You have sought the advice of this committee to determine whether, consistent with the Code of Judicial Conduct, you may be interviewed by a journalist who is writing a book about a certain high profile crime.
Background. You were the trial judge in the criminal case that arose from this crime. You also presided over pretrial matters in the case. The case received considerable media attention and generated considerable public discussion. The case resulted in convictions that were affirmed on appeal. You state that you do not know whether any postappeal motions for a new trial or other relief have been filed. (The family of the victim did commence a civil action arising out of the case. You are not aware of the status of that action.) You correctly note that motions for new trial in criminal cases can be filed "at any time" under Mass. R. Crim. P. 30 (b), and therefore could conceivably be filed in the future in this matter, and that other types of postappeal motions could conceivably be filed as well.
The journalist has inquired whether you would be willing to be interviewed for the book he is writing about the crime. You spoke with the journalist to ascertain what types of subjects he would like to ask about. He indicated that he would like to ask about your "impressions" from your perspective as the trial judge; your thoughts about the case "in the context of those times"; how you "approached" the case; any "extra concerns" you had in managing this high profile case such as security concerns, media concerns, or special concerns for the families involved, and the steps you took to address these concerns; any "color or context" you might be able to provide; and anything else that "stood out" for you about the case. While these are the general areas he mentioned to you, you do not know whether they are all the possible areas that might arise in an interview.
You have asked three specific questions:
- Are you permitted under the Code to be interviewed for this book?
- If so, what limitations, if any, does the Code place on your participation?
- What additional guidance, if any can the committee give on the general types of topics you can and cannot discuss with the author, or on other ethical considerations of which you should be aware, so that you can structure your involvement and answer questions accordingly?
Analysis. Engaging in out of court discussion of a legal matter over which you had significant authority implicates Canon 3 of the Code of Judicial Conduct, which states that "[a] judge shall perform the duties of judicial office impartially and diligently." In particular, Section 3 B (11) provides that:
"A judge shall not disclose or use, for any purpose unrelated to judicial duties, information acquired in a judicial capacity that by law is not available to the public. When a judge, in a judicial capacity, acquires information, including material contained in the public record that is not yet generally known, the judge must not use the information in financial dealings for private gain. Notwithstanding the provisions of Section 3 B (9), a judge shall not disclose or use, for any purpose unrelated to judicial duties, information that, although part of the public record, is not yet generally known, if such information would be expected unnecessarily to embarrass or otherwise harm any person participating or mentioned in court proceedings."
The terminology section of the Code defines "law" as meaning "court rules as well as statutes, constitutional provisions, and decisional law." To the committee's knowledge, there is no court rule, statute, constitutional provision or decisional law that categorically prohibits discussion with a journalist.
Section 3 B (9) directly addresses the circumstances in which a judge may engage in public comment:
"Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require similar abstention on the part of court personnel.
"(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.
"(b) This Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.
"(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity."
The commentary to Section 3 B (9) provides the following additional detail:
"A judge may, consistent with this section, explain what may be learned from the public record in a case, including pleadings, documentary evidence, and the tape recording or stenographic record of proceedings held in open court. The judge may not discuss the rationale for a decision, however, unless the judge is repeating what was already made part of the public record. Speaking to a journalist is public comment even where it is agreed that the statements are 'off the record.'"
The provisions of Section 3 B (9) by their terms extend to "pending or impending" proceedings. The commentary to Section 3 B (9) states that a case is "impending" for purposes of the section "if it seems probable that a case will be filed." The matter in which you served as trial judge was not an abstract matter, rather an actual case based on concrete facts that were fully tried to judicial resolution. See generally CJE Opinion 2005-5 (discussing "impending" in context of judge's question about moderating discussion of a potentially controversial subject on local public access radio station). While there is indeed a possibility of a motion for a new trial being filed at any time, such a broad interpretation of "pending" or "impending" would mean that a judge could never discuss a matter while the defendant remains incarcerated or is under any legal disability that could be lifted through a motion for a new trial. It is not clear that Section 3 B (9) was intended to have such a broad effect.
Even if Section 3 B (9) were construed to mean that the matter over which you presided is no longer "pending" or "impending," however, both Section 3 B (9) and Section 3 B (11) must also be read in light of Canon 2, which commands that "[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities," and, specifically, under Section 2 A, that "[a] judge shall . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 2 concerns are implicated regardless whether the judicial discussion involves pending, impending, or fully resolved matters. See CJE Opinion 98-15 (advising that, "[e]ven if a matter is not pending or impending, judges must be careful in their comments to comply with the principle enunciated in" Canon 2). Canon 2 reinforces a central legal value that the public record in a case should reflect, to the extent possible, the facts and issues that shape the resolution of that matter. While the examples accompanying Section 3 B (11) focus on preventing self-dealing, or embarrassing or otherwise harming participants in legal proceedings by disclosing nonpublic information, the Code language rests on a more fundamental value: that we should strive to have judges resolve issues based on the public record and not a "real story" hidden from public view.
This does not suggest that judges may not participate in the public debate about the role of judges in our society and the values that may shape judicial discretion and perception. A different line may indeed be drawn after measured discussion about the role of the judge. But until the lines are redrawn, the Code envisions that judges will speak about adjudicative matters through their opinions. Cf. Nancy Gertner, To Speak or Not To Speak: Musings on Judicial Silence, 32 Hofstra L. Rev. 1147 (2004). In addition, public discussion of adjudicative aspects of a high-profile case in which you have participated carries a higher risk that your comments, which will be framed and characterized by the author interviewing you, may result in confusion or misunderstanding of the judicial office. See CJE Opinion 98-15 (quoting U.S. Committee on Codes of Conduct, Advisory Opinion 55).
With these principles in mind, the committee observes that many of the proposed subjects for the interview appear to seek your personal perceptions, thoughts, and interpretation of the events occurring during trial. These topics go to the heart of the adjudicative process and your role as a judge. Cf. United States v. Microsoft Corp., 253 F.3d 34, 112 (D.C. Cir. 2001) (holding that trial judge violated Federal code of conduct by discussing, in pending case, his "opinions about the credibility of witnesses, the validity of legal theories, the culpability of the defendant, the choice of remedy, and so forth," all of which which "dealt with the merits of the action"). Moreover, providing public comment on the adjudicative process in a case you tried presents special concerns in criminal cases, where defendants can attempt to collaterally attack their convictions at any time and for a variety of reasons. Public comment about the adjudicative process, and specifically about conduct engaged in by you when serving as trial judge, runs the risk of either instigating or prejudicing a subsequent proceeding. In that regard, it is worth noting that sometimes very little is necessary to create a viable claim of judicial prejudice. See, e.g., In Re Boston's Children First, 244 F.3d 164, 167 (1st Cir. 2001).
Thus, it appears that the proposed interview would call on you to provide heretofore nonpublic information to a third person, the author, who would then characterize and interpret your interview in light of information obtained from multiple other sources. While that enterprise is at the heart of the valuable social function of journalism, the admonitions of Section 3 B (9) and Section 3 B (11) indicate that the judge's role is to provide and protect a public record that is appropriately the subject of the journalistic interpretation.
There are, admittedly, some subjects of the proposed interview that go to the administrative, rather than adjudicative, role of the judge. For example, questions of running a courtroom and dealing with security and other issues that flow from a high profile case would address administrative matters that can properly be discussed. The challenge in limiting an interview to administrative matters is the risk that the conversation will bleed into prohibited areas, including perceptions of the lawyers, litigants, and witnesses.
Conclusion. In sum, the Code of Judicial Conduct prohibits your discussion of the adjudicative process on matters not contained in the public record. Consequently, the Code does not allow you to discuss your "impressions" from your perspective as the trial judge; your thoughts about the case "in the context of those times"; how you "approached" the case; any "color or context" you might be able to provide; and anything else that "stood out" for you about the case if it would reveal information about the adjudicative process that is outside the public record. The Code would allow you, however, to discuss administrative matters, such as any "extra concerns" you may have had in managing a high profile matter, including security concerns, media concerns, steps you took to address these concerns, and, in the words of Section 3 B (9) (a), "the procedures of the court, general legal principles, or what may be learned from the public record in a case." Topics such as special concerns for the families involved lie on or near the border of administrative and adjudicative matters and would need to be addressed with caution so as to prevent the conversation from calling into question your impartiality in overseeing the matter.
As the preamble to the Code notes, "[i]ntrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law." In that role, it is imperative that judges maintain both the appearance and the reality of measured and thoughtful decisionmaking based on factors they present on a public record for scrutiny by all.