Opinion 23-70
June 15, 2023
Digest: On these facts, the judge is not required to disqualify from a contentious criminal case, notwithstanding the defense counsel’s claims of bias, provided the judge determines they can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(4)-(6); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 22-192; 16-16; 14-121; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge is presiding in a criminal case involving charges of making a terroristic threat. Defense counsel accused the judge of being biased against the defendant because the judge (1) suggested the defendant’s criminal history reflected “white privilege” as compared with similarly situated non-white defendants; (2) instructed or permitted their law clerk to run a public internet search which pulled up information about the criminal record of a psychiatrist who submitted a letter on the defendant’s behalf; and (3) implied that the defense attorney was attempting to harass a protected party by representing the defendant on a civil debt-collection matter. The judge believes they can be fair and impartial, but asks if disqualification is nonetheless ethically required.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judge’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding,” unless an exception applies (22 NYCRR 100.3[B][6]). Moreover, a judge must disqualify where specifically mandated (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]; Opinion 22-192).
We cannot opine on the legal or ethical propriety of the inquiring judge’s past conduct or comments; we can only advise whether the facts as presented by the judge require the judge to disqualify from the case going forward. None of the specific objective disqualifying standards found in 22 NYCRR 100.3(E)(1)(a)-(f) appear to be implicated in the described interactions between the judge and counsel at various conferences and sidebars. In our view, the judge’s impartiality cannot “reasonably be questioned” simply because an attorney is unhappy about the judge asking difficult questions or testing their arguments.
1. “White Privilege” Comment
As described in the inquiry, defense counsel requested that the inquiring judge modify a prior securing order by eliminating the bail requirement and allowing the defendant to be released on recognizance. The prosecution and defense made strongly conflicting arguments about the defendant’s criminal history. The judge commented that a plea reduction defendant accepted in a prior case seemed to reflect “white privilege,” in that defendant was given “opportunities not available to most similarly situated [minority] defendants.” The judge then removed the bail requirement and released defendant under supervision so long as defendant lived with his parents and continued psychiatric treatment. Defense counsel apparently claims that these facts demonstrate the judge’s racial bias and therefore warrant the judge’s disqualification.
In our view, where the prosecution and defense counsel are making arguments to a judge based on the defendant’s criminal history, judicial bias cannot be presumed merely because a judge draws on their own judicial experience to comment on how the defendant’s history of plea opportunities and/or convictions compare with those of other similarly situated defendants. Given a judge’s responsibility to avoid bias and prejudice in performing judicial duties (see 22 NYCRR 100.3[B][4]-[5]), and the court system’s efforts to curb both explicit and implicit racial bias, we see no reason to question a judge’s impartiality merely because the judge comments on an apparent pattern of race-based disparities observed by the judge.
2. Research on Out-of-State Psychiatrist’s Credentials
As described in the inquiry, defense counsel provided “a copy of a computer-generated letter from a psychiatrist who practices out of county indicating that [defendant] had been his patient and ‘remains a patient upon [defendant’s] release from confinement.’” The judge’s law clerk conducted a brief public internet search on the psychiatrist which indicated that the psychiatrist had been incarcerated for health care and tax fraud. The judge shared this information with all counsel. The judge nonetheless released the defendant under supervision on the conditions that defendant live with defendant’s parents and continue psychiatric treatment. Defense counsel claims the extra-judicial research reflects the judge’s bias.
In our view, where defense counsel asks the judge to release a defendant based on a proffered letter from an out-of-state psychiatrist who allegedly had treated and would continue to treat the defendant during the case, judicial bias cannot be presumed merely because the judge discloses that their support staff checked basic credentials or licensure using resources open to the general public, and then promptly shares the information received with all parties.[1]
3. Comment on Defense Counsel’s Proposed Debt Collection Activities
Defense counsel unsuccessfully sought to modify another judge’s previously issued order of protection, and explained that their law firm was retained to collect an outstanding debt owed to the defendant by the protected party. In response, the judge stated that defendant’s possible civil claims were not part of the criminal case and should be dealt with elsewhere. Further, the judge said that if defense counsel’s firm called the protected party as collection agents, the protected party could view the call as harassment by a third party on behalf of the defendant.
In our view, judicial bias cannot be presumed simply because the judge warns defense counsel of the possibility that civil collection activities might create an impression that the defendant is attempting to circumvent the order of protection. The accuracy of the inquiring judge’s comment and/or any related legal determinations made by the judge are legal questions on which we cannot comment.
Conclusion
We cannot say that these incidents – whether singly or in combination - raise reasonable questions about the judge’s impartiality or otherwise objectively require the judge’s disqualification (see 22 NYCRR 100.3[E][1]). Thus, unless the situation fits neatly into one of the categories of disqualifying activities under the rules (see 22 NYCRR 100.3[E][1][a]-[f]), the judge’s disqualification is “within the personal conscience of the court” (Moreno, 70 NY2d at 405; Judiciary Law § 14). To determine otherwise would open the door to judge-shopping by disappointed attorneys and litigants who disagree with the judge’s comments and reasoning at every stage of a case (see generally Opinion 16-16; 14-121).
Accordingly, we conclude that the inquiring judge need not disqualify from the case, provided the judge determines that the judge can be fair and impartial.
[1] The inquiry describes an apparently minimal credentials check, rather than independent factual research or investigation by the judge or court staff.