Dreyer: Judges: To text or not to text?

“Many of us go through our days attending to multiple stimuli simultaneously without giving any one thing our full and complete attention. We eat while watching TV and check our email while in the presence of our families.” -Lane Pederson, psychologist

NEWS ITEM: Oklahoma judge resigns after texting on the bench more than 500 times to a bailiff during a murder trial. “I texted during a trial,” she said after submitting her resignation. “It doesn’t matter whether it was a traffic case … or a first-degree murder case. I texted during a trial and that was inappropriate.”

Most of us, lawyers and judges alike, were struck by the recent case in which a judge resigned after facing disciplinary action for, well, what we all are doing: multitasking on the job. OK, sure, she texted 500 times (I am sure my millennial daughter did that during any one of a number of days in high school) and she made fun of everybody in the courtroom (what judge or litigator hasn’t thought of this at some point in one’s career?). But in fact, the original disciplinary petition numbers 36 pages and includes all kinds of un-judgelike behavior. It was not just that she sent 500 texts about physical attributes of male attorneys, showed bias for the defendant, discussed what court instructions would benefit the defendant and ridiculed prosecutors. She also perused Facebook, used phone apps and told police officers off the record that the defendant should be found not guilty. After some publicity about her cellphone use during trial, she moved the court video camera and placed a black box to block sight of the phone. In addition, she was cited for conduct in several other cases involving ex parte communications, extensive Facebook activity, and repeated interactions showing bias against prosecutors and witnesses. The most unique allegation recounted how the judge required attorneys to pose for pictures in her chambers with hot pink chairs and posted the photos in court office areas. No wonder the judge resigned before those exhibits could be introduced. The disciplinary charges claimed judicial conduct violations of most of Canons 1, 2 and 3, which is 75% of the whole code, and Oklahoma constitutional violations for gross neglect, gross partiality and “oppression in office.” In large part, the Oklahoma judge’s conduct was attacked for lacking competence, impartiality, decorum and creating conflicts of interest.

But what should we judges take from all this? Can we never text or email on the bench? Are we prohibited from sending our spouse a Valentine’s Day email, or reminding our court staff to print out next week’s calendar? In all candor, I have rarely conducted a jury trial without emailing personal and work-related emails during whole day sessions. If my time and caseload would benefit from taking some briefs from other cases to review on the bench, sometimes I did. Daydreaming is presumably exempt from discipline. Unsurprisingly, there are no public cases in Indiana or elsewhere about the narrow issue of just texting itself, or emailing, from the bench. Some past cases involving such media and judicial conduct include sexual affairs with witnesses and related texts from the bench (Michigan, 2014), or judicial intimacy with court staff by using emails and texts on the bench including court computers (California, 2014). Adrienne Meiring, the executive director of the Indiana Office of Judicial Administration, Judicial and Attorney Regulation, when asked about sending texts or emails on court-related matters, says, “Judges are often faced with needing to multitask to perform the job.” We judges may be able to multitask without running afoul of the code unless we “become overly distracted by tending to other matters while presiding over a jury trial (e.g., not being able to rule on a crucial objection).”

But Cynthia Gray, director emeritus of the Center for Judicial Ethics at the National Center for State Courts and a longtime national ethics expert, advises that some examples may have worse effects than intended. “Paying attention to court proceedings is an obvious part of a judge’s duty,” she says, and multitasking on the bench may be perceived as violating code requirements to be courteous and diligent. She warns, “It is not unreasonable for attorneys, parties, jurors and the public to speculate that the judge is doing something less benign than reading a brief in another case or looking up the weather when they are engrossed in their computer or phone rather than what is happening in the courtroom.”

So by themselves, texting and emailing on the bench may be code compliant as long as used reasonably and prudently. Those conditions were unknown to the Oklahoma judge. As code violations, texting and emailing appear to be the means to the end — that is, the way in which a judge is being, or appears, incompetent, discourteous or biased. But beware, judges, that texting or emailing on the bench can lead to a wayward path. For example, what is the difference between writing a letter to a friend on the bench and emailing him or her? Obviously, it is the keyboard. Writing is consistent with paying attention. People assume keyboards are for something else. The medium is the message. So, judges, using one’s computer to take trial notes may cause unnecessary concern. Instead, Adrienne Meiring wisely advises, “If you’re using your keyboard or phone to take notes, let the jury know that — ahead of time — to avoid giving court observers the wrong impression.”

Now I wonder what attorneys are doing on their keyboards … ?•

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Senior Judge David J. Dreyer presided as a judge of the Marion Superior Court from 1997-2020. He is a graduate of the University of Notre Dame and Notre Dame Law School and a former board member of the Indiana Judges Association. Opinions expressed are those of the author.