Transcript ethics_bja

Hon. Peggy Fulton Hora
Judge of the Superior Court of California (Ret.)
Ethical Issues in Adult Drug
Treatment Courts
Prosecution Ethics
 Protect and promote
public safety
 Cannot charge without
PC (Model Rule 3.8)
 Duty to dismiss weak
case
Jack McCoy, Law & Order
Net Widening
 Studies in AZ and CA found no evidence DAs
were overcharging and, in fact, in DTCs,
charges were being reduced to allow
participation
Riley, J. et al., “Just Cause or Just Because?
Prosecution and Plea-Bargaining Resulting in
Prison Sentences on Low-Level Drug Charges
in California and Arizona,” (2005)
Define:
Prosecution Issues
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Must adopt less punitive approach
Soft on crime (‘hug a thug’)
Conviction required or evidence lost
Trained to put people in jail
Misperception of link between mental illness & violence
“Buy in” from prosecutor required for program success
Defense Ethics
Yvonne Smith Segars, Esq., Public Defender of New Jersey
Defense Issues
 Effect of non-adversarial, collaborative approach in DTC
(Key Component, 2) and MH Court (Essential Elements of a
Mental Health Court, Element 8)
 Adversarial nature of traditional criminal courts may be roadblock
to open communication and a hindrance to recovery
 Success of rehabbing drug offenders depends on believing tx is
necessary
Lamparello, Adam, Comment & Note, Reaching Across Legal Boundaries: How Mediation Can Help the Criminal Law in
Adjudicating “Crimes of Addiction,” 16 OHIO St. J. on DISP. RESOL. 335, 335
Duty of representation
 “Duty of zealous representation” of client
 C.f., reasonable diligence and competence in
ABA Model Rule 1.3; “devotion and courage” in
advocacy in ABA (“Defense Function
Guidelines”)
 To competently represent client in DTC must
familiarize self with tx, procedures, bases for
sanctions or termination, etc. (Model Rule 1.1)
Smith v. State FL Ct.App. 4th Dist. 3/19/03
 Lawyers must educate themselves about drug court
programs.
 They cannot effectively advise their clients otherwise
 “To ignore the need to learn about the drug court process
is to ignore the evolution of the justice system”
 “For lawyers to do otherwise is for them to become legal
dinosaurs”
Mary Ann
 Prostitution, petty theft,
possession, DWI, vandalism
 Long-term health problems
(Hep C and cirrhosis)
 Wants out today
 Doesn’t want to go to DTC
 “There’s nothing wrong with
me”
Must guard against
 Use of TJ approaches “paternalistically”
…when client ‘really needs psychological
treatment or help’
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Daicoff, supra.
 Does it diminishes the role of the attorney?
 How is it different from explaining a plea
agreement?
 What is in the “best interests” of the client?
 What is an “informed decision” re:
representation (Model Rule 1.4)
 Balance client needs with “early and prompt
placement” in Key Component #3
Rhonda
 Coming down from 3 day
meth run
 Falling asleep while
interviewing
 “It wasn’t my meth. I was
holding for my boyfriend”
 “I don’t care what
happens. Just leave me
alone”
 Legal/cognitive competence of client to exercise
options
 Prone to relapse, AOD clients display denial,
rationalization, resistance so who is making the
decision - lawyer or client? (Model Rule 1.4, ABA
Std Criminal Justice 4-5.1)
Jennifer
 Current participant in
DTC
 Partied on the w/e
 Tested positive for
cocaine
 Swears it was a false
positive caused by
dental work
Novocaine, Lidocaine, Xylocaine
COCAINE
 Acquiesce to sanctions or “zealously” advocate
for client?
 Argue client’s position just in staffing or in
court?
 Therapeutic or anti-therapeutic effects of
arguments and location?
 “Whose team am I on anyway?”
 Quinn, Mae C., Whose Team Am I on Anyway? Musings of a Public Defender About Drug
Treatment Court Practice, 26 N.Y.U. Rev. of L. & Soc. Change 37 (2000-2001).
Ex parte Communication
 Ex parte communication must be specifically waived or
asserted (Model Code Judicial Conduct, Canon 3B(7))
 Who is present at staffing?
 Is it ok to attend team meetings w/out client?
 How many levels of hearsay in staffing?
 Are 42 CFR waivers executed for everyone present?
Brown v. State, MD Ct of Appeal 5-18-09
TJ and Judging
Hon. Melanie May, Justice of the Court of Appeals Florida
ETHICAL ISSUES ARISE FROM:
 The collaborative nature of drug courts
 The increased personal relationship of the
judge to a drug court participant versus a
“normal” criminal defendant
 Direct contact between the judge and
participant
 The community advocacy role of the drug
court judge
Judicial Issues
 Remaining objective & impartial
 Ensuring confidentiality, privacy, &
dignity
 Crafting appropriate sanctions
 Developing a more personal,
interactive style with defendants
Ted voluntarily withdrew from DTC
 What to do with participant who dropped out? Hear
case on regular docket? Recuse?
 Duty to hear all cases Canon 3B(1)
 Impartiality/bias or appearance Canon 3E(a)
 “Punish” them for failing?
Edmondson case
 D pled possession of mj with intent to distribute
 Judge terminated D from drug court
 No prior felonies
 Sentence: Life
 Judge used ex parte communication and inadmissible
polygraph tests to determine sentence
 HELD?
 Trial court’s finding that judge committed “oppression in
office” was not against the clear weight of the evidence
nor contrary to law or established principles of equity
 No judicial misconduct
 Specific to Oklahoma
Court on the Judiciary of Oklahoma, Appellate Division. State of OK, ex rel. W.A. Drew Edmondson,
Appellee v. Jerry L. Colclazier, District Judge Seminole Co., No. CJAD-01-2, June 14, 2002
No Due Process violation
 Same DTC judge may preside over the case and hear
probation violation hearing
 Ford v. Kentucky, Ct. of Appeal, April30, 2010
 State (NH) v. Belyea (May 20, 2010)
May increase sentence for “failure”
 San Bernardino County (CA) sentences to aggravated
term if fail out of drug court
 People v. Loveless Ct.App. 3-9-09 and People v. Miller Ct. App. 3-
24-09 said appropriate consideration to apply aggravated term
Incentives/Rewards
 Graduations rates increased from 432% to 55% if the
judge is the sole provider of rewards.
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Carey, Shannon M., Ph.D., et al., “Exploring the Key Components of Durg Courts: A
Comparative Study of 18 Adult Drug Courts on Practices, Outcomes and Costs,” NPC
Research (March 2008)
The “judge would be appearing to be lending the prestige
of judicial office to advance the private interests of the
commercial interests involved.”
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NY Opinion 02-77: Sept. 12, 2002
Ex parte communication Canon 3B(7)
ABA Rule 2.9(5)
 No ex parte communications except:
(5) A judge may initiate, permit, or consider any ex
parte communication 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. In this capacity, judges may
assume a more interactive role with parties,
treatment providers, probation officers, social
workers, and others.
Ex parte staffing
 Permissible to have ex parte communications at staffing
with appropriate waivers and outside of drug court
 Best practice to inform defense counsel of content and
nature of communications
 NY has specific administrative orders permitting such
communication
NY Opinion 04-88: March 10, 2005, Advisory Committee on Judicial Ethics, NY State Unified Court
System
State judicial ethics amendments
 Idaho
 Maryland
 Montana
 Minnesota
 New York
 Indiana
 Arkansas
 have all amended their Codes to specifically address
and permit ex parte communications in problem-solving
courts including staffings
Out-of-court contact with participants
Drug Court picnic
Bowling night
Judicial discipline
 Matter of Blackman, 591A.2d1339 (N.J. 1991)
“[J]udges who attends a public or social event will be
perceived as endorsing or supporting not only the event
itself but also persons associated with the event.”
 In re Jones, 581 N.W.2d 876 (Neb. 1998)
Canon 1 and Canon 2 violation to meet individually with
probationers.
Out-of-court contact
Jogging with juveniles
 Community service
project to jog with judge
 Non-participants may
wonder if they will get
worse treatment if they
don’t participate
 Could affect impartiality
Jud.EthicsAdComm. FL 201037
Fundraising
…for the Court
 Rubber chicken dinner (Attend? Speak?)
 Wine auction (Auctioneer?)
 Grant application (governmental or private?)
 Appear before local board of supervisors, state
legislators, Congress re: funding?
 Write letter in support of legislation?
 Bake sale?
 Honoree at the Friends of the Overshoe County Drug
Treatment Court at $150/plate?
Bd. Membership in 510(c)(3)
 May not be an officer or
director or help in any
way the foundation used
to solicit funds for the
drug court
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NY Opinion 97-83: Sept. 11, 1997
 May participate as an applicant for grant funding
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2002 OK Jud Eth2. Oklahoma Judicial Ethics Advisory Panel, Judicial Ethics Opinion No. 2002-2,
Jan. 25, 2002
 May not solicit incentive gifts from lawyers
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2007 Florida Supreme Court Judicial Ethics Advisory Committee
 ABA Ethics Opinion 08-452 agreed with OK and
FL
ABA Model Code of
Judicial Conduct
 3.7 Permits solicitation for govt. entities and nonprofits
concerned with admin of justice, etc. but only from family
and other bench officers over whom you have no
supervisorial position
 1.2 “Act in a manner that promotes public confidence in
impartiality and integrity…”
 Duty to recuse if lawyer at the rubber chicken dinner
appears before you? She bought a table of 10 and her
firm was a Golden Sponsor. Next attorney bought 1$150 ticket
ABA Opinion
 Judges in drug courts find themselves being urged to
engage in efforts to raise private funding
 No specific prohibition against fundraising for the court
 BUT 3.7 and 1.2
 Judge is “well-advised” to take both the size and
importance of the contribution in deciding recusal
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ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 08-452 (Oct.
17, 2008)
Community Service
 May attend and receive an award at a dinner sponsored
by a local not-for-profit organization that is a member of
the drug court team
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NY Opinion 01-33: April 18, 2002 Advisory Committee on Judicial Ethics. NY State Unified Court
System
 May not sit on the Board of tx facility that serves drug
court
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NY Opinion 98-10: March 12, 1998
 May sit on Board that develops job skills
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NY Opinion 88-121: Oct. 17, 1988
Other activities outside Court
 Attending 12-Step or visiting tx facilities
 Ride along on probation checks
 Receiving award by tx community
DV Courts
Award by DV community?
1. DV Courts are still adversarial
2. Ct goal: to enhance victim safety and increase
offender accountability
3. D perceives judge more closely aligned with victim
4. Appearance of impropriety?
NY Ethics Advisory Opinion 08-191
Team Approach
 Violation of Due Process to allow team to
deliberate/recommend disposition when statute vested
authority in trial court
 Judge delegated decision-making authority to the team
Tennessee v. Stewart, Ct. of Crim. Appeals at Nashville (10/6/08) 2008 Tenn. Crim. App. LEXIS 784
 "I have no thoughts or opinions on what you should do,
should you decide that [the defendant] should come
back with no sanctions whatsoever, or if he should be
revoked and dismissed from the program or anything
between, I do not care what your opinion is. I trust your
judgment."
 Neither the transcript of the hearing nor the
order reflect that the trial judge engaged in its
own deliberation of the proper disposition of the
case.
The Team Approach
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With whom does the final decision
rest?
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What is the reporting mechanism?
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Individual agency responsibilities
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Jurisdiction of the court
Who’s driving the BUS?
Avoiding Problems
 Review your state’s Canons and Codes
 Check for any opinions specific to drug courts
 Ask for ethics opinions on issues of concern
 No court has ever found collaborative approach to be
illegal when approached properly
 Examine your own prejudices
 Preconceived notions, biases, and stereotypes about
people with AOD abuse and/or mental disorders can
prevent fairness and impartiality toward those who have
them