Judicial Misconduct

The Robe Magnifies the Conduct

“True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others.”

– Jonathan Sacks.

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In April 2012, Alabama Judge Les Hayes sentenced 28-year-old single mother Marquita Johnson to more than 1.5 years in jail for unpaid traffic tickets—a longer sentence than that for negligent homicide. Her kids were put in foster care, where they suffered sexual and physical abuse. Four years later, Alabama’s Judicial Inquiry Commission found Hayes had violated more than ten canons of the Code of Judicial Conduct, putting hundreds of Montgomery citizens behind bars for unpaid fines.¹

Under federal law, state judges must consider a defendant’s ability to pay fines and whether they willfully opted not to pay.² In Johnson’s case, Hayes attached a $155 fine to each unpaid ticket, adding up to over $12,000 in fines. Hayes gave Johnson 496 days in jail, $25 for each day counting towards her unpaid fines. The Judicial Inquiry Commission found that Hayes did not inquire about Johnson’s financial ability to pay or whether her actions were willful.³

The Commission started investigating Hayes in 2015, two years after plaintiffs’ attorneys filed a complaint against him. Hayes remained on the bench throughout the year-and-a-half investigation. And in the end, Hayes got an 11-month suspension. He returned to the bench in 2018. When his term as judge was to expire, the Montgomery City Council decided to grant Hayes another four years, his fifth consecutive term. Hayes continued to serve as a Montgomery Municipal Court judge until his retirement in 2020.

Foundation of Public Trust

Though state, county, and municipal court judges control the futures and freedoms of millions of U.S. citizens in the criminal justice system, they work under very little oversight. Judges control who will get prison time, who will lose their homes, and who the kids will live with in divorce. Their decisions impact defendants’ lives, the lives of the defendant’s loved ones, and how the defendant’s community and society at large view justice.

Public trust is the very foundation of our government’s judiciary branch. Our citizens trust that judges make rulings based on lawful and objective reasoning. The system and the law fail when a judge acts unethically and is not held accountable. Between 2008 and 2019, a Reuters analysis of state investigative documents shows at least 5,206 individuals were directly harmed by judicial misconduct.⁴ The actual number is likely much higher as thousands of cases go unreported. In many cases, defendants are unaware of any wrongdoing by the judge. Many officials who are aware of the misconduct do not say a word for fear of retaliation.

Of the report's 5,206 cases of judicial misconduct, 90% of judges remained on the bench. These judges violated the judicial code through racial discrimination, withholding counsel, lying, and abusing the system, then returned to work with few repercussions, if any. The Reuters investigative analysis found 3,613 cases of state judges who were disciplined for misconduct but whose identities and offenses were never exposed to the public. The report describes only 1,509 cases involving a judge being disciplined, resigning, or retiring after misconduct allegations.

Misconduct Inside the Courtroom

The term “judicial misconduct” refers to any action by a judge that discredits the judiciary, diminishes public confidence, or harms the administration of justice. A judge must adhere to the Code of Judicial Conduct both in and out of the courtroom. In the courtroom, judges must adhere to certain practices to adequately perform their role. Examples of conduct that may qualify as judicial misconduct in the courtroom include:

• Acting in violation of litigants’ rights
• Bias
• Discrimination (based on race, color, age, disability, gender, gender identity, sexual orientation, pregnancy, religion, or nationality).
• Engaging in improper ex parte communication
• Failing to execute judicial duties in a timely manner
• Failing to recuse with conflicts of interest
• Gross negligence
• Ignoring the law or legal precedent
• Improper demeanor (acting in an undignified, impatient, or disrespectful manner)
• Incorrectly citing or applying law or precedent
• Intoxication on the bench
• Lying under oath

Judicial discrimination is disturbingly common in the courtroom, particularly in sentencing. Even the U.S. Sentencing Commission acknowledges that black male offenders receive longer sentences on average than white male offenders, and women receive shorter sentences than men.⁵ Data analyzed from 380,000 federal district court criminal cases between 2006 and 2019 shows that white defendants receive an average of 13% shorter sentences than black defendants and 19% shorter sentences than Hispanic defendants. Individual judges who exceed these average rates show even greater disparity, delivering 39% longer sentences to black defendants and 49% longer sentences to Hispanic defendants than white defendants.⁶

Another common type of judicial misconduct is failure to recuse when a judicial conflict of interest exists. When a conflict of interest exists, a person can request a judge “recuse” (disqualify) themselves from the case so that a new judge can step in.⁷ The party can appeal the ruling without recusal in cases involving a judicial conflict of interest. If a judge knows of a conflict of interest, they must recuse themselves. For example, a conflict of interest may exist when a judge is related to one of the lawyers in a case, has personal information regarding a case, has a personal connection to someone in the case, or has a financial interest in a case outcome.

To illustrate, Colorado Judge Lewis Babcock and his family held $15,001-$50,000 of Comcast Corp. stock while hearing a case involving a Comcast subsidiary (and ruling in their favor).⁸ New York Judge Edgardo Ramos owned $15,001-$50,000 of Exxon Mobil Corp. stock while handling a case between Exxon and TIG Insurance Co. Ramos upheld an arbitration panel’s decision that TIG pay Exxon $25 million. He tacked on another $8 million in interest.⁹

A recent study by the Wall Street Journal found that 685 federal court cases between 2010 and 2020 were heard by 131 judges that owned stock in a company involved in the case¹⁰-- an obvious conflict of interest. Around 66% of the cases were decided in favor of the judge’s financial interest. The judges had various excuses to defend their failure to recuse themselves: they weren’t acting as a ruling judge in the case, the court clerk messed up, or the conflict screening software failed. Some said their stock ownership caused losses, not gains. Others said since a money manager controlled their stocks, they were exempt from the recusal requirement.¹¹

In a clear example of the protection of judges against misconduct allegations, the Administrative Office of the U.S. Courts responded to the study by stating, “The number of cases identified represents less than three one-hundredths of 1% of the 2.5 million civil cases filed over the period and reflects inadvertent mistakes, flaws in software and simple human error. The judiciary takes very seriously its obligations to preclude any financial conflicts of interest. We have in place a number of safeguards and are looking for ways to improve.”¹²

Misconduct Outside the Courtroom

Most working people can act however they like when they are off the clock (at least within the law) without threatening their job status. But because public faith in judges is critical to the criminal justice system, a judge can be found guilty of misconduct for behavior performed in their personal life, behavior that has little direct impact on an individual court case. While supervision of judicial conduct does not seek to control a judge’s daily life, judges who act in a way that compromises their judicial integrity at any time can be found guilty of judicial misconduct.

Examples of judicial misconduct that occur outside the courtroom may include:

• Accepting gifts, bribes, or favors in relation to the judicial office
• Corruption
• Criminal law violations
• Failing to acknowledge, report, or discipline prosecutorial misconduct
• Harassment or retaliation against individuals for reporting judicial misconduct
• Improper partisan statements or political activity
• Participation in discriminatory organizations
• Refusal to cooperate in judicial misconduct investigations
• Sexual acts with coworkers, litigants
• Soliciting funds
• Using the judicial position as leverage in private interests
• Violating financial disclosure requirements
• Violating standards on outside income

For example, in September 2011, the Georgia Supreme Court removed Catoosa County, Georgia Magistrate Judge Anthony Peters from the bench. It permanently barred him from holding a position in any Georgia judicial office. Not for imposing exaggerated sentences or misinterpreting the law. Instead, Peters was fired for smoking weed once a week, spilling sensitive information on a talk show, waving a firearm around the courthouse, and busting a guy’s door down who had offended his sister-in-law—among other charges.

The Judicial Qualifications Commission complaint said Peters violated multiple canons of the Code of Judicial Conduct.¹³ Peters admitted to most of the allegations yet sought paid administrative leave as discipline. The court ordered permanent removal, concluding that Peters had “consistently refused to take responsibility for his actions.”¹⁴ In 2012, Peters followed up with a lawsuit alleging a conspiracy between the county sheriff and Chief Magistrate Judge Caldwell to have him removed from the bench. The case was dismissed on a motion for failure to state a claim.¹⁵

While the Code of Judicial Conduct does not outline every personal act that could constitute misconduct, most state codes include language requesting that judges act in a way that safeguards the integrity of the judiciary branch. For example, section 100.1 of the New York Code of Judicial Conduct states, “A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.”¹⁶

Excessive Forgiveness

Alabama Circuit Judge Marvin Wiggins has been charged with misconduct four times. In 2009, he received a 90-day suspension for failure to recuse himself from an investigation involving his family members.¹⁷ In 2019, he was reprimanded for ex parte communication with a parent in a custody case.¹⁸ The Committee found a “pattern and practice” of ex parte communications. In a later investigation, the Committee claimed Wiggins’ history suggests a “pattern of carelessness or indifferent disregard or lack of respect for the high standards imposed on the judiciary.”¹⁹ Wiggins is still on the bench.

Reprimands are to serve as warnings of harsher discipline to come should the offender repeat the offense. One or two acts of demonstrated misconduct should be subject to reprimand. But judges are committing repeated acts of misconduct and continuing to serve. Without discipline, judicial misconduct damages public trust in the U.S. justice system and gives judges the message that they can behave however they like.

Several factors play a role in this “immunity” from any permanent bar from service. For one, some states make it difficult to file complaints against judges. Alabama complaints must be in writing and notarized. One false statement could present liability for perjury. Anonymous or unnotarized complaints are never investigated, enhancing the fear of retaliation against anybody who brings up even a minor complaint against a judge. In addition, many Judicial Inquiry Commissions are made up of judges and attorneys whose investigations and discussions are never released to the public. The identities of judges remain confidential.

The criminal justice system investigates parties for criminal acts without the party being aware of the investigation, including secret surveillance and behind-the-scenes documents and subpoenas that the parties will never see. Yet in Alabama, any judge who has a complaint filed against them must be given access to its contents, including transcripts of witness statements against them.

Pressures to Act with Bias

Bias and failure to report, recognize, or discipline misconduct in a court case are violations of the Code of Judicial Conduct. But judges are notorious for turning a blind eye to police misconduct in the courtroom. Very rarely will a judge question the integrity of police testimony. As former U.S. Court of Appeals for the Ninth Circuit Judge Alex Kozinski once stated, “It is an open secret long shared by prosecutors, defense lawyers, and judges that perjury is widespread among law enforcement officers.”²⁰ Still, many judges choose to look the other way.

Why are judges so quick to accept police misconduct in the courtroom, even relying on false police testimony to convict and sentence innocent parties? Perhaps the most innocent excuse is that a judge—like most people—is more willing to accept the testimony of a public servant than an accused criminal. But judges are also under pressure to overlook police misconduct. In 1996, Federal District Judge Harold Baer Jr. dismissed a drug case for lack of probable cause. He was nearly impeached for the decision. Pressured by Congress, he reversed the ruling.²¹

In most states, judges are elected to their positions. Anti-crime citizens and police unions aren’t rushing to elect judges who punish police. In the end, these factors only amplify the problem of police misconduct. Pressures make it difficult to adhere to the practice of making judicial rulings free from bias.

Lack of Transparency

Without public exposure to complaints and disciplinary measures against judges, there is little incentive to behave within the Code of Judicial Conduct. Documentation for judges is difficult to come by. For example, judges’ financial disclosures are not readily available to the public. They can take years to uncover, making conflict of interest concerns challenging to verify. In response to a 2021 Wall Street Journal investigation into judicial conflict of interest and other misconduct, the Free Law Project announced its release of an online searchable database of federal judicial financial records.²² In 2022, the Administrative Office of the U.S. Courts launched a free public database of federal judges’ financial disclosure reports.²³ Still, state and local judges’ records are difficult to come by.

For our justice system to function, the American public must believe that judges act ethically and without bias. There is no question that a large majority of judges operate with integrity and fairness in performing their duties. Indeed, judges are human. They will make mistakes. While minor reprimands and suspensions are fitting in most judicial misconduct cases, they are inappropriate for repeated and substantial misconduct.

In some cases, commissions identify, investigate, and address the problem accordingly. However, many states organize commissions and grievance procedures in a way that makes it nearly impossible to report judicial misconduct and impose an appropriate punishment. By design, these systems function to safeguard judges and block public knowledge of wrongdoing. This approach results in judges who have no fear of repercussions for misconduct and citizens whose freedom and rights are threatened by their own justice system.

When people are imprisoned without respect for their right to due process and a fair trial, judicial misconduct becomes dangerous. Judicial misconduct becomes dangerous when people are imprisoned without respect for their right to due process and a fair trial. Incentives to report judicial misconduct and protections from retaliation for those who report must be in place. Pressures to alter lawful judgments for political or financial gain must be minimized with incentives to act ethically and repercussions for those who attempt to interfere and sway rulings.

Accountability is critical. Without it, judges have no fear of violating judicial conduct standards. Transparency is a part of accountability. As Theodore Roosevelt puts it, "No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right, not asked as a favor."²⁴

End of Excerpt

Footnotes:

1. In The Alabama Court Of The In The Matter Of: Armstead Lester Hayes III Municipal Judge, Municipal Court, City of Montgomery, Alabama. Complaint Court of the Judiciary Case No. 49. November 17, 2016.
2. Bearden v. Georgia, 461 U.S. 660 (1983).
3. Berens M, Shiffman J. (2020, June 30). Thousands of U.S. judges who broke laws or oaths remained on the bench. Reuters.
4. Berens M, Shiffman J. (2020, June 30). Thousands of U.S. judges who broke laws or oaths remained on the bench. Reuters.
5. Demographic Differences in Sentencing. (2017, November 14). United States Sentencing Commission.
6. Smith CM, Goldrosen N, Ciocanel M, et al. (2021, July 29). Racial Disparities in Criminal Sentencing Vary Considerably across Federal Judges. Institute for the Quantitative Study of Inclusion, Diversity, and Equity, Inc.
7. 28 U.S. Code § 455
8. Grimaldi JV, Jones C, Palazzolo J. (2021, September 28). 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest. Wall Street Journal.
9. Wester J. (2022, May 10). Lawyers urge 2nd circuit to vacate decision by judge who owned Exxon stock during litigation. New York Law Journal.
10. Weiss DC. (2021, September 29). 131 federal judges oversaw cases involving companies in which they or their families owned stock. ABA Journal.
11. Grimaldi JV, Jones C, Palazzolo J. (2021, September 28). 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest. Wall Street Journal.
12. Grimaldi JV, Jones C, Palazzolo J. (2021, September 28). 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest. Wall Street Journal.
13. Inquiry Concerning Judge Anthony Peters. 289 Ga. 633, 715 S.E.2d 56 (Ga 2011).
14. Georgia Judge Removed from Bench for Misconduct, Files Lawsuit Claiming Conspiracy. (2013, January 15). Prison Legal News. p.38.
15. Peters v. Caldwell, U.S.D.C. (ND Ga.). No. 4:12-cv-00149-HLM.
16. 22 NY Comp Codes Rules and Regs § 100.1.
17. Alabama Court of The Judiciary, Case No. 37. In The Matter Of: Marvin W. Wiggins, Circuit Judge Fourth Judicial Circuit of Alabama (2009, July 8).
18. Alabama Court of The Judiciary, Case No. 51. In The Matter Of: Marvin W. Wiggins, Circuit Judge Fourth Judicial Circuit of Alabama (2019, November 18).
19. Berens M, Shiffman J. (2020, June 30). Thousands of U.S. judges who broke laws or oaths remained on the bench. Reuters.
20. Taylor S. (1995, October). For the Record. American Lawyer. at 72.
21. Van Natta D. (1996, April 2). Under Pressure, Federal Judge Reverses Decision in Drug Case. New York Times.
22. Palin W. (2021, September 28). Free Law Project Creates the First Online Database of Federal Judicial Financial Disclosures. Free Law Project.
23. New Database Eases Release of Judges’ Finance Reports. (2022, November 7). U.S. Courts.gov.
24. Roosevelt T. Third Annual Message to Congress. December 7, 1903.