These are notes from a talk by the Honorable Herbert B. Dixon, Jr. trial judge of the Washington DC Superior Court, followed by a panel discussion at the American Bar Association 2011 conference in Toronto last Saturday. Panelists included Judge Dixon; the Honorable Bernice B. Donald, Western District of Tennessee; Cynthia Gray, Esq. of Chicago, Illinois who counsels judges; Marla N. Greenstein of Anchorage, Alaska, who is involved in judicial conduct regulation; and G. Michael Witte who is Indiana Disciplinary Commission Executive Secretary and a former judge. The session was moderated by the Honorable Annette Scieszinski, Albia, Iowa and sponsored by the Judicial Division of the ABA. Note: these are my selected notes from this session; any inaccuracies or omissions are my own. I welcome your comments and follow-up thoughts!
Keynote by Judge Herbert B. Dixon, Jr.
Technology helps people remember things they would not usually remember. Technology helps in case presentations.
What is Social Media?
It is less about technology and more about the way it allows people to collaborate and share. Social media is “an umbrella term – integration of technology and social interaction between people.” Is it just a fad? He showed us the videos “Social Media Revolution” 2010 and 2011 versions (2011 is below):
There are ethical perils for attorneys who use social networking:
- judge said attorney asked for continuance because her father died, but Facebook showed she was partying all weekend
- lawyer was angry at a judge; he referred to her as an “evil, unfair witch” on his blog. Florida Bar reprimanded and fined him (was a personal attack, not a first amendment issue).
Courts wrestle with social networks:
- employee was on the witness stand and the boss was texting him answers; someone alerted the judge
- juror misconduct in Florida: jurors admitted to doing research on the Internet during drug trial. Turns out 8 more jurors were doing the same thing; judge had to declare a mistrial. The news headlines read: “Mistrial by Google.”
- in another case, a juror expelled after posting verdict on Facebook. The juror was replaced and trial went forward
Judge Dixon talked about a new type of jury instruction:
- given during voir dire
- allow them to use computers before voir dire, but warn them against looking up information. He gives them three reasons, and repeats throughout the process; seems to work: (1) to ensure fairness; (2) if they violate instructions, they will jeopardize the results of the trial; and (3) if they find out someone violates instructions, it could get that juror in trouble.
Googling potential jurors by the lawyers during voir dire?
- he did not allow it in his courtroom; however, there was a court decision that allowed it
- as long as it does not interfere with the voir dire, it may be permitted
Example of juror’s Facebook misconduct:
- juror in UK
- 6 million pound drug case
- contacted acquitted codefendant
- codefendant’s lawyer reported it to the judge
Example of juror’s text messaging misconduct:
- rape trial in Queens, NY
- juror sent text messages to numerous people
- the juror took on the role of reporter: “from a 12 x 20 jury room with excellent wifi, Juror #5 reporting live”
- local prosecutor was a recipient of the text messages
Should a judge be on Facebook? CCPIO’s New Media Report released August 26, 2010 says 40% of judges have Facebook accounts; most of those are elected judges.
Georgia judge steps down following questions about Facebook relationship with defendant.
A North Carolina judge issued public reprimand:
- judge and attorney “friended” each other on Facebook
- judge posted on attorney’s FB wall
- judge was issued public reprimand.
What should judges do in terms of Facebook account? Answers are all over the place.
- law enforcement officers and employees – okay for judges to friend them as long as they do not discuss details of trials
- Florida – Judges cannot “friend” lawyers on Facebook; inappropriate
- New York – yes, a judge can friend a lawyer, BUT the judge must avoid appearance of impropriety
- Kentucky – agrees with New York
- judge from Staten Island was moved to Manhattan; judge was using Facebook and Twitter accounts from the bench
- Ohio – an anonymous webmail name “webmiss” to write to newspaper when there were scathing reports about a judge. It was traced to computer in judge’s office; might have been her daughter.
- Ohio – agree with Kentucky and New York, with same cautions.
In Arizona Free Enterprise Club v. Bennett and McCormish v. Bennett, United States Supreme Court, Oral argument March 28, 2011, Chief Justice John Roberts stated: “I checked the Citizens’ Clean Elections Commission website this morning…”
Dixon’s Judicial Commandments re: Social Media
- judge must maintain decorum in social networks (Rule 1.2 Promoting Confidence of the Judiciary)
- judge should not make comments on a social networking site about any matters pending before the judge
- judge should not view a party’s or witnesses’ pages on a social networking site to obtain information before the judge
- judge should disqualify himself or herself when they judges’ social network relationships makes it inappropriate (Rule 2.11 Disqualification)
- a judge should be aware of the contents of his or her social networking page
Judge Bernice B. Donald, Western District of Tennessee
Judge Herbert B. Dixon, Jr., Washington DC Superior Court
Cynthia Gray, Esq. , Chicago, Illinois
Marla N. Greenstein,Anchorage, Alaska
Michael Witte, Lawrenceberg, Indiana
Survey of Relevant Rules of Conduct (Model Code of Judicial Conduct) –
Moderator Judge Annette Scieszinski, Albia, Iowa presented a number of scenarios and questions for the esteemed panel. Note the audience was made up primarily of judges, both elected and appointed, at various court levels.
Q 1: Insidious Nature of Lingo – A new judge on your bench is on the cutting edge of the new social media – what about the jargon?
Greenstein: off the bench there may be emails between judges; with new text message language, there is a casualness that is inappropriate in more formal documents.
Judge Scieszinski: Rule 1.2 Judges must promote public confidence: independence, integrity and impartiality – must avoid impropriety and the appearance of impropriety.
Q 2: A jury arrived at a controversial ruling last week; the anonymous bloggers are going nuts. To make sure it’s a balanced discussion, the judge joins the online debate anonymously.
Witte: “Put a zip on it.” A judge is joining in a discussion that he is going to have to make a ruling on; it is still a public discussion.
Judge Donald: Even if the judge is not influenced, cannot ethically discuss their rulings. Things done under the banner of anonymity will come back to you. When something gets into cyberspace, it is there forever.
Greenstein: It is hard to read the comments and not participate. You are better not to read. Set up your own parameters and do not tempt yourself.
Judge Dixon: When you participate anonymously, it looks like you knew it was wrong to do and looks just worse.
Question from audience: what would younger people think about the reasonableness of this?
Audience comment: it is not as anonymous as you think; there will always be an IP address footprint.
Judge Scieszinski: You can’t just go online and read anonymously; and you cannot eliminate something you have read from your awareness.
Question from audience: Is it improper for judges to follow news coverage of trials they are hearing?
Greenstein: It is not improper, but it is tempting to respond. It should not be the judge who does the monitoring; someone else should take this burden away from the judge.
Judge Scieszinski: Don’t think your staff can monitor and feed to the judge; the staff are under the same rules and ethics as the judge.
Rule 2.8 (C)
Rule 2.9 (A)
Q 3: Proactivist Judging – Now assigned to the drug court, you find it liberating to interact with social workers, probation officers, treatment providers and others on the team. A dedicated Facebook account would be a good, informal and collaborative tool, and the clients would enjoy it. Right?
Gray: It is not wrong for a judge to find a way to communicate and collaborate; she likes to think there is a better way for the court to do it than on Facebook; would be better on the court’s own servers with privacy and specific rules around it. Someone should be monitoring it consistently to ensure the rules are followed. In a court setting, judges need to take care that the discussion is not too casual.
Judge Dixon: in a lot of places the specialized courts are “opt in” courts – have to request to go to those courts; there are a list of rules that have to be agreed to.
Rules 2.9 Comment 4 – speaks directly to the problem-solving courts
Greenstein: problem-solving courts – it would be great to have some use of technology to coordinate between all the players; technology gives a way to communicate in a way where everyone feels comfortable, feels they get the information at the same time. They should not shy away from use of technology. She hopes judges will go away today with ideas on how to use technology.
Question from audience (a judge): He keeps getting invitations for Facebook and LinkedIn; do the same issues apply to the more professional-oriented networks? Are they safer?
Judge Dixon: No. The dangers are still the same, even if just supposedly more professional. Lawyers will still ask you to connect to them.
Greenstein: LinkedIn is like belonging to a Rotary Club, except you can’t see everyone in the room. Be a member, but be aware you can’t see everyone.
Judge Donald: She is not sure about other groups being in these networks and who this links her to; it is not right for her. She deletes invitations to connect, even with family members. Clerks should not be on Twitter talking about court cases or judges; creates problems from ethical and safety standpoint. “There may be a day when I link to something, but I’m just not there yet.”
Witte: When you are on LInkedIn, it asks what your specialty is; take note if you are in a state that says you cannot say you are a specialist in a certain area.
Question for Greenstein: Facebook or some similar account: is it useful for judicial outreach?
Greenstein: In a last minute election campaign one judge was able to use Facebook and another website to communicate with brother electorate in a way that was less expensive than it would have – has put together some information on this. Would be great for judges to have a public website that has information; could be controlled more. This is just another media that you need to be trained to use.
Judge Dixon: Court as an institution rather than judges as individuals could use social media. For example, in DC they are announcing a Safe Surrender Program – individuals voluntarily turn themselves in if they have outstanding bench warrants – was announced this time using Twitter, Facebook and other forms of social media.
Question from audience (family court judge): What about the Family Wizard program (see http://www.ourfamilywizard.com/ofw/ )? – court schedules what is supposed to happen with the family; court can go in to see if everything is taking place.
Gray: Sounds like it is not ex parte and everyone has agreed to it.
Judge Donald: Doesn’t see it as issuing contact, it is just exchanging schedules. Doesn’t see it as inappropriate.
Greenstein: What would be inappropriate is if you used online sources to do your own research rather than doing appropriate hearings.
Judge Dixon: Sounds like supervised visitations in the digital age.
Audience comment: Worried that the judge becomes the supervisor. If you see something inappropriate, do you bring them into court?
Family court judge: fortunately she has not had these problems. It has reduced the swearing. She does use this information for contempt hearings, if someone says he picked up a child and the systems shows he didn’t.
Q 4: Text messaging jurors about court status eases the traffic jam in accessing the recorded-message system. Now it’s time to expand the message network to include outreach and court promotion. Isn’t this the way the public wants us to communicate?
Judge Donald: They were one of the pilot projects launching cameras in the courtroom. “We ought to use the medium that is most effective with the best information.” Texting about jury service is fine; however, they have to ensure there is adequate input into the development of these systems from the court and clerks. Right now they have a call-in service and text message that notifies everyone if there is a problem with the building. Her court is very innovative. She supports the use of this kind of information to users.
Rule 1.2 Comment 6: it has not always been clear whether a judge may initiate and participate in community outreach activities.
Q 5: A lawyer tells politically incorrect jokes while waiting in the hall for order hour. The judge just avoids the hall. Should something be done?
Judge Dixon: He has seen this in the courtroom. Call them to the bench and let them know about the inappropriateness.
Judge Scieszinski: Is it different if Larry tweets this to his followers?
Judge Dixon: If there is an inappropriate comment of the lawyer being made publicly, does the judge have the authority to say something? He is not aware of anything that has discussed the issue.
Judge Donald: As a judge you have an obligation to prevent this in a courtroom; but how would you know otherwise unless you were following them?
Rule 2.3 (B)
Judge Dixon: You do not have control over public ramps that lawyers may be a part of. A judge does not have the authority; the judge will just have to withdraw him or herself.
Greenstein: It is usually brought to the judge’s attention by a staff member, and there is usually harassment involved. A judge has to be aware of the obligations.
Q 6: Inadvertent exposure – When the judge arrives at the courthouse, the clerk says, “Our 9:30 Dad has been beating on his girlfriend again; it’s all over Facebook.”
Greenstein: This has introduced ex parte communication to the judge. A similar situation happened in Alaska. Hopefully court staff are trained not to communicate this kind of thing with the judge.
Judge Scieszinski: How is this different from seeing it on the morning news?
Greenstein: Yes, it is different. News tends to be more general; personal communication tends to be more specific. Should the judge read something that will affect the decision, the judge should disclose this.
Witte: With the news, you are not targeted to be the recipient. With the personal message, you are the target.
Q 7: Judge about town – the judge’s Facebook page is very professional. She’s well-connected, knows everybody, and is good at the politics of being a public official. The judge clicks “like” on all the business sites that cross the screen – the restaurants, the spa, the book store, the coffee shop, etc. What’s wrong with supporting your community?
Judge Donald: It infers you are using the prestige of your judicial offers to promote these businesses. She did like the idea, however, of being “about town”.
Judge Dixon: There is nothing wrong with telling a chef you liked a meal; however, once you click “like” in a social network, that puts you in a position that they can use what you said to tell others that a judge likes them.
Greenstein: Anything you do in social media is public.
Judge Scieszinski: What about the Casey Anthony verdict: what about clicking “like” on that?
Witte: If you click on the story you may be indicating these kinds of stories; but you may be inadvertently indicating you like the outcome.
Q 7: The banner at the bottom of the TV screen says “Did the defendent prove its case?” as closing arguments near in a high-profile criminal trial. Emailed votes, and comments, are allowed and you want to weight in because, after all, you work these cases regularly…
Greenstein: Judges cannot comment on others’ matters. It depends on your code.
Gray: The Model code says you cannot comment because it might affect the fairness of the case.
Judge Dixon: When you get into making public comments, you are asking for trouble. With the Internet you have more opportunities to make yourself look like a fool than you would when you were just standing in a room.
Q 8: Blogging – a great way to communicate with a very open or closed group. Right? The criminal law changes so fast, and you’ve been asked to blog about issues that have previously come before you and how they were resolved. You do this as a service to the local bar. Lately, police officers have been posting good questions on your blog, noting how helpful your advice is. (Indeed, there is a downturn in suppression issues coming into your courtroom.)
Gray: Judges should not be answering questions of police officers. However, this may be a good way to communicate. She would be concerned if this was a closed group. Be careful in giving advice to the bar; pro se litigants can be suspicious that other sides know something they don’t know. While blogging is a great idea and there are good ways to educate the bar, you must ensure this is public education and not just bar education.
Question from audience: What about blogs about non-legal topics?
Gray: that is fine; don’t indicate you are a judge on the blog and certainly don’t put a photo of you in your robes on it. Topics like beermaking and food is fine.
Question from the audience: How far do you take monitoring of the Internet?
Greenstein: In some states there is a private company that provides telephone hearings and they use photos of the judges on their website; judges sometimes do not have control over this. Judges need to make the request that their photos not be used by private enterprise. She’s seen a problem with a law firm still using the judge’s photo in advertising after he left the firm.
Audience comment: She is on Facebook specifically to see when her photo has been posted (she removes the tags).