Opinion Number: 98-28
Date of Issue: November 16, 1998

WHETHER A JUDGE MAY APPEAR IN A DOCUMENTARY CONCERNING A CASE HE RECENTLY TRIED WHEN THE CASE IS CURRENTLY ON APPEAL?

Whether a judge may appear in a television documentary concerning a case he recently tried when the case is currently on appeal?
ANSWER: NO, pursuant to Canons 3B(7) & (9).

The inquiring judge presided over an action that is currently on appeal. Court TV plans to produce a television documentary about the trial and has asked the judge to appear in the documentary and discuss the case. The judge wishes to know whether he can appear in the documentary and, if so, what he may or may not say.

The inquiring judge cannot appear in the documentary and cannot discuss the case. Canon 3B (7) states, in part, that a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding. None of the exceptions set forth in Canon 3B (7) are applicable to the facts in this matter.

The Code of Judicial Conduct specifically forbids a judge from commenting on a pending case in Canon 3B(9), which states:

"A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing."

According to the Code comments, "the requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition."

The Committee answered a similar question in Opinion 85-9. In that opinion the inquiring judge wanted to know whether it would be proper to meet with a newly formed citizens' group called, "Advocates for Victimized Children." The group was apparently formed because of a sentence imposed by the inquiring judge in a case that was still pending. The group wished to speak with the judge on matters related to the case. The Committee members unanimously agreed that the judge should not meet with this group, at least for the special purposes mentioned.

In Opinion 96-18 the inquiring judge asked whether he could speak to the ACLU concerning a case in which the judge had a recalcitrant witness arrested. The judge stated that he believed that a motion for post-conviction relief was impending. The opinion referred to Canon 3B(9) in deciding that the judge was prohibited from having a general discussion with the ACLU or any other group concerning the case. The opinion does, however, state that the judge was not prohibited from explaining procedures of the court, which most likely include the procedures by which a witness who refuses to obey a subpoena may be detained.

See, also, Opinion 90-8 wherein the Committee unanimously found that a judge who has recused himself from a case could not respond publicly to a letter published in a newspaper criticizing his conduct of the case.

One Committee member stated that the inquiring judge could appear on in a TV documentary after the case is closed or even presently provided that he only explained procedures of the court pursuant to Opinion 96-18.

Therefore, it would be a violation of the Code of Judicial Conduct for the inquiring judge herein to appear on Court TV and discuss his case which is on appeal.

Florida Code of Judicial Conduct Canons 3B(7) & 3B(9).

Florida Judicial Ethics Advisory Committee Opinions 85-9, 90-8 and 96-18.

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Harry T. & Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.

Participating Members: Judges Dell, C. Kahn, L. Kahn, Patterson, Rushing, Smith, and Swartz.

Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)