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Criminal Justice Magazine
Spring 2003
Volume 18 Number 1
Criminal Justice Matters
J. Vincent Aprile II
J. Vincent Aprile II is a senior capital litigator with the Department of Advocacy in Frankfort, Kentucky, where he has been a state public defender for 30 years and served as the agency’s general counsel for 17 years (1982-99). He is also a former chair and current member of the Criminal Justice magazine editorial board and a contributing editor.
The Error of Legitimizing
Ex Parte Communications
"Problem-solving courts" are springing up in virtually every jurisdiction in this country, often to praise for efficiency, innovation, and success. But inherent in the design of "problem-solving courts" are opportunities for the dramatic revamping of the essential components of the legal system that guarantee criminal defendants a fair hearing and an unbiased, impartial judge. One example of this type of dangerous revision of the core values of this country’s criminal justice system was an experiment that recently took place in the drug court of one state.
As a result of an administrative judge’s order, any defendant who agreed to participate in the drug treatment court program was required to waive the right to be present or to have his or her lawyer present at regularly scheduled staffings to discuss the defendant’s ongoing progress and participation in the drug court program. Present at such meetings are the judge, the prosecutor, probation director, treatment personnel, pretrial release personnel, and a coordinator. The defendant’s lawyer may be present should he or she elect to attend. Regardless of the defense attorney’s reason for not attending such staffings, the defendant apparently had given up, as a condition of participation in the program, the right to challenge his or her lawyer’s absence from such meetings.
It is in this context that the defendant’s other prerequisite-to-admission waiver must be analyzed. To participate in the drug treatment program, defendants had to agree that "communications during these staffings may take place in the absence of" themselves or their attorneys and that "the judge may consider such communications," despite the obvious ex parte nature of such exchanges.
"The prohibition against ex parte communications, recognized by both state and federal courts, is designed to protect the integrity of the legal system." (Annotated Model Rules of Professional Conduct (4th ed.), ABA Center for Professional Responsibility (1999), p. 343.) The ban also is a prophylactic proscription devised to guarantee that every litigant has a fair, unbiased hearing.
The ethical precepts of both judges and lawyers condemn ex parte communications where a judge and a lawyer communicate about the substance of the case to the exclusion of opposing counsel. Where one counsel has access to the ear of the judge to the exclusion of his or her adversary in the case, the appearance of impropriety is immediately present. In the situation under review, an entrance requirement of the program was agreement by the defendant not only that ex parte communications between judge and prosecutor (and others) may occur, but that the judge may consider such communications in the defendant’s case. Indeed, the appearance of impropriety was made an inherent component of the drug treatment program that the defendant had to embrace as a condition precedent to his or her acceptance in the program.
Even in the context of a drug treatment court program, "the entire dispositional process requires the appearance of fairness in the attainment of the" decision to maintain or discharge the defendant from the program. (In the Matter of Lacava, 615 N.E.2d 93, 95 (Ind. 1993).) That appearance of fairness fades rapidly where ex parte communications are permitted between the prosecutor and the judge to the exclusion of both the defendant and his or her counsel. Ex parte "contacts cast doubt upon the adversary system and give the appearance of favoritism." (McElhanon v. Hing, 728 P.2d 273, 28 (Ariz. 1986).)
The presence and participation of opposing counsel have long been recognized as fundamental checks on the power of one advocate to mislead or misinform the court, whether intentionally or negligently. "[N]o matter how pure the motive any ex parte contact may allow the judge to be improperly influenced or inaccurately informed." (McElhanon v. Hing, supra, at 279; In Re Conduct of Burrows, 629 P.2d 820, 826 (Or. 1981).) When one’s adversary is present, it is less likely that counsel will resort to misstatements of fact or law because opposing counsel will challenge such misrepresentations and prevent the judge from relying on inaccurate and incorrect information.
Judicial conduct codes require that "[a] judge shall accord to every person who has a legal interest in a proceeding, or that party’s lawyer, the right to be heard according to law." The ban on a judge engaging in ex parte communications flows from this bedrock principle of judicial ethics. "The right to be heard," essential to a fair and unbiased hearing, is totally emasculated by the ex parte communication waiver at issue here. The mandatory waiver provision requires applicants to surrender their right to be heard by authorizing that the staffings can take place with the judge and prosecutor present, even though both defendants and their counsel are absent.
The judicial creation of a "waiver" process to allow defendants to consent to judges considering ex parte communications made out of the presence of the defendant and his or her lawyer is ethically incompatible with the judicial ban on such ex parte contacts. In most jurisdictions, "[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 or their lawyers concerning a pending or impending proceeding." This provision "does not permit the judge to solicit a party’s consent for the judge’s ex parte discussions with another party; it prohibits the judge from initiating ex parte communications about the pending case." (McElhanon v. Hing, supra, at 279.) In actuality, the judicially created "waiver" procedure is the equivalent of a "solicitation of consent," that is, in turn, "a form of initiation" of an ex parte contact or communication.
Thus, the waiver procedure, even though created by a judge in a ministerial capacity, must be construed as a judicial invitation to defendants to consent to otherwise prohibited ex parte contacts between the judge and the others who attend the staffings, including the prosecutor. Such a process, regardless of its procedural label, is a judicial initiation of ex parte communications about the pending case. After anticipating the absence of both defense counsel and the defendant at some or all of the staffings, the waiver mandates that the ensuing ex parte contacts with the judge will be legitimized by the defendant’s prior consent.
Most jurisdictions would reject in the individual case a judge’s rationalization for his or her ex parte contacts that was premised on the judge having obtained from counsel consent for the judge to speak ex parte to opposing counsel. In those situations "[c]ounsel reasonably might feel constrained from objecting to the judge’s request for" such ex parte contacts. (McElhanon v. Hing, supra, at 279.) But when the request for consent has been judicially institutionalized and made an entrance requirement of the drug treatment court program, both the defendant and his or her counsel reasonably might feel constrained from objecting to the waiver of ex parte contacts and communications. Indeed, both defendant and defense counsel might reasonably conclude that such an objection would be futile and a guarantee of rejection by the drug treatment court program.
At the staffings, substantive issues are discussed concerning the defendant’s progress or conduct including possible positive testings for drugs or noncompliance with outpatient treatment. It is acknowledged that at these staffings ex parte communications are likely to occur between the judge and the prosecutor, probation director, treatment personnel, pretrial release personnel, and/or the coordinator, even though the defendant and his or her counsel are absent. Most judicial codes in this country recognize that a judge must not independently investigate facts in a case and may consider only the evidence presented. Nevertheless, these ex parte communications made at these staffings can only be characterized as the judge’s independent investigation of the case, whether the judge is the passive recipient or the active instigator of the ex parte remarks. These ex parte communications become part of the judge’s non-record knowledge of the defendant and the case, even though neither the defendant nor his or her counsel is aware of the content of these exchanges.
This segues into the issue of judicial disqualification. Normally, a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned because the judge has personal knowledge of disputed evidentiary facts concerning the proceedings. The judge’s ex parte participation in these staffings, when neither defense counsel nor the defendant is present, is tailored to inculcate in the judge’s mind non-record knowledge of what may become disputed evidentiary facts in the pending case.
Does the waiver in question implicitly extend to the disqualification of the judge due to his or her personal knowledge of facts in issue? The more the drug court judge learns from these ex parte staff-ings the less neutral and detached the judge will be.
As explained above, ethical precepts governing the conduct of lawyers condemn ex parte communications where a judge and a lawyer communicate about the substance of the case to the exclusion of opposing counsel. Most jurisdictions recognize that "[i]n an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending." Even where a judge initiates the ex parte contact, the lawyer has an ethical duty to decline to participate in the exchange and to request that opposing counsel be included in the communication or at the minimum notified of the ex parte exchange.
Even under the "waiver" procedure experiment in the drug courts, a prosecutor is ethically required to eschew the ex parte staffings and the unfair litigation advantage to be gained by such participation. When offered an opportunity to communicate ex parte with the judge on the merits of a pending adversary proceeding, the lawyer has an ethical duty either to refrain from participating in those communications or to provide a copy of his or her response to opposing counsel. (In the Matter of Disciplinary Proceedings Against Ragatz, 429 N.W.2d 488, 491 (Wis. 1988).) To do otherwise, the lawyer "act[s] contrary to the objectives of our court system, a system in which he, as attorney, serves an integral role." (Id.) When a prosecutor participates in ex parte contacts with the judge under the "waiver" provision at issue here, "his actions den[y] one party to that litigation a full and fair hearing on the merits of the controversy." (Id.)
The ethical rules governing attorney conduct in many jurisdictions place an even higher duty of candor toward the tribunal on a lawyer who is participating in an authorized ex parte proceeding. This higher duty is mandated out of recognition that any ex parte proceeding, even where the opposing counsel has no standing to participate, turns the adversary system upside down and skews to a degree the ability of the judge to render a substantially just result. Thus, in an ex parte proceeding, a lawyer is ethically required to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, even when those facts are adverse. In an ex parte proceeding, there is no balance of presentation by opposing advocates. This ethical "higher duty" is an endeavor to bring an "unbalanced" presentation into a more balanced one to benefit not only the judge but also the integrity of the legal system.
Drug treatment court staffings do not meet the high threshold of necessity associated with ex parte judicial proceedings. The defendant and his or her counsel do not lack standing to participate. Indeed, the "waiver" itself recognized the right of defense counsel to be given notice of when the staffings are to occur and to participate therein. The waiver only required the defendant to give up these rights and the right to be heard at these staffings as a condition of participation in the drug treatment court program. These staffings with their potential to impact dramatically on the ultimate disposition of the case are not the stuff of true ex parte proceedings. They cannot be legitimized by imposing a higher ethical duty on the prosecutor to make disclosures of material facts that he or she reasonably believes are essential to an informed decision by the court. As ex parte proceedings, the staffings present an even greater problem because the judge hears from a variety of individuals other than the prosecutor without the defense attorney present to provide the check of a balanced perspective.
"‘[P]roblem solving courts’ (e.g., juvenile and adult drug courts, mental health courts, elder courts, and domestic violence courts)" are often "highly effective but labor intensive." (In re Certification of Need for Additional Judges, 806 So. 2d 446, 451 (Fla. 2002).) The "labor intensive" nature of the drug treatment program cannot be sufficient justification for undermining the integrity of this component of the legal system and denying the defendant and counsel the "right to be heard" by legitimizing ex parte communications at the staffings.
Most judicial codes recognize that "[a] judge may initiate or consider any ex parte communication when authorized by law to do so." Should an administrative judicial edict be of sufficient import to constitute this requisite exception to the prohibition on ex parte contacts and communications? It is troubling to relegate to a procedural gatekeeping measure this evisceration of a bedrock ethical principle that controls the conduct of both judges and lawyers to ensure the integrity of the legal system. The waiver procedure apparently contained no provisions to guarantee that the absence of the prosecutor from the staffings would not preclude the staffings from taking place, particularly when defense counsel is present and able to participate. The waiver procedure provided no checks on the type or nature of ex parte communications that may be made to or by the judge at such staffings. The waiver procedure apparently provided no alternative method of ensuring that the defendant and counsel would know, at least after the fact, the full content of the ex parte communications made at the staffings to allow the defense to take remedial action as soon as possible.
In the final analysis, the judicial administrative order creating the mandatory waiver procedure lacked the apparent authority of law because it allowed the judiciary by administrative fiat to exempt itself and lawyers who practice in the drug courts from the binding rules of ethics that govern their conduct in a myriad of litigation situations that are not markedly different from the staffings in the drug treatment court program. Such an administrative order appears to value expediency over principle and convenience over the integrity of the legal system. For the drug courts to function effectively and fairly, the price must not be the compromising or abandonment of the precept for judges and lawyers alike that ex parte contacts and communications are unethical in this context.
In response to the growing number of exonerations, the Criminal Justice Section has recently created an Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process. This committee, which is cochaired by Professors Myrna Raeder and Paul Giannelli, will propose ABA policy concerning systematic changes to the justice system designed to:
The committee will address issues that have been identified as possible factors leading to convictions of individuals who have later been exonerated. Topics that fall within the purview of committee review include:
Given its ambitious agenda, the Ad Hoc Innocence Committee is working closely with the following committees: Defense Function; Prosecution Function; Race and Racism; Rules, Sentencing and Corrections; Science and Technology; Standards; and Juvenile Justice. These committees have appointed liaisons who will also serve as members of the ad hoc committee. The ad hoc committee is scheduled to report back to the Criminal Justice Council at its November 2003 meeting. Interested CJS members can work on this effort by participating in existing committees, which will address topics that directly affect their mission.