DRUG COURT ETHICS

Judge Jamey H. HuestonNew Orleans

October 8, 2014

Rights, Wrongs & In Betweens

“It is foolish to argue that we don’t need ethics because we have laws …

It is because of ethics that we have laws in the first place…

We need ethics to refine & perfect our legal system … in situations where the reasonableness of a particular belief is at issue, ethics helps us reach a sound decision.”

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Key Component # 2

Using a nonadversarial approach,

prosecution and defense counsel promote

public safety while protecting participants’

due process rights.

What Wins?

DTC’s non-adversarial system vs

ethical duties of judges and lawyers?

Simon, William H., Criminal Defenders and Community Justice: The Drug Court Example, 40 AM CRIM. L. REV. 1595, 1596 (2003)

Prosecution Power

• DA knows Dan for years• Petty criminal with long record• In and out of jail• Scam artist, failed informant, no trust

(Loser)• Technically meets DTC criteria• Reports to team “should not accept”• Ethical?

Prosecution Ethics

• Protect and promote public safety

• Ensure all charges are supported by PC

• Dismiss non-viable cases

• Do not seek waiver of rights from PSL make reasonable efforts to advise of right & procedure to obtain counsel

• Protect P’s Due Process rights

ABA Model Rules of Professional Conduct: Rule 3.8 Special Responsibilities of a Prosecutor

Rumpole of the Old Bailey  

Jack McCoy, Law & Order

Defense Dilemma… Even stickier• Drugs: H 20 years, 10 years on meth

“I use as much as I can get”

• Poor health, no job, home or family

• Prior treatment: none

• Extensive record: drugs, theft, burglary …+

• Charge: possession of heroin

• State rec: jail or DTC

• Status: detained

• Defense: needs more time to complete investigation & obtain

discovery, great search issue

• Harry: wants /needs DTC NOW!

Harry Win

Huge Issues!

“Paternalistic” vs “best interests”

“Zealous advocate” vs DTC “co-conspirator”

Therapeutic vs legal consequences

Competency to decide options

Acquiescence to sanctions

Due Process implications

…and More

• More jail time

• More court appearances

• More FTA’s

• More work for client

• Readiness

• Exposes root cause of addiction

• Exposes personal information

ABA Standards of Professional Conduct Model Rule 1.1 Competent representation

legal knowledge, skill, thoroughness & preparation investigate pending charges

obtain discovery, info from prosecution & law enforcement consider full range of legal defenses litigate motions

Model Rule 1.3 Diligence Client-Lawyer Relationshipact with reasonable diligence and promptness

Model Rule 1.4 Communications informed decisions – proper explanations

Model Rule 2.1 Advisorrefer to law & other considerations i.e., moral,

economic, social, political that may be relevant

Attorney Issues

• Too much work for Attorney• Social worker • Diminishes role of attorney?

ExParte Dilemma

Tremendous Treatment phones Judge to

advise that other residents of the facility are

complaining that Mary Juana is bringing

in drugs.

They request her detention ASAP

Staffings

Who’s present?

Staffing

Probation agent reports at staffing that

Debbie Do Drugs’ boyfriend called

“she is using & selling drugs again.”Boyfriend heard the info from Ms. Drugs’ brother

HEARSAY? Where argue P’s position: at staffing? in court?

Ex parte communications are permissible

at staffing & outside of drug court:

• give notice to & inform P’s attorney of content & nature

• consent & waivers

• authorizing administrative orders

New York Adv Co. on Jud Eth 04-88 (2005) Brown v. State, MD Ct of Appeal (2009)

Win by Waiver?

ABA Rule 2.9 - Ex Parte Communications

Shall Not except: when expressly authorized by law to do so.

Comment [4]A judge may initiate, permit, or consider ex parte communications …when serving on therapeutic or problem-solving courts, mental health courts, or drug courts… judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

Team Talk• After termination hearing, Judge asked the Team to

deliberate & submit written recommendation

• They voted to terminate P & serve original sentence

• Judge stated “I trust your judgment.”

• Held: Judge can’t consult outside entities or delegate decision-making authority

Court improperly received communication outside the presence of the parties

Assigned to another judge on remand

Tennessee v. Stewart, Ct. of Crim. App at Nashville, 2008 Tenn. Crim. App. LEXIS 784

Deep Thoughts

• Team provides info & opinions • staffing discussions are advisory only• judge considers P’s comments at hearing before final

decision• judge does not delegate decision-making responsibility• final decision rests with Judge • judge does not initiate extra-judicial inquiries• judge immediately notifies parties of

substance of communication

Key Component #7

Ongoing judicial interaction with each

drug court participant is essential

Non-Traditional Court Involvement

In Court:• handshakes, applause, votes

Out of Court:

• other litigation e.g. child support

• advocate with employer, another judge, parole board

• character references

• allowed P to escape thru chambers to avoid arrest warrant

Judicial Conduct

Determine whether conduct is prejudicial to administration of justice:

impact that conduct might

reasonably have on knowledgeable observers

Judge’s motives are not important In Re Ellender, 889 So. 2d 225 (2004)

Extra Judicial DTC Activities

• Attends after-graduation festivities

• Speaks at alumni meeting & mixes with active participants afterwards

• Serves food at holiday parties & socializes with participants & their families

• Visits with several probationers & joins them for dinner

• Leads weekend jogging & fitness exercises

• Hosts & attends the “Lets Go Os free bat night”

• Organizes a softball team w participants & staff

Best Practices

• Impartiality in court room

• Maintain dignity & decorum of court

• No extra judicial contact outside of court

• No bias or favoritism

• Equal, consistent treatment

• Contact in court, in the open

Extra Judicial & Team Community

Activities

• Judge / Coordinator speaks at local Animal Club

• Judge / Coordinator debates the efficacy of Drug Courts on a radio program

• Judge speaks at the Refer Madness Legalization Rally

ABA Canon 3A judge shall conduct personal and extrajudicial

activities to minimize the risk of conflict

Rule 3.1 Extrajudicial activities are acceptable except:A) interfere with performance of judicial dutiesB) lead to frequent disqualifications C) appear to undermine independence, integrity, impartialityD) appear to be coercive

E) use court resources premises, staff, stationery, equipment

Comment 4 Don’t coerce or take action that would reasonably be perceived as coercive.

Key Component # 10

“Forging partnerships among drug

courts, public agencies, and

community-based organizations

generates local support and

enhances drug court program

effectiveness.”

DTC 501 (C) (3)DTC judge may not serve as officer, director or assist in

formation of a not-for-profit corporation, which solicits funds & services for benefit of the program.

New York Advisory Co on Jud Eth Op, 95-88 (9/1/97) & 97-83(9/11/97)

But, DTC judge may serve as director of a non-profit formed to solicit funds from the community for incentives,provided judge is not involved in active or passive fund-raising. Maryland Jud Eth Co Op, 2005-11 (9/23/05)

Rule 3.1 Extra Judicial Activities

Judges are uniquely qualified To: engage in activities regarding the law, legal

system, admin of justice

By: speaking, writing, teaching, scholarly research. Judges are encouraged to engage in educational,

religious, charitable, fraternal, civic activities Not: conducted for profit

Integrate into communities Furthers public understanding and respect

for the courts

So Many Questions?????

Can a judge be a member of an online social networking community?

Include lawyers who may appear before the judge?

Include lawyers, court staff, law enforcement, social workers, who have a case pending before the judge?

ID self as a judge?

Wear robe in a photo?

Like events and organizations?

Post comments?

“Social sites are fraught with peril for judges”

“Judges can not participate the same as the general public”

“The same principles apply in virtual settings as public settings”

“How would the behavior appear to a reasonable person?”

Factors

• Nature of the social networking site• Judge’s practice in determining whom to include• Number of “friends” on the page• Judge’s practice in determining whom to include • How regularly the attorney appears before the judge

California Adv Co. on Jud Eth, Op 66 (2011)

Rule 1.2 Promoting Confidence in the Judiciary Uphold and promote

independence, integrity, and impartiality of judiciary, avoid impropriety & appearance of impropriety

COMMENT 1) appearance of impropriety

2) expect public scrutiny 3) undermines public confidence

5) test – does the conduct reflect adversely on judge’s honesty, impartiality, temperament, or fitness to serve - to a reasonable mind

ABA Formal Opinion 08-452 10-17-8

Fundraising Maybe’s…• Apply for grant funding – Public? Private? Y

Considered a request for allocation of appropriated funds, not a solicitation. OK Jud Eth Op, 2002-2 (2002)

• Serve as president of Club that performs charitable activities supported through fund-raising? Y If judge is insulated & separate from fundraising

• Serve as Master of Ceremonies at charitable organization dinner?

DE Advisory Co on Jud Eth Op, 2012

Model Code Rule 3.71) fund-raise, plan, manage, invest funds

2) solicit contributions only from family members or judges over

if no supervisory or appellate authority

4) appear, speak, receive an award or recognition, be featured on program, permit title to be used. If event concerns law, legal system, admin of justice

5) make recs to public or private fund-granting orgs regarding law, legal system, admin of justice

6) serve as officer, director, trustee, or nonlegal advisor unless org

a) ordinarily come before the judge

b) frequently engaged in adversary proceedings in the court of which judge is member

Team Money Issues

• Interfere with payment processes• Mis-report time/services• Lend & Purchasing • Counsel outside of professional role • Engage in business relationships

N/A - A/A - Self Help Groups

• Your population is highly addicted to Meth. You have found that a daily N/A regimen greatly increases their chances of success.

• Every probation order requires “daily N/A meetings”

• Participant Muhamed El-Amin refuses to attend, citing religious conflicts

The 12 Steps

Step 2 - Believe that a power greater than ourselves can restore us to sanity.

Step 5 - Admit to God “the exact nature of our wrongs”

Step 6 - we are ready to have God remove defects of character

Step 7 - Humbly ask God to remove our shortcomings.

Step 11 - Seek through prayer and meditation to improve our conscious contact with God as we understood Him,

Step 12 - Having had a spiritual awakening as the result of these steps, try to carry this message to alcoholics, and practice these principles.

First Amendment

Establishment Clause

“Congress shall make no law respecting an establishment of religion or prohibiting the full exercise thereof…”

Best Practice: provide options for other 12 step or secular self-help groups Alternatives to 12 Step group http://www.soberrecovery.com/Glossary/12_Step_Alternatives.html

allow P to choose

Does Confidentiality Apply in DTC Program = engaged in diagnosis, referral, or treatment

An individual or unit within the DTC is a “program” or “covered entity”

Are Our Participants Covered?

“Protected Persons …Patients”P fails to show for treatment intake appointment. Is P even covered?

Y, “Patient” - sought or received services from a treatment program

How can we protect program / P?

GET CONSENT & FAST

Consents

Criminal Justice System (CJS) consents

Disclosure Permitted: assessment & treatment is an official condition

of DTC participationinformation is necessary to monitor treatment,

progress & compliance

Disclosure Not Permitted: if information will harm P to law enforcement seeking to prosecute a separate

crime (unless consent specifically permits)

Reality Check

Is the consent really valid? Coercion in disguise? 1) D refuses to sign HIPPAA consent form

Can a program refuse treatment?

but

2) Can DTC refuse acceptance into DTC?

Confidentiality in Court

• Can we share, compare, exchange, disclose information?

• Court as theater, learning exercise

• Judge decides sharing information is a “legitimate part of the court’s official duties & responsibilities with respect to the criminal proceedings”.

• Care in discussion of highly personal matters

• Minimum Necessary Information standard (Need to know)

Recuse or Not?

The Saga of Terminated Terry • 18 months in DTC• absconded 2 times• missed numerous treatment & supervision

meetings• submitted adulterated urines • arrested for a drug offense

Should DTC judge recuse?

Recusal – Impartiality

CANON 2 A judge shall perform the duties of judicial office impartially, competently, and diligently

RULE 2.11 Disqualification A judge shall disqualify self in any proceeding in which impartiality might reasonably be questioned

Recusal

DTC judge, as team member cannot function as a neutral and detached hearing body for probation violations.

Tennessee v. Stewart, No. W2009-00980-CCA-R3-CD

(2009)

But See:Claim of bias and lack of impartiality based on Judge who is on

the team & questions P at hearings is unfounded. Alexander v St 48 P3d

110 (Ok 2002)

Defendant needs concrete evidence that suggests judicial bias. St v Tatlow, 231 Ariz 34

(2012)

Waiver: P can voluntarily waive right to seek recusal

Wilkinson v State, 641 S.E. 2d 189 (Ga 2006)

Recusal Factors

Consider:• evidence of bias• harbor prejudice against P• personal knowledge concerning a party, lawyer or disputed

evidence outside the record• expressed opinion showing prejudgment

Kentucky v Harpring, No. 2004-CA-000898-MR. 8/12/05 BiasTest:

Would fully informed disinterested observer entertain significant doubt about judge’s ability to fairly and impartially judge the issues.

State v. Belyea, 999 A.2d 1080 (NH 2010)

Coercion & then some…

• Judge ordered Ds’ to attend his DWI School In re Judge Rainaldi, No. 16559, 727 P.2d 70 (1986)

• Judge’s “sales pitch,” & pushing litigants into DTC by stating “I could sentence you up to the maximum.”

NACDL

• J assessed probation fines in favor of "I Care" while on its advisory council.

In re: Morvant 15 So. 3d 74; La (2009)

Misc Ethics Issues• Judge referred D charged with drug distribution to Family

DTC. D’s boyfriend was personal friend of Judge

In re McBee, NM No. 29,265 (2006)

Sentencing judge sent money to convicted robber, allowed Ds to stay at his residence, gave rides, ate lunch and visited with Ds in chambers. Jud Discipline & Disability Commission vs. Proctor, No. 09-738, 2010 Ark

• Broadcasting DTC or simulated proceedings in conjunction with a for profit enterprise does not promote public confidence in the integrity of the judiciary. Judge may not abuse the office for personal gains. Jud Discipline & Disability Commission vs. Gunn, No. 2010 Ark

Thank you

The Honorable Jamey H. Hueston

Jamey.hueston@courts.state.md.us

(410) 878-8556