Opinion 18-28

June 21, 2018

 Digest:         (1) The judiciary has a strong interest in bringing to light possible repeated or systemic perjury or corruption on the part of institutional witnesses which, if unaddressed by appropriate authorities, could adversely affect the judicial process and undermine public confidence in the judiciary. (2) Thus, a judge, any time in his/her sole discretion, may forward published decisions that appear to involve corrupt or perjured police officers to an appropriate investigative authority, including a police department’s Inspector General. Such conduct is not impermissible merely because the Inspector General requested them. (3) Absent a legal duty to comply with the Inspector General’s request, a judge may, in his/her sole discretion, decline to respond.

Rules:          22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.3(A); 100.4(A)(3); Opinions 16-25; 15-217; 15-215; 15-165; 15-30; 14-154; 14-11; 13-183; 13-19; 12-132; 09-94; 09-38; 08-99; 07-185/08-68/08-77; 07-115; 96-111.

Opinion:

         The inquiring judge, who presides in a criminal part, received a letter from a local police department’s Inspector General asking for “copies of any orders, opinions, letters, or similar documentation from the last six years in which you or your colleagues on the bench have called into question, raised concerns about, or made findings of fact regarding the truthfulness of individual [police] officers testifying in your courtrooms or [police] Members of Service generally. For example, this may be documented in a case disposition or in correspondence with another entity (e.g., [the local police department], District Attorney Offices, Office of the Attorney General, etc.).” The letter targets recently expressed concerns “about the credibility of police officers in the courtroom” and states the “material is being requested for internal investigative review.” The letter requests “a response, even if you have no such documentation.” The inquiring judge asks if he/she may respond to the letter or otherwise comply with the request for information and, alternatively, whether he/she may decline to respond.

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

         We note, initially, the extraordinary breadth of the Inspector General’s request. On its face, the letter asks this judge to review six years’ worth of case files of “you or your colleagues on the bench” for any possible concerns about police officers’ testimony. Moreover, as summarized in Opinion 13-183 (citations omitted), we have previously advised:

Judges “must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office.’” For example, a court should not create or compile a list of “scoffed” defendants at a local law enforcement agency’s request; should not comply with a district attorney’s request to review lists of cases compiled by the district attorney’s office and indicate the status of each case for the district attorney’s convenience; should not provide a district attorney with an annotated court calendar in advance of court night indicating each defendant’s prior driving record; and should not provide the district attorney each month with a list of all open cases pending in the justice’s court. The common thread throughout these opinions is that collecting or preparing information “specifically and exclusively for the benefit” of the prosecutor could compromise public confidence in the judiciary’s integrity, impartiality and independence, and create an appearance of impropriety.

Following these principles, we have also advised that a judge must decline a district attorney’s request for “a list of all pending offenses, regardless of the level, including traffic infractions,” absent a legal requirement to do so (Opinion 14-154); must not fax a copy of the court’s weekly calendar to the Department of Homeland Security “for their review and determination in what defendants may be potential risks or illegal aliens, for [the] office to pursue” (Opinion 15-217); and must not provide the local police department with a “monthly report cataloging the number of arrests, parking tickets, traffic tickets and calls for service” involving entities such as state and local police, sheriff’s department, and park police (Opinion 15-215).

         Although the Inspector General’s request might at first seem to raise similar concerns and could also impose substantial administrative burdens on the inquiring judge, we note a countervailing consideration here, absent in prior inquiries. Specifically, the judiciary itself has a strong interest in exposing and curtailing any ongoing practice or pattern of perjury or other similar corruption on the part of police officers who regularly appear in criminal matters (cf. Opinion 14-11 [noting “the constitutional dimensions of a judge’s duties” in criminal cases]). Indeed, sometimes judges may be in the best position to help identify such individuals. Thus, if a judge is legally permitted to provide information about an apparent corrupt or perjured police officer to an appropriate investigative authority, we believe it is generally consistent with improving the law and the legal system for him/her to do so (cf. Opinion 16-25 [a judge may, in his/her discretion, notify a police officer’s commander of the officer’s non-compliance with a legal mandate]).

         In essence, our prior opinions considered requests by law enforcement (see Opinions 15-217; 15-215; 13-19), prosecutors (see Opinions 14-154; 13-183; 12-132; 09-94; 09-38; 07-115), or the media (see Opinions 15-30; 96-111; 15-165) that compromised judges’ independence, as they requested courts to compile information for their own convenience and/or to facilitate their goals. Here, by contrast, the judiciary itself has its own independent interest in exposing possible repeated or systemic perjury or corruption by institutional witnesses, which, if ignored by appropriate authorities, could affect the administration of justice and undermine public confidence in the judiciary.

         We thus conclude this judge may, at any time and in his/her sole discretion, forward published decisions that appear to involve police corruption or perjury to an appropriate investigative body, including the Inspector General (cf. Opinions 16-25 [a judge is not required to - but may in his/her discretion - notify a police officer’s commander of the officer’s non-compliance with a legal mandate]; 08-99 [a town justice who discovers evidence that certain court personnel may have engaged in misconduct suggesting possible corruption within the court itself “may, but is not obliged to, report the apparent misconduct to [...] the district attorney, other municipal officials or the police]).¹

         Such actions do not become impermissible merely because the Inspector General has specifically asked for the information. However, in light of the seemingly broad request here, we remind the judge that his/her judicial duties take precedence over all his/her other activities (see 22 NYCRR 100.3[A]; cf. 22 NYCRR 100.4[A][3]). We trust the judge will not allow any response to the request to interfere with proper performance of his/her adjudicative duties.

         Finally, we further conclude the judge may, in his/her sole discretion, decline to respond to the Inspector General’s request.

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¹ Judges should comply with “all applicable statutory provisions concerning confidential information or sealed records” (Opinion 07-185/08-68/08-77).