March 19, 2020
Digest: A judge may teach a law school course based on a now-concluded homicide trial in his/her jurisdiction only if the time for appeals is exhausted and no related matters are pending or reasonably foreseeable. In teaching the class, the judge may only use materials from the public record.
Rules: 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(11); 100.4(A)(1)-(3); 100.4(B); Opinions 16-178; 14-26; 13-82; 12-126; 11-77; 10-206; 10-189; 10-153; 04-110; 01-03; 97-132; 95-105.
A full-time judge asks if he/she may teach a law school course that would provide students with a holistic view of an actual homicide trial the judge presided over and tried to verdict. The judge would select a case in which the appeals process has been exhausted and would only disseminate materials that are part of the public record. For example, the judge would not disclose grand jury minutes and would redact documents appropriately as needed. During the course, students would review and analyze discovery, draft and argue pre-trial suppression motions, and prepare opening and closing arguments.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities such as teaching, provided that such activities are not incompatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-; 100.4[B]). A judge may not, however, make any public comment on a matter that is “pending or impending” in any court in the United States or its territories (22 NYCRR 100.3[B]), including “one that is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).
Preliminarily, we reaffirm our well-established but very narrow exception to the public comment rule: it is permissible when a judge is teaching a regular course of study at a law school or college (compare Opinions 10-189 [law school course]; 95-105 [university course on criminal justice, punishment, sociology of law, and criminology] with Opinions 11-77 [CLE program]; 01-03 [panel discussion]; 97-132 [single lecture at law school]). The exception is strictly limited to situations where the judge, as teacher of a regular course of study, wishes to comment in the classroom on a pending or impending case arising in another jurisdiction (see Opinions 13-82; 11-77; 10-189). Because this “regular course of study” exception does not permit comment on pending or impending cases arising in that judge’s court or in a court within the judge’s jurisdiction (see e.g. Opinions 13-82; 12-126; 10-189), and this judge wishes to use a case in which he/she personally presided, the key question is whether the case is “pending or impending” within the meaning of the public comment rule.
A pending proceeding is one that has begun but has not yet reached final disposition, and an impending proceeding is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U]-[V]; Opinion 10-206). In essence, the “prohibition lasts as long as the case is ‘pending or impending’ in any respect” (Opinion 16-178). This means “at least until the time for appeals has expired and often longer” (Opinions 13-82; 10-153). A matter is pending or impending even after the original trial is complete if any appeal, collateral proceeding, parole hearing, or other proceeding in the case is pending or likely (see Opinion 10-206).
Thus, for example, in Opinion 13-82, we said a judge may not teach a law school course analyzing a highly publicized local criminal case while a closely related civil case remains pending. Likewise, “a judge may not comment even on previously decided aspects of a matter that have been rendered moot, because the ‘case remains pending, regardless of the disposition of a particular issue and that suffices to maintain the prohibition against public comment’” (Opinion 14-26 [citation omitted]). Conversely, a judge may publicly discuss a case where the appeals process has been exhausted and there has been no litigation involving the matter for five years (see Opinion 04-110).
Here, the inquiring judge may teach the proposed law school course provided he/she selects a case that is not “pending or impending” in any respect, the appeals process in the case has been exhausted, and the judge is satisfied that no related matters are pending or reasonably foreseeable. In teaching the class, the judge must only provide students with materials from the public record. The judge must not disclose or use grand jury minutes or other nonpublic materials, even if he/she would redact them for pedagogical purposes (cf. 22 NYCRR 100.3[B] [a judge “shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity”]).