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“Hot mics” and judicial ethics

March 8, 2023

By Cynthia Gray

National Ethics Awareness Month is observed in March every year.  For more information on judicial ethics, check out the Center for Judicial Ethics webpage and sign up for the Judicial Conduct Reporter and the Center for Judicial Ethics blog. Follow the National Center for State Courts on Facebook, Twitter, and LinkedIn.

Three judicial discipline cases from the pandemic era demonstrate how judges should always assume they can be overheard as courts continue using remote or hybrid hearings to make some proceedings more accessible and convenient.

One case emphasized that judicial officers “should treat telephonic proceedings with the same level of dignity and decorum . . . expected in a public hearing in open court.”  In the Matter of DalPra, Order (New Hampshire Supreme Court November 10, 2022), was based on findings and recommendation. During a telephone hearing, a marital master made many inappropriate comments under his breath that he did not intend to be part of the record. The parties or lawyers had not heard his remarks, but the transcriptionist had reported them. For example, the master said, “Who gives a f**k?” when the father was testifying about matters the master did not believe were relevant. In addition, while the mother was being questioned, the master appeared to have a discussion with a staff member, whispering, for example, “And while you’re looking through that, I’m gonna go pee.” The findings noted that the master probably would not have made those remarks if the hearing were in open court but that he “became lax in verbalizing his feelings . . . because no one was present to witness his behavior.”

Another decision concluded that it was “ill-advised” for “a judge to vent to trusted court associates even in private.”  In re Antush, Stipulation, agreement, and order of admonishment (Washington State Commission on Judicial Conduct November 19, 2021). In that case, after everyone but the judge and two clerks had left the courtroom during a November 2020 jury trial, the judge had stated:

It’s frustrating because I don’t think this ever should have been tried. It’s a simple misdemeanor. The guy has no record. Best case scenario, he got carried away. . . . Do you really want to f*** with someone’s life like that? Apparently. Worst case scenario …  The thing is, like I didn’t hear anybody say they saw the guy throw jack.  Did you hear that … [recording stops].

Although the judge “reasonably believed” that only court employees could hear him, the courtroom’s audio recording was still activated and being livestreamed through the YouTube channel the court used to allow public access during the pandemic. The prosecution learned about the judge’s comments that evening from the broadcast and moved for a mistrial, which the judge granted.

In the third case, a judge reported that he had started “placing physical reminders by the equipment used for remote meetings” after he had said, “Kicked that mother**cker’s a**” when he thought he was no longer on the line following a hearing; however, the attorneys could still hear him.  In re Dixon, Stipulation, agreement, and order of admonishment (Washington State Commission on Judicial Conduct June 24, 2022).