Opinion 99-113

June 18, 1999

Digest:         A judge who presided over a capital murder case should not comment about the case at a training seminar for prosecutors, if an appeal or collateral proceeding in the case is pending or likely.

Rule:            22 NYCRR 100.3(B)(8); Opinion 97-132 (Vol. XVI); Joint Opinion 98-126/98-129.

Opinion:

        The inquiring judge has been invited by a State prosecutors training institute to participate in a panel discussion at a prosecution seminar on the subject of death penalty trials. As stated by the judge, "[o]bviously, the reason for inviting me is that I presided over one of New York's first death penalty trials under the 1995 law." The judge is of the belief that the prosecutors "will, at the very least, ask me about the jury selection procedures and the sentencing proceeding in the ______________ case." Accordingly, the judge asks whether and to what extent participation in the training institute's seminar is permissible.

        At issue is the scope of section 100.3(B)(8) of the Rules Governing Judicial Conduct, which states (22 NYCRR 100.3[B][8]):

(8) A judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories. The judge shall require similar abstention on the part of court personnel subject to the judge's direction and control. This paragraph does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This paragraph does not apply to proceedings in which the judge is a litigant in a personal capacity.

        Two opinions of the Committee addressing the issue are particularly apposite. In Joint Opinion 98-126/98-129, the inquiring judge was presiding over a criminal proceeding that was originally a capital punishment case when he/she was asked to speak at a law school alumni association meeting about death penalty related decisions made by the judge. In responding to the inquiry, the Committee stated, in part:

The judge, however, may not comment specifically on the pending matter, beyond explaining the procedures of the court, even though the decisions involving capital punishment have been mooted by the decapitalization of the case. Opinion 95-105 (Vol. XIII). The case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment.

       In that instance, it was anticipated that the trial would most likely still be ongoing at the time of the judge's presentation to the group. But, what if the trial had been concluded and the judge's involvement had ceased? That circumstance was addressed by the Committee in Opinion 97-132 (Vol. XVI). There, the defendant had been convicted of murder in the second degree, and the judge was asked to lecture at a law school about the case. In advising that the judge not give such a lecture, the Committee noted that "an appeal in this proceeding is likely. The proceeding, therefore, is still pending and any comments by the judge before a law school audience at this point must be regarded as impermissible public comment."

       The inquirer in the present inquiry does not state whether an appeal (or some collateral proceeding) is pending or likely. If such is the case, the Committee is of the opinion that the judge should not comment before the prosecutors institute about the case over which the judge presided.