Hello everyone and welcome to this Ethics Alert which will discuss the recent Texas State Commission on Judicial Conduct admonished a Texas district court judge for commenting about a controversial trial on her public Facebook page after issuing jury instructions prohibiting same. The case is In re: Hon. Michelle Slaughter, CJC No. 14-0820-DI & 14-0838-DI (April 20, 2015). The link to the opinion is here: https://www.documentcloud.org/documents/2066528-slaughter-admonition-2015.html and here: https://www.scjc.state.tx.us/pdf/actions/FY2015-PUBSANC.pdf
According to the admonition, the judge maintained a public Facebook page which had an image of her in a robe, which she said she set up to fulfill a campaign promise to educate the public about the courts. The judge presided over a criminal case in which in which a defendant named David Wieseckel was criminally charged with unlawful restraint for allegedly keeping a 9-year-old boy in a 6 feet by 8 feet wooden enclosure that was used as the child’s bedroom.
The admonition states: “On April 26, 2014, Judge Slaughter posted the following comment on her Facebook page: ‘We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning.’ The following day, in response to the post described above, a person named Jeff Bodie posted the following comment on Judge Slaughter’s Facebook page: ‘One of my favorite Clint Eastwood movies is ‘Hang ‘Em High’, jus [sic] sayin [sic] your honor……’”
“In a pre-trial hearing on April 28, 2014, the defendant’s attorney argued a motion in limine to limit the use of the term ‘box’ to describe the wooden enclosure at trial, contending that the term was prejudicial to the defendant and misstated the evidence. Judge Slaughter denied defense counsel’s motion, stating the following: ‘Calling it a wooden enclosure – certainly the press has referred to it as ‘The Boy in the Box’ case, that sort of thing. So I don’t think that there’s going to be prejudice. The jury can make up their own minds as to what they believe that is.’”
“On April 28, 2014, after the jury had been selected, Judge Slaughter provided the jurors with oral instructions regarding their use of social media, including Facebook, and their access to any news stories about the case. The judge expressly admonished the jurors as follows: ‘During the trial of the case, as I mentioned before, you cannot talk to anyone. So make sure that you don’t talk to anyone. Again, this is by any means of communication. So no texting, e-mailing, talking person to person or on the phone or Facebook. Any of that is absolutely forbidden.’”
“In addition the judge provided written instructions to the jury that included the following admonition: ‘Do not make any investigation about the facts of this case. … All evidence must be presented in open court so that each side may question the witnesses and make proper objection. This avoids a trial based upon secret evidence. These rules apply to jurors the same as they apply to the parties and to me (the judge).’”
“On April 29, 2014, after the first day of testimony, Judge Slaughter posted the following comments on her Facebook page: • ‘Opening statements this morning at 9:30 am in the trial called by the press ‘the boy in the box’ case.’” • ‘After we finished Day 1 of the case called the ‘Boy in the Box’ case, trustees from the jail came in and assembled the actual 6”x8’ ‘box’ inside the courtroom!’ • ‘This is the case currently in the 405th!” [this post included a link to a Reuters article entitled: “Texas father on trial for putting son in a box as punishment.’]”
The judge was later removed from the case after defense counsel filed a motion to recuse her, claiming that she had improperly commented about the trial on her Facebook page and improperly posted the link to the Reuters article. Following her recusal, the case was transferred to another judge who judge granted a motion for a mistrial.
The judge argued at her discipline hearing that her Facebook posts were to promote “transparency” and to “encourage individuals to come watch the proceedings” and that the posts made it clear that it was the media which referred to the case as the “boy in the box” case. She also said she was “shocked” to see the “Hang ‘Em High” post and removed it from her page months later. She also argued that all of her comments were true and based on publicly available information.
The admonition noted that the judge’s Facebook posts, her recusal, and the subsequent mistrial received widespread negative media attention which criticized her conduct. The judge had also posted comments on her Facebook page about another criminal trial pending in her court. The judge removed the Facebook page after the investigation began.
“Despite her contention that the information she provided was public information, Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the Wieseckel case or in other high-profile cases.” “The comments went beyond providing an explanation for the procedures of the court and highlighted evidence that had yet to be introduced.” The admonition requires the judge to obtain four hours of instruction with a mentor in addition to her required judicial education.
According to media reports, the judge stated that she disagreed with the commission’s decision but would appeal. She also stated: “ None of my statements indicated any probable decision I would make, and none of my statements expressed a bias for or against any particular party. Everything I posted was publicly-available information”.
Bottom line: This is yet another example of a judge landing in hot water for comments made on social media, this time on Facebook. Judges (and lawyers) who maintain social media pages and make comments on them must be aware of the consequences of comments which may be inappropriate and which could result in discipline, which occurred in this case. If the judge appeals, the Texas Supreme Court will issue a final opinion.
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670