From the Summer 2001 issue of The News Media & The Law, page 45.
By Ashley Gauthier
Judge Thomas Penfield Jackson, speaking out of court, said he had never seen a stronger case against a defendant. The appellate court defended Jackson’s right to speak about the case and said that “a trial judge is entitled to form his own judgment as to the conduct of a defendant.”
That was the opinion of the U.S. Court of Appeals in Washington, D.C., (D.C. Cir.) when former Mayor Marion Barry tried to force Jackson to recuse himself from his sentencing for possession of crack cocaine in 1991.
Jackson, assigned to the Barry case, had spoken to an audience at Harvard Law School and discussed the trial. Barry asked Jackson to recuse himself, but the judge denied the request. On appeal, the court rejected Barry’s arguments and found that Jackson had not acted improperly. The court stated, “[a] judge’s candid reflections of what he has inferred from the trial about the defendant’s character and conduct simply do not establish bias or prejudice.” The court also ruled that “while the district judge’s extrajudicial voicing of his views . . . may be a violation of the Code of Conduct . . . any such violation does not necessarily create an appearance of personal bias or partiality such as to require recusal.” (In re Barry)
Jackson was treated quite differently by the U.S. Court of Appeals in Washington (D.C. Cir.) this year when Microsoft appealed his order splitting up the company. Jackson spoke to reporters about the case, often criticizing Microsoft and its founder Bill Gates. The appellate court said Jackson’s conduct created an appearance of bias and remanded the case to another trial judge to reconsider the remedy against Microsoft for antitrust violations. (U.S. v. Microsoft)
Judges are in a difficult position because they are discouraged from commenting on pending cases, but they are encouraged to educate the public about the court system. It can sometimes be difficult to tell when one has crossed the line.
For example, the U.S. Court of Appeals in Boston (1st Cir.) ruled on Feb. 5 that a judge who spoke to the media to clarify matters of procedure should have recused herself from the case because her comments could have been interpreted to indicate that she was biased.
The lawsuit at issue was filed by a group of plaintiffs who alleged that racial preferences were used in Boston’s elementary school assignment procedures, in violation of state and federal law. The plaintiffs sought class-action status. However, federal Judge Nancy Gertner found that some of the plaintiffs might not have standing for injunctive relief because they did not apply for a new school assignment. Gertner recommended that further discovery be done on the issue of standing before a class was certified.
Despite the judge’s recommendation, the plaintiffs filed a motion for class status. The plaintiffs further criticized the judge in a Boston Herald article because the judge failed to immediately certify the class in the pending case, even though she had certified a class in a prior case, involving female prisoners who had been strip-searched, that the plaintiffs thought was similar.
Gertner responded to the Herald article by letter. She clarified that she had not denied class certification but had merely postponed a ruling until further discovery occurred.
The Herald wrote a follow-up article and interviewed Gertner. The paper quoted her as saying “In the [prior] case, there was no issue as to whether [the plaintiffs] were injured. It was absolutely clear that every woman had a claim. This is a more complex case.”
Based on that comment, the plaintiffs moved for Gertner to recuse herself, arguing that the comment called her impartiality into question. Gertner refused to recuse herself, stating that her comment was merely an explanation of court procedure and not a comment on the merits of the case. But the court of appeals found that Gertner should have recused herself because the statement could be interpreted to mean that the judge thought that the case had less merit than the prior case, and a reader might interpret that belief as bias.
However, the appellate court stated that Gertner had done nothing unethical by speaking to the paper. The court also emphasized that it did not mean to imply any actual bias by Gertner, only that there might be a perception of bias. (In re: Boston’s Children First)
The Gertner case is disturbing because the judge was trying to explain court procedure, which is encouraged, rather than commenting on the merits of the case, which is discouraged. And it must have a chilling effect on judicial speech for a judge to be removed from a case for making the seemingly innocuous statement that one case was more “complex” than another. Nevertheless, it seems that in most cases where a judge speaks to the press, the appellate court leans in favor of recusal.
In 1995, for example, Judge David Edelstein was forced to recuse himself from the antitrust trial of IBM because of statements he made to The Wall Street Journal and The New York Times. Although the U.S. Court of Appeals in New York (2d Cir.) did not specify exactly what the judge said that would create a perception of bias, the court felt that the judge’s interviews where he described the activities of IBM and the attorney general might lead to a perception of bias. (In re International Business Machines Corp.)
Similarly, a judge was forced to recuse himself from a 1993 trial of abortion protesters because of his appearance on “Nightline.” The U.S. Court of Appeals in Denver (10th Cir.) ruled that Judge Patrick Kelly created an appearance of possible bias when he spoke on television to say that he would enforce an order limiting anti-abortion protests. The court believed that his statements created an “air of partiality.” (U.S. v. Cooley)
Interestingly, if the judge’s speech is not directly to the media, the courts often find that the judge’s speech was not sufficient to require recusal.
The U.S. Supreme Court ruled in 1994 that it did not create an impression of bias for a judge to severely admonish a defendant. The court stated, “Not all unfavorable disposition towards an individual (or his case) is properly described as bias or prejudice.”
The court found, “the judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of proceedings.” (Liteky v. U.S.)
This view is reinforced by the D.C. Circuit’s statement that Judge Jackson could have made his statements criticizing Microsoft from the bench. It seems that if a judge’s comments are made in open court, then they are given greater deference. (U.S. v. Microsoft)
The courts have not taken any direct action against the media in any of the cases involving judicial speech. Nevertheless, the Microsoft ruling will undoubtedly make it more difficult for the media to get comments from judges, imposing an indirect “punishment” for the media trying to get the whole story.