O’Connor said she opposes the election of judges, and she believes the practice may create a misunderstanding of the role of a judge.
“I think there are many who think of judges as politicians in robes. In many states, that’s what they are,” she said.
People should expect a judge to rule on legal issues in a fair and unbiased way, but she said many people seem to think that judges are supposed to be a reflection of popular opinion, O’Connor said.
“They seem to think judges should be a reflex of the popular will,” she said.
Judges “need to turn a high-power lens on themselves” to avoid bias or the perception of bias as they consider legal issues and make decisions, she said. There are cases in which a judge should recuse himself or herself, O’Connor added.
“You don’t want to hear a case if your husband is arguing it,” she said with a laugh.
But cases in which judges must be on guard against bias are not always that clear-cut, O’Connor said. “These are easy cases. But almost all real cases are hard,” she said.
O’Connor advised judges to be extra vigilant against bias or the perception of it. “They need to avoid sitting on cases if even a whiff of bias can be detected,” she said.
One way to maintain fairness is to be open to hearing diverse opinions and not keep their chambers “as echo chambers” of their own opinions, O’Connor said. They also need to keep open minds to all sides of a legal argument, she said.
As a federal judge O’Connor said she made sure to hire law clerks from diverse backgrounds.
“It allowed me to be sure I was getting a broad mix of advice,” she said.
In an understatement, the Commission's executive director tells the Indiana Lawyer that free speech of attorneys in Indiana is "more regulated." “We’re in a position where our speech is held to a higher standard because of the impact of that speech,” Witte said. “Even outside of lawyer discipline, free speech is not absolute.” IU Law Professor Margaret Tarkington has the better, more constitutional view.
Tarkington describes Model Rule of Professional Conduct 8.2 as “a trap for lawyers” in an article by that title published in the Association of American Law Schools Professional Responsibility Newsletter. She said the rule incorporates the Supreme Court of the United States standard of New York Times v. Sullivan 376 U.S. 254 (1964), that speech regarding a public official is protected unless it is made with actual malice – knowledge that it was false or with reckless disregard of whether it was false. Indiana’s Rule 8.2 also follows the Sullivan line of cases, forbidding attorneys from statements about judicial officials “the lawyer knows to be false or with reckless disregard as to its truth or falsity.”
“The vast majority of states interpret that rule as applied to the judiciary to mean something very different,” Tarkington said. The standard for attorneys commenting on the judiciary she said is closer to, “If you say it, you’d better be able to prove it, which is not what the rule says, and it’s probably unconstitutional.
“It’s almost as far away from a Sullivan standard as you can get,” she said, noting it’s not unusual for attorneys to be disciplined for judicial criticism. Tarkington’s article, “The Truth Be Damned,” published in the 2009 Georgetown Law Journal, reviews numerous instances of such discipline.
Provided details of the complaint against Ogden stemming from the email, Tarkington said it’s important that the context wasn’t in a judicial proceeding where the truth-seeking function of the justice system requires a higher level of accuracy in attorney statements.
“He didn’t even put it on his blog,” Tarkington said. “An attorney should be able to talk about the judiciary in an email.”
Tarkington argues that disciplining attorneys for speech presents dangers. “We have an elected judiciary and lawyers are the ones who know the most about how a judge acts, and (lawyers) best know the law that judges are supposed to follow,” she said. “The problem is you’ve silenced all the people with knowledge.
“You’re basically shielding the judiciary from effective criticism by the people who know,” Tarkington said, “and I think that’s a really big problem.”
In the Indiana case, a lawyer was suspended from practice for criticizing the opinion of the lower appellate court for being result-oriented. The criticism took the form of the following footnote in the appellate brief: "Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for appellee . . . and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision)."
The decision of the Supreme Court to suspend the lawyer was based on a 3–2 vote, with the deciding vote having been cast by one of the justices who was himself criticized in the footnote. That justice had been promoted from the Court of Appeals to the Indiana Supreme Court and did not recuse himself from the disciplinary case even though he was one of the victims of the "offending" footnote.(The justice has since recused himself from the rehearing petition, but that does not withdraw his vote from the disciplinary action.)
Two justices of the Indiana Supreme Court dissented from the disciplinary decision, arguing that the footnote in question contained "rhetorical hyperbole" that was protected by the First Amendment. One of the dissenting justices pointed out that judges commonly attack their colleagues on the bench with similar hyperbole, citing particularly opinions by Justice Antonin Scalia, who is well known for his personal attacks on the integrity and rationality of his fellow justices. The majority decided to impose the relatively harsh sanction of suspension because the lawyer in question "chose to contest this matter," presumably instead of simply rolling over and admitting he was wrong.
It is not surprising to me that this Stalinist decision—punishing a lawyer for expressing a critical opinion and then justifying the punishment because he didn't seem duly remorseful—was rendered by the Supreme Court of Indiana. I have argued cases all over the world, and I have never encountered a legal system as result-oriented as that of Indiana or a chief justice as self-protective as Chief Justice Randall Shepard (who joined the majority in disciplining the lawyer). When I agreed to argue the rape-conviction appeal in Indiana for former heavyweight champion Mike Tyson several years ago, I was warned by several members of the bar about the Indiana court system. Then I experienced it firsthand.
While attending a multiclass Yale Law School reunion, a woman approached me and told me that New York lawyers' arguments don't go over well in Indiana. I asked her who she was, and she told me she was the wife of the chief justice, who had graduated from Yale several years after I had. I immediately ended the conversation and walked away telling her that any further discussion would be inappropriate. (This encounter was attested to by an affidavit from a witness.) Shortly thereafter, Justice Shepard recused himself (he gave no reason at the time), and the eventual decision in the case was a 2–2 tie, which resulted in Tyson's conviction being affirmed. In an opinion offered roughly a year later regarding his recusal, Justice Shepard stated that he opted to recuse himself before the Court of Appeals ruled on Tyson's appeal in order to demonstrate that his "recusal was not outcome-driven."
Our research disclosed that Justice Shepard had written several opinions that, if followed, would probably have led him to rule in our favor. But in the opinion of several Indiana lawyers familiar with Judge Shepard's rulings who were consulted at the time, he might not have wanted to cast the deciding vote in favor of an accused rapist because of controversial accusations made about him by a fellow judge who was running against him several years earlier. According to the National Law Journal, "Fellow Justice Alfred J. Pivarnik . . . accused [Shepard] of having abused alcohol, smoked marijuana, and made sexual advances toward men."
Justice Shepard denied the accusations, and although he won the election and no formal charges were brought against him, it was the opinion of the Indiana lawyers our team consulted that Shepard may have been concerned about these issues resurfacing if his vote was decisive in the Tyson appeal. There is no evidence that Justice Shepard deliberately sent his wife over to me to provoke a recusal. I do not know. But I do know that Shepard's recusal protected him from a potentially damaging public controversy.
It is always systems most deserving of criticism that impose limitations on the freedom to criticize. There is an old joke about a dissident who called Stalin corrupt. He was accused not of slander but of revealing a state secret. That is essentially what the Indiana lawyer has been convicted of—namely exposing the flaws of the Indiana judicial system.
Were I a member of the Indiana bar, I could not offer my opinion about Justice Shepard without fear of judicial reprisal. Fortunately, I am a member of the bar of Massachusetts, where the First Amendment still means something. Because I am not subject to the censorship of the Indiana courts, I feel a special obligation to speak about what I experienced when I argued a case in that jurisdiction—despite what some may characterize as sour grapes. But the question remains: Will freedom of speech for lawyers, inside and outside Indiana, remain vibrant after the current Supreme Court majority—which was shell-shocked by the vituperativeness of the criticism directed at it following Bush v. Gore—has its crack at this important issue?Incidentally, Justice Alfred Pivarnik was never disciplined after he publicly accused Chief Justice Shepard of essentially being a pot-smoking, drunken homosexual in the incident described by Dershowitz. He later retired from the bench due to failing health.