes. While that is or may be a laudable, overall societal goal, it is not one which the [j]udiciary shares as part of its constitutional mandate. The [j]udiciary exists to assure fairness and impartiality to all those accused of crime, and to protect their legal rights. To participate in the proposed educational enterprise would at least appear to place that mission at risk. Judges, of course, should be encouraged to attend seminars, but only ones whose agendas are not born of strictly partisan concerns.

         Judges also may not attend “law enforcement training on how to process a DWI arrest at the state police headquarters,” as “it would be difficult to avoid the public perception that a law enforcement agency was being allowed to educate the judiciary on the ‘proper way’ to conduct such arrests” (Opinion 15-99). Nor may a judge participate in a “ride along” program with the local police department, even when “the program is made available to all public officials and citizens” (Opinion 03-45). In these and other such scenarios, “an appearance of alignment with prosecutorial and/or law enforcement interests” may “erode public confidence in the judiciary’s impartiality” (Opinion 16-142).

         The prosecution-focused seminar described here is likewise “born of strictly partisan concerns” (Opinion 94-31) and could undermine confidence in judicial independence and impartiality (see Opinions 15-99; 04-20). Indeed, immersion in “a partisan presentation with respect to the treatment to be accorded to a specific category of cases” could, under these circumstances, create an appearance that the judge has been “exposed to partisan conditioning by way of an ‘educational seminar’” (Opinion 87-28[a]). Accordingly, this judge must not attend the three-day seminar on Human Trafficking in Indian Country sponsored by federal prosecutorial and law enforcement agencies, where the program will focus on strategies for effective prosecution.

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         ¹ The term “Indian country” is defined in federal law (18 U.S.C. § 1151).