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Thursday, October 30, 2014

Judges: Don't Be Afraid to Give Out Candy on Halloween

From Texas Supreme Court Justice Don Willett's wonderful Twitter feed, I learned about this entry in the American Judges Association Blog. It reports on this 2013 story from the Milwaukee, Wisconsin Journal Sentinel. From the article:

Jimmie C. Green, 31, was convicted of a 2009 drive-by gang shooting in Racine that killed a 12-year-old boy. As part of of his appeal, he claimed he might have been prejudiced by the trial judge passing some leftover Halloween candy to the jury.
More specifically, Green claimed his attorney was deficient for not moving for a mistrial when he learned that the jury had sent a thank-you note to the judge for the candy. 
"Green argues that this indirect contact may have caused the jury 'to view Mr. Green’s case as a ‘we vs. them’ matter,' especially given the gang-related evidence," the court wrote in a per curiam decision
. . .

Apparently, the judge had given the candy to the bailiff to give the jury, not intending for jurors to know where it came from. But the bailiff mentioned the treats were courtesy of the judge. 
"The record demonstrates that the trial court was well aware of the prohibition against ex parte communication with the jury and avoided any direct contact," the appeals court found. "There is nothing improper about a neutral body providing leftover candy to the jury through the bailiff."
Unfortunately, this case says nothing about judges providing attorneys with Halloween candy. But if a judge were to provide candy to attorneys on all sides of the case he or she was presiding over, I suspect that this evenhanded treatment would avoid any appearance of bias.

Moreover, a quick perusal of the California Code of Judicial Ethics reveals numerous mentions of gifts, but the Code notes that "gifts" are defined as things "of value." If you were to ask me, this would clearly apply to candy, but an ethics board might not share my priorities. Moreover, the Code of Judicial Ethics places numerous restrictions on judges' receipt of gifts, but there seems to be a  lack of discussion regarding judges' giving gifts. So it appears that my candy recommendation may survive ethical scrutiny.

So judges, feel free to give candy to attorneys as well as jurors! At the very least, this practice may result in some interesting judicial ethics test cases.

CONFLICT OF INTEREST ALERT

The author of this post frequently appears in court in front of judges who, if they were to follow the author's recommendations, would give candy to the author. Therefore, the claims and recommendations in this post should at least be taken with a grain of salt -- and it may be even more prudent to regard every claim in this post as entirely untrue.

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