Ex Parte Communications in a Time of Terror

Georgetown Journal of Legal Ethics, The, Spring 2005 by Kerr, Kathleen

I. Ex PARTE COMMUNICATIONS IN A TIME OF TERROR

The Model Code of Judicial Conduct ("Model Code") prohibits ex parte communications in most circumstances, but what is a judge's obligation to avoid ex parte communications when he presides over a case based on confidential information concerning a suspected terrorist?1 The Associated Press recently reported that Judge Gerald Rosen, while presiding over the highly publicized Detroit Terror case,2 went to CIA headquarters and interviewed one of the prosecution's witnesses and reviewed other confidential information.3 Some experts suggest that Judge Rosen's actions could be grounds for challenging his partiality.4 It is debatable whether Judge Rosen acted improperly or simply adhered to procedures under the Classified Information Procedures Act ("CIPA") that expressly permits limited forms of ex parte communication. John Barrett, a law professor at St. John's University, said "CIPA doesn't really contemplate a judge doing his own national security investigative work."5 Peter Henning, a law professor at Wayne State University commented that "[a] judge is not supposed to engage in investigation of the (official court) record and with people who are aligned with one of the parties."6 The discussion regarding the behavior of the judge in the Detroit Terror case reveals that there is little guidance from the Model Code on appropriate parameters for judicial conduct in cases involving terrorists in a post-9/11 world.

II. CURRENT ABA RULE PROHIBITING EX PARTE COMMUNICATION

The Model Code in Canon 3(B)(7) suggests that judges must maintain the appearance of impartiality, must not appear to favor a party, and must act as an arbiter whose primary job is to judge on the facts presented to him. The Model Code states 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."7 The Comments to this rule clearly assert that "[a] judge must not independently investigate facts in a case and must consider only the evidence presented."8 The rule prohibiting judges from ex parte communication has historically been the position of the ABA:

In 1924, the House of Delegates of the American Bar Association adopted thirty-four Canons of Judicial Ethics, . . . Canon 17 included the following standard:

"A judge should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application."9

The U.S. legal profession firmly promotes the role of judge as arbiter to ensure a judicial system that is openly receptive to both sides of the issue and will not be unfairly prejudiced by meetings with one party.10 The uninfluenced arbiter can weigh the facts before her so that "no party or viewpoint [can] have an advantage in the presentation of information or the decision-making of a judge without notice to all interested parties. When ex parte communications are [engaged in], excluded parties lose the opportunity to rebut unfavorable or incorrect information."11

The judicial profession strongly upholds this commitment to impartiality. If a judge violates the principle set out in Canon 3(B)(7), the judge may voluntarily recuse herself, may be requested to recuse herself, or may have her decision overturned by an appellate court because of an appearance of impropriety.12 A recent example of a judge's choice to recuse himself occurred when circuit court Judge Jonathan C. Thacher recused himself from hearing the Washington, B.C. Sniper case. Prosecutors "filed a motion asking Thacher to recuse himself, saying he had violated judicial canons by launching his own investigation of a defense motion and interviewing potential witnesses."13 The Canons of Judicial Conduct in the Commonwealth of Virginia, like those of the ABA, instruct a judge to "disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."14 Judge Thacher decided to recuse himself to avoid the appearance of partiality.15 State v. Cash is an example of an appellate court holding that a judge could not participate in further proceedings in a remanded case because the judge had conducted independent investigations and appeared partial.16 The appellate court found that "[w]hile . . . [the] judge here acted in accordance with the highest principles of his office at trial, we must conclude that there was an appearance of partiality . . . [the] judge should not take part in any further proceedings."17 Judges are expected to recuse themselves if they even give the impression of partiality through ex parte communications.

There are exceptions to the rule prohibiting ex parte communications or ex parte investigations. For example, the drafters of the Model Code exempted five types of ex parte communications or investigations.18 First, the Model Code permits communication limited to administrative scheduling or for emergency purposes.19 This narrow exception, however, is limited further because the judge can only conduct the administrative or emergency ex parte communications if "the judge reasonably believes that no party will gain a procedural or tactical advantage."20 Also, the judge is required to relay any communication with one party to the other party and give the excluded party an opportunity to comment.21 second, the Model Code permits a judge to procure the advice of a "disinterested expert" on a particular topic as long as the judge notifies the parties of his inquiry, shares the substance of the report of the "disinterested expert" with all parties, and permits the parties a chance to "respond" to the new information.22 This permitted ex parte communication, however, does not permit communication with law professors "concerning a proceeding . . . except to the limited extent permitted."23 The Comments to the Model Code suggest that the proper procedure for a judge to obtain expert advice would be to request an amicus curiae brief.24 Third, the Model Code allows a judge to "consult with court personnel . . . or with other judges."25 Fourth, the Model Code allows the judge to work with the parties separately, by their consent, to assist parties in reaching a negotiated settlement.26 Finally, the Model Code recognizes a judge's ability to conduct ex parte communications or investigations if a specific law authorizes it.27 CIPA, the law relied on in the Detroit Terror Case, is an example of a law that expressly permits ex parte communications.