Sunday, June 2, 2013

Social Anxieties: Facebook, Judges and Ethics

Dallas' 5th Court of Appeals has started the discussion on what constitutes bias when a trial court judge uses Facebook and is "friends" with someone closely connected to a case he hears. Alan Taggart, a McKinney solo, brought the issue to the 5th Court on behalf of his client.

Texas Lawyer

It's tough for appellate courts to divine the legal ethics of social media, which changes constantly. Yet in a recent opinion, Dallas' 5th Court of Appeals has started the discussion on what constitutes bias when a trial court judge uses Facebook and is "friends" with someone closely connected to a case he hears.

In a case of first impression, the 5th Court ruled that a trial judge's pre-existing Facebook friendship with the father of a crime victim was not evidence of bias.

Alan Taggart, a McKinney solo who brought the issue to the 5th Court on behalf of his client, believes that Texas courts have only begun addressing what judges should and shouldn't do when using Facebook.

"There's always a concern whenever a private citizen has access to any court in a manner that's not readily observed. . . . ," Taggart says. "And, ultimately, there are going to be more cases like this, and the courts and the Court of Criminal Appeals is going to give us an idea of what is and what is not appropriate."

The background to the 5th Court's May 15 decision in William Scott Youkers v. State of Texas is as follows.

Youkers was indicted for assaulting his girlfriend, who was pregnant with his child. He pleaded guilty to the assault allegations. Pursuant to a plea agreement, the trial judge assessed Youkers a 10-year prison sentence, suspended for five years.

Three months later, prosecutors filed a motion to revoke Youkers' supervision, contending he violated the terms and conditions of his supervision by testing positive for methamphetamines, among other things.

The trial judge then sentenced Youkers to eight years of imprisonment and denied a motion for new trial — rulings Youkers appealed to the 5th Court, according to the decision.

Among Youkers' appellate issues on the motion for new trial was a complaint that "there was an undisclosed friendship" between the judge and the father of Youkers's girlfriend, improper communications between the two and influence over the trial judge by the father, according to the decision.

Youkers relied on a private message the trial judge received on the judge's Facebook page approximately one week before Youkers' original plea.

The trial judge testified at the hearing on Youkers' motion for new trialthat he knew the father because they both ran for office in the same election cycle. He testified that they were designated as "friends" on Facebook and were "running at the same time," but that was "the extent of [their] relationship." At the time of the hearing, they were still Facebook "friends," according to the decision.

The Facebook communications began with a message from the father to the judge seeking leniency for Youkers. That message was posted just prior to Youkers' original plea. The trial judge responded online, formally advising the father that the communication was in violation of rules precluding ex parte communications. The trial judge also stated that he ceased reading the message once he realized the message was improper and cautioned that any further communication from the father about the case or any other pending legal matter would result in the father being removed as one of the judge's Facebook "friends," according to the decision.

The judge also advised that he was placing a copy of the communications in the court's file, disclosing the incident to the lawyers, and contacting the State Commission on Judicial Conduct to determine if further steps were required.

Breaking New Ground

In its decision, the 5th Court found that no other Texas court appears to have addressed the propriety of a judge's use of social media websites such as Facebook. Nor is there a rule, canon of ethics or a judicial ethics opinion in Texas proscribing such use.

However, the 5th Court noted that the American Bar Association has issued formal opinion No. 462, concluding that a judge may participate in electronic social media. [See "Is There a Place for Judges in the Twitterverse?" Texas Lawyer, March 11, 2013, page 1.]

To reach its conclusion, the 5th Court also referenced two articles written by Texas trial court judges, which offer advice on the ethical use of social media.

Ultimately, the 5th Court decided that the trial judge was in full compliance with the Texas Committee on Judicial Ethics' recommended procedure for treatment of ex parte communication.
Youkers asserted in his brief that, even if actual bias was absent, the evidence shows an appearance of bias. Yet when applying a "reasonable person test" the 5th Court found that the trial judge avoided the appearance of bias by how he handled the situation. The 5th Court also concluded that the trial judge did not abuse his discretion in denying the motion for new trial based on his Facebook activity.

"A reasonable person in possession of all of the facts in this case likely would conclude the contact between the judge and the father did not cause the judge to abandon his judicial role of impartiality; besides the evidence that the judge and the father's acquaintance was limited, any appearance of bias created by the Facebook communications was dismissed quickly by the judge's handling of the situation," wrote Justice Mary Murphy, in a decision joined by Justices David Bridges and Michael O'Neill.

"Youkers has failed to show actual or apparent lack of tribunal neutrality. The judge's designation as a Facebook 'friend,' without context providing insight into the nature of the relationship, was insufficient to show bias," Murphy wrote in affirming a modified judgment that deleted an award of attorney fees in the case.

Taggart says he has not yet spoken with his client about whether to appeal the decision to the Court of Criminal Appeals, but he says he'll offer to do so pro bono. A judge's use of social media is an issue that deserves further clarification, he says.

"I think the court of appeals has given us a minimum standard, which is: If someone communicates with you as a Facebook friend, you terminate the communication. I think that's the minimum," Taggart says of the appellate decision.
But the decision does not address situations where a judge may be a Facebook "friend" with a person but also may have a close relationship with that person offline.
Andrea Westerfeld, a Collin County assistant district attorney who represents the state in the case, declines comment.

Advice From the Bench

Gena Slaughter, judge of the 191st District Court in Dallas whose article about the judicial use of social media was cited in Youkers, says it's difficult to create ethics rules or statutes regulating a judge's use of technology, because it evolves rapidly.

"Here's the problem with making a canon: What about tomorrow? What about next week? What about next year?" Slaughter asks. "The problem is: Social media changes so fast. I don't think we can put anything in a canon that says: 'Don't do this.' "

She suggests lawyers and judges look at the issue this way: If communication with a judge is considered to be ex parte without the use of social media, it's certainly going to be considered ex parte with the use social media.

"I think ex parte is ex parte. I think this is an ethical issue, not a statutory issue," Slaughter says. Judges need to do their due diligence about whom they "friend" on Facebook, Slaughter says.
"The biggest concern is the judge's awareness. I've got a couple of hundred Facebook friends," she says, noting that she might not realize if one of those Facebook friends had a case in her court.
"I think it requires an awareness of who you're connected with," she says.

Susan Criss, judge of the 212th Court in Galveston who also wrote an article about the judicial use of social media that the 5th Court cited in Youkers, agrees with Slaughter's conclusions. Criss says she regularly admonishes lawyers and others who appear before her not to have ex parte communications with her about a case and, if they are Facebook friends, "not to assume we have a special relationship."

Yet Criss says she currently has 4,700 Facebook friends — a large number, which she says partly results from running for statewide office years earlier. Facebook is a network that many Texas judges use, because they have to run for election, she says.

Yet with so many Facebook friends, Criss says been caught off guard when one of those "friends" took the witness stand in her courtroom.

"And I had to stop the testimony and ask [the parties] if they wanted to recuse me," Criss says.
They didn't.

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