Opinion 24-161

October 30, 2024

Digest: A judge may not participate in training for an advocacy group’s “mitigation specialists” who work exclusively with defense counsel, where the training program is akin to a mock trial and the participants include only one “side.”

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(B); Opinions 14-31; 12-44.

Opinion:

          An advocacy group that provides mentorship and resources for youth has invited the inquiring judge to participate in training the entity’s “mitigation specialists.”  The entity’s mission includes “work[ing] with defense counsel at key points along the case process to minimize a young person’s time spent in jail, and to reduce the system’s reliance on youth incarceration,” and its mitigation specialists prepare and present case plans to judges in court.  The proposed training program is akin to a mock trial, in that the mitigation specialists would learn by presenting case plans in fictional cases to the inquiring judge.  The judge asks if he/she may participate.

          A judge must always avoid even the appearance of impropriety and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge may engage in extra-judicial activities, including teaching and lecturing, as long as the are compatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]). 

          A judge’s participation in training programs intended for only one “side” of criminal cases is subject to limitations because a judge “must not be perceived as giving strategic or tactical advice on a partisan basis” (Opinion 14-31).  Indeed, we have previously advised that a judge may not preside at and offer a critique of a mock trial as part of a trial skills training program exclusively for prosecutors (see Opinion 12-44).  In that opinion, we concluded that “it would be difficult, if not impossible, for a judge who is presiding over and critiquing a mock trial as part of a trial advocacy program for a ‘one-sided’ audience to avoid the appearance that he/she is teaching or giving partisan advice on litigation strategy or tactics to that ‘side’” (id.).

          Here, the mitigation specialists’ role is closely and exclusively aligned with defense attorneys in cases involving youth.  In the training program, the inquirer has been asked to play the role of judge in fictional cases being presented.  For the inquiring judge’s participation to be of value to the organization, the judge’s role will necessarily involve presiding and critiquing the mitigation specialists’ presentations, much like a mock trial.  However, the training comprises only one “side” because the mitigation specialist participants are aligned with defense counsel and there is no indication of any prosecution involvement in the training. 

          Accordingly, the judge may not participate.