DRUG COURT ETHICS
Rights, Wrongs & In Betweens
Judge Jamey H. Hueston
New Orleans
October 8, 2014
“It is foolish to argue that we don’t need ethics
because we have laws …
It is because of ethics that we have laws in the first
place…
We need ethics to refine & perfect our legal system
… in situations where the reasonableness of a
particular belief is at issue, ethics helps us reach a
sound decision.”
Unknown
Key Component # 2
Using a nonadversarial approach, prosecution and
defense counsel promote public safety while
protecting participants’ due process rights.
What Wins?
DTC’s non-adversarial system
vs
ethical duties of judges and lawyers?
Simon, William H., Criminal Defenders and Community Justice:
The Drug Court Example, 40 AM CRIM. L. REV. 1595, 1596 (2003)
Prosecution Power
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DA knows Dan for years
Petty criminal with long record
In and out of jail
Scam artist, failed informant, no trust (Loser)
Technically meets DTC criteria
Reports to team “should not accept”
Ethical?
Prosecution Ethics
• Protect and promote public safety
• Ensure all charges are supported by PC
• Dismiss non-viable cases
• Do not seek waiver of rights from PSL
make reasonable efforts to advise of
right & procedure to obtain counsel
• Protect P’s Due Process rights
Jack McCoy, Law & Order
Defense Dilemma… Even stickier
• Drugs: H 20 years, 10 years on meth
“I use as much as I can get”
• Poor health, no job, home or family
• Prior treatment: none
• Extensive record: drugs, theft, burglary …+
• Charge: possession of heroin
• State rec: jail or DTC
• Status: detained
• Defense: needs more time to complete
investigation & obtain discovery,
great search issue
• Harry: wants /needs DTC NOW!
Harry Win
Huge Issues!
 “Paternalistic”
vs
 “Zealous advocate”
vs
DTC “co-conspirator”

Therapeutic
vs
legal consequences

Competency to decide options

Acquiescence to sanctions

Due Process implications
“best interests”
…and More
• More jail time
• More court appearances
• More FTA’s
• More work for client
• Readiness
• Exposes root cause of addiction
• Exposes personal information
ABA Standards of Professional Conduct
Model Rule 1.1 Competent representation
legal knowledge, skill, thoroughness & preparation
investigate pending charges
obtain discovery, info from prosecution & law enforcement
consider full range of legal defenses
litigate motions
Model Rule 1.3 Diligence Client-Lawyer Relationship
act with reasonable diligence and promptness
Model Rule 1.4 Communications
informed decisions – proper explanations
Model Rule 2.1 Advisor
refer to law & other considerations i.e., moral, econom
social, political that may be relevant
Attorney Issues
• Too much work for Attorney
• Social worker
• Diminishes role of attorney?
ExParte Dilemma
Tremendous Treatment phones Judge to
advise that other residents of the facility are
complaining that Mary Juana is bringing
in drugs.
They request her detention ASAP
Staffings
Who’s present?
Staffing
Probation agent reports at staffing that
Debbie Do Drugs’ boyfriend called
“she is using & selling drugs again.”
Boyfriend heard the info from Ms. Drugs’ brother
HEARSAY?
Where argue P’s position: at staffing? in court?
Win by Waiver?
Ex parte communications are permissible
at staffing & outside of drug court:
• give notice to & inform P’s attorney of content
& nature
• consent & waivers
• authorizing administrative orders
New York Adv Co. on Jud Eth 04-88 (2005)
Brown v. State, MD Ct of Appeal (2009)
ABA Rule 2.9 - Ex Parte Communications
Shall Not except:
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… judges may assume a more interactive role
with parties, treatment providers, probation
officers, social workers, and others.
Team Talk
• After termination hearing, Judge asked the Team to
deliberate & submit written recommendation
• They voted to terminate P & serve original sentence
• Judge stated “I trust your judgment.”
• Held: Judge can’t consult outside entities or delegate
decision-making authority
Court improperly received communication
outside the presence of the parties
Assigned to another judge on remand
Tennessee v. Stewart, Ct. of Crim. App at Nashville,
2008 Tenn. Crim. App. LEXIS 784
Deep Thoughts
•
Team provides info & opinions
•
staffing discussions are advisory only
•
judge considers P’s comments at hearing before
final decision
•
judge does not delegate decision-making responsibility
•
final decision rests with Judge
•
judge does not initiate extra-judicial
inquiries
•
judge immediately notifies parties of
substance of communication
Key Component #7
Ongoing judicial interaction with each
drug court participant is essential
Non-Traditional Court Involvement
In Court:
• handshakes, applause, votes
Out of Court:
• other litigation e.g. child support
• advocate with employer, another judge, parole board
• character references
• allowed P to escape thru chambers to
avoid arrest warrant
Judicial Conduct
Determine whether conduct is prejudicial
to administration of justice:
impact that conduct might reasonably
have on knowledgeable observers
Judge’s motives are not important
In Re Ellender, 889 So. 2d 225 (2004)
Extra Judicial DTC Activities
• Attends after-graduation festivities
• Speaks at alumni meeting & mixes with active participants
afterwards
• Serves food at holiday parties & socializes with participants
& their families
• Visits with several probationers & joins them for
dinner
• Leads weekend jogging & fitness exercises
• Hosts & attends the “Lets Go Os free bat night”
• Organizes a softball team w participants & staff
Best Practices
• Impartiality in court room
• Maintain dignity & decorum of court
• No extra judicial contact outside of court
• No bias or favoritism
• Equal, consistent treatment
• Contact in court, in the open
Extra Judicial & Team
Community Activities
• Judge / Coordinator speaks at local Animal Club
• Judge / Coordinator debates the efficacy of Drug
Courts on a radio program
• Judge speaks at the Refer Madness Legalization Rally
ABA Canon 3
A judge shall conduct personal and extrajudicial activities to
minimize the risk of conflict
Rule 3.1 Extrajudicial activities are acceptable except:
A) interfere with performance of judicial duties
B) lead to frequent disqualifications
C) appear to undermine independence, integrity, impartiality
D) appear to be coercive
E) use court resources premises, staff, stationery, equipment
Comment 4 Don’t coerce or take action that would reasonably
be perceived as coercive.
Key Component # 10
“Forging partnerships among drug courts,
public agencies, and community-based
organizations generates local support
and enhances drug court program
effectiveness.”
DTC 501 (C) (3)
DTC judge may not serve as officer, director or assist in
formation of a not-for-profit corporation, which solicits
funds & services for benefit of the program.
New York Advisory Co on Jud Eth Op, 95-88 (9/1/97)
& 97-83(9/11/97)
But, DTC judge may serve as director of a non-profit formed to
solicit funds from the community for incentives,
provided judge is not involved in active or passive fund-raising.
Maryland Jud Eth Co Op, 2005-11 (9/23/05)
Rule 3.1
Extra Judicial Activities
Judges are uniquely qualified
To: engage in activities regarding the law, legal system,
admin of justice
By: speaking, writing, teaching, scholarly research.
Judges are encouraged to engage in educational,
religious, charitable, fraternal, civic activities
Not: conducted for profit
Integrate into communities
Furthers public understanding and respect for the courts
So Many Questions?????
 Can a judge be a member of an online social networking
community?
 Include lawyers who may appear before the judge?
 Include lawyers, court staff, law enforcement, social
workers, who have a case pending before the judge?
 ID self as a judge?
 Wear robe in a photo?
 Like events and organizations?
 Post comments?
“Social sites are fraught with peril for judges”
“Judges can not participate the same as the
general public”
“The same principles apply in virtual settings as
public settings”
“How would the behavior appear to a reasonable
person?”
Factors
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Nature of the social networking site
Judge’s practice in determining whom to include
Number of “friends” on the page
Judge’s practice in determining whom to include
How regularly the attorney appears before the judge
California Adv Co. on Jud Eth, Op 66 (2011)
Rule 1.2 Promoting Confidence in
the Judiciary
Uphold and promote
independence, integrity, and impartiality of judiciary,
avoid impropriety & appearance of impropriety
COMMENT
1) appearance of impropriety
2) expect public scrutiny
3) undermines public confidence
5) test – does the conduct reflect adversely on judge’s honesty,
impartiality, temperament, or fitness to serve to a reasonable mind
ABA Formal Opinion 08-452 10-17-8
Fundraising Maybe’s…
• Apply for grant funding – Public? Private?
Y Considered a request for allocation of appropriated
funds, not a solicitation.
OK Jud Eth Op, 2002-2
(2002)
• Serve as president of Club that performs charitable activities
supported through fund-raising?
Y If judge is insulated & separate from fundraising
• Serve as Master of Ceremonies at charitable
organization dinner?
DE Advisory Co on Jud Eth Op, 2012
Model Code Rule 3.7
1) fund-raise, plan, manage, invest funds
2) solicit contributions only from family members or judges over
if no supervisory or appellate authority
4) appear, speak, receive an award or recognition, be featured on
program, permit title to be used. If event concerns law, legal
system, admin of justice
5) make recs to public or private fund-granting orgs regarding law,
legal system, admin of justice
6) serve as officer, director, trustee, or nonlegal advisor unless org
a) ordinarily come before the judge
b) frequently engaged in adversary proceedings in
the court of which judge is member
Team Money Issues
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Interfere with payment processes
Mis-report time/services
Lend & Purchasing
Counsel outside of professional role
Engage in business relationships
N/A - A/A - Self Help Groups
• Your population is highly addicted to Meth.
You have found that a daily N/A regimen greatly
increases their chances of success.
• Every probation order requires “daily N/A
meetings”
• Participant Muhamed El-Amin refuses to attend,
citing religious conflicts
The 12 Steps
 Step 2 - Believe that a power greater than ourselves can restore us
to sanity.
 Step 5 - Admit to God “the exact nature of our wrongs”
 Step 6 - we are ready to have God remove defects of character
 Step 7 - Humbly ask God to remove our shortcomings.
 Step 11 - Seek through prayer and meditation to improve our
conscious contact with God as we understood Him,
 Step 12 - Having had a spiritual awakening as the result of these
steps, try to carry this message to alcoholics, and practice these
principles.
First Amendment
Establishment Clause
“Congress shall make no law respecting an establishment of
religion or prohibiting the full exercise thereof…”
Best Practice:
provide options for other 12 step or secular self-help groups
Alternatives to 12 Step group
http://www.soberrecovery.com/Glossary/12_Step_Alternativ
es.html
allow P to choose
Does Confidentiality Apply in DTC
Program = engaged in diagnosis, referral, or treatment
An individual or unit within the DTC is a
“program” or
“covered entity”
Are Our Participants Covered?
“Protected Persons …Patients”
P fails to show for treatment intake appointment.
Is P even covered?
Y, “Patient” - sought or received services from
a treatment program
How can we protect program / P?
GET CONSENT & FAST
Consents
Criminal Justice System (CJS) consents
 Disclosure Permitted:
assessment & treatment is an official condition
of DTC participation
information is necessary to monitor treatment,
progress & compliance
 Disclosure Not Permitted:
if information will harm P
to law enforcement seeking to prosecute a separate
crime (unless consent specifically permits)
Reality Check
Is the consent really valid? Coercion in disguise?
1) D refuses to sign HIPPAA consent form
Can a program refuse treatment?
but
2) Can DTC refuse acceptance into DTC?
Confidentiality in Court
• Can we share, compare, exchange, disclose information?
• Court as theater, learning exercise
• Judge decides sharing information is a
“legitimate part of the court’s official duties &
responsibilities with respect to the criminal
proceedings”.
• Care in discussion of highly personal matters
• Minimum Necessary Information standard
(Need to know)
Recuse or Not?
The Saga of Terminated Terry
• 18 months in DTC
• absconded 2 times
• missed numerous treatment & supervision meetings
• submitted adulterated urines
• arrested for a drug offense
Should DTC judge recuse?
Recusal – Impartiality
CANON 2
A judge shall perform the duties of judicial office
impartially, competently, and diligently
RULE 2.11 Disqualification
A judge shall disqualify self in any proceeding in
which impartiality might reasonably be questioned
Recusal
DTC judge, as team member cannot function as a neutral and
detached hearing body for probation violations.
Tennessee v. Stewart, No. W2009-00980-CCA-R3-CD (2009)
But See:
Claim of bias and lack of impartiality based on Judge who is on the
team & questions P at hearings is unfounded.
Alexander v St 48 P3d 110 (Ok 2002)
Defendant needs concrete evidence that suggests judicial bias.
St v Tatlow, 231 Ariz 34 (2012)
Waiver:
P can voluntarily waive right to seek recusal
Wilkinson v State, 641 S.E. 2d 189 (Ga 2006)
Recusal Factors
Consider:
• evidence of bias
• harbor prejudice against P
• personal knowledge concerning a party, lawyer or disputed
evidence outside the record
• expressed opinion showing prejudgment
Kentucky v Harpring, No. 2004-CA-000898-MR. 8/12/05
BiasTest:
Would fully informed disinterested observer entertain
significant doubt about judge’s ability to fairly and impartially
judge the issues.
State v. Belyea, 999 A.2d 1080 (NH 2010)
Coercion & then some…
• Judge ordered Ds’ to attend his DWI School
In re Judge Rainaldi, No. 16559, 727 P.2d 70 (1986)
• Judge’s “sales pitch,” & pushing litigants into DTC by
stating “I could sentence you up to the maximum.”
NACDL
• J assessed probation fines in favor of "I Care" while on
its advisory council.
In re: Morvant 15 So. 3d 74; La (2009)
Misc Ethics Issues
• Judge referred D charged with drug distribution to
Family DTC. D’s boyfriend was personal friend of Judge
In re McBee, NM No. 29,265 (2006)
Sentencing judge sent money to convicted robber, allowed Ds to stay
at his residence, gave rides, ate lunch and visited with Ds in
chambers.
Jud Discipline & Disability Commission vs. Proctor, No. 09-738, 2010 Ark
• Broadcasting DTC or simulated proceedings in conjunction with a
for profit enterprise does not promote public confidence in the
integrity of the judiciary. Judge may not abuse the office for
personal gains.
Jud Discipline & Disability Commission vs. Gunn, No. 2010 Ark
Thank you
The Honorable Jamey H. Hueston
Jamey.hueston@courts.state.md.us
(410) 878-8556