In my home state of Pennsylvania an important issue might start to wind its way through the courts: whether a judge must recuse himself simply because he is friends with a defendant on Facebook.
This isn’t the first time the issue of a Judge being friends with a defendant on Facebook has occurred in Pennsylvania. Another judge, Judge Placey, took some flak because he was friends with a defendant on Facebook (and also, as it turned out, friends with the defendant’s father.) My post discussing that case is here.
What makes the instant case particularly interesting is that it seems the only relationship Municipal Court Judge Charles Hayden has with the defendant is on Facebook. The defendant in the case is Representative Cherelle Parker who was charged with a DUI. Judge Hayden suppressed evidence against Representative Parker. After the Facebook friendship came to light, the Attorney General’s office asked the Judge to reverse the suppression and recuse himself from the case. The AG feels that the Facebook friendship causes an appearance of impropriety that cannot be cured by having the Judge and defendant unfriend each other. The Judge has over 1500 friends, the Representative over 4500.
Should the Judge recuse himself?
The AG notes that the Judge in the prior case, Judge Placey recused himself, but remember, in that case Judge Placey actually knew the father of the defendant. Judge Hayden does not have any relationship at all with the Representative, aside from a Facebook friendship. Does that matter? Should it?
The Facebook friend recusal test?
I suppose we could create a test. In that test we could ask:
1. Does the Judge have an offline relationship of any kind with the defendant?
2. If no, did the Judge and the defendant engage in communication via Facebook?
3. Did the defendant discuss the case?
One and two are relatively easy to analyze. Issue three is a bit more problematic. While we could have a third party look at the defendant’s Facebook account to determine whether the defendant posted about the case, we could never be certain. This is because it is easy to delete past posts on Facebook and we have no way to determine (according to Facebook) whether something was ever deleted.
Why do Judges recuse themselves?
Let me pause for a moment to explain why judges recuse themselves. Generally speaking, anything that causes an appearance of impropriety or might undermine public confidence in the judiciary is the basis for a party to request and a judge to potentially grant a recusal. It doesn’t matter whether there is actually an impropriety. Also, keep in mind that judges have considerable power when it comes to deciding if they should recuse themselves.
Back to the question – Should the Judge recuse himself?
We live in a society that is extremely sensitive to any appearance of impropriety. Being friends on Facebook, especially due to the fact that we can never be certain if the defendant discussed her case on Facebook, causes an appearance of impropriety. So, in my opinion, yes, Judge Hayden should recuse himself. Not because the Judge has done anything wrong, I imagine he had no idea he was friends with the Representative on Facebook. But that doesn’t matter. We can never be certain whether the Representative discussed her case or if the Judge expressed an opinion that gave she or her attorney information. I doubt they did, being a Judge and a Representative, but you can never know. And that is why recusal is about appearances and not certainties.
Judges need to be careful
As I said in my prior post on this subject, judges should, in my opinion, limit their Facebook friends. Personally, if I were a judge, I would limit those friendships to family and close friends, those people who, if they ever appeared before the judge, would cause him to immediately recuse himself. Given the fact we have, in a relatively short time period, had two public cases surrounding the issue of judges with friends on Facebook, it is clear the issue is not going away and is only going to become more problematic. So if I run into a judge tomorrow at the PBA Committee Section day event, and he asks me, “should I have a lot of friends on Facebook,” I would say, “Judge, do not walk, do not pass go, log on and remove everyone but family and very close friends. Period.”
Is this fair?
When the time came for me to take the bar exam I had to fill out an extremely detailed and invasive application. I also had to submit to a criminal background check and have my fingerprints taken and stored. Once I passed the bar and took the oath, I knew that I was expected to follow certain ethical rules, and also, should I run afoul of the law, I could easily lose the license for which I had worked so hard. I accepted the fact that I had given up some of my rights to become an officer of the court. As it happens, quite a few attorneys have gotten in trouble, of late, for their behavior on Facebook. Had they not been attorneys, they might have attracted attention, but they wouldn’t have gotten in trouble. (For some examples check out my powerpoint on the subject. Start around page 4.)
When an individual becomes a judge he has an even higher standard he must follow. Judges are the arbiters of justice, and must not only be fair and impartial, but must be seen as such. And so, in exchange for being a judge, judges give up some rights too. And it would seem, given the issues brought up by Facebook, one of the rights judges are giving up; is how many Facebook friends they may have.
Is there another option?
The reason Judge Placey and Judge Hayden had issues is because they did not know who their Facebook friends were. A simple way to deal with the problem is for judges to be aware of the identity of those friends, and immediately recuse themselves if one should appear before them.
Conclusion
In reality, the fact that a judge is Facebook friends with a defendant probably means nothing. Chances are the judge won’t know the person in life, never communicate with her on Facebook, and never see anything related to the case. But that doesn’t matter. The public can’t know that and as a result, the public’s faith in the judicial system can be undermined by a Facebook friendship. One only needs to have seen the reaction to Judge Placey’s Facebook friendship to know this to be true.
If judges want to avoid the problem of Facebook and defendants, they should simply limit their Facebook friends. If they want to be able to have as many friends as anyone else, then they need to be prepared to recuse themselves should one of those online friends end up before them in real life.