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Friday, December 13, 2013

Ind. Courts - The Kimberly Brown Judicial Ethics Saga: Some Thoughts on Assessing Remorse and the Re-Election Process

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Judge Brown’s change of counsel and Wednesday’s filing of “Submission to Discipline in Lieu of Submission Findings” and supporting affidavits raises a number of interesting questions. This post focuses on two: (1) its impact, specifically, the difficulty of the special masters’ crediting Judge Brown’s remorse based on the late-inning paper documents, and (2) Judge Brown’s re-election prospects and the effect of her candidacy on Marion County’s “unique” judicial election process.

Too Late for Remorse (if that’s what it was)?

I probably saw as much of the hearing as anyone other than those involved in the proceedings (the special masters, the lawyers, the court reporter, and Judge Brown) and Judge Taliaferro’s husband (who I believe attended all of the proceedings). The Commission did an excellent job proving its case, and the special masters appeared quite receptive. Judge Brown’s counsel was not effective (that is the kindest terminology I can use), and the special masters were seemingly underwhelmed (also a charitable term for witness testimony and arguments that struck me as devoid of a coherent theme or purpose).

If nothing was filed on Judge Brown’s behalf, I would have expected the special masters to find misconduct on all or nearly all of the 47 counts. I would have expected a recommendation for a lengthy suspension or possibly removal from the bench.

It is difficult to know whether Wednesday’s filings by a new (and very capable) lawyer—expressing contrition and admitting conduct prejudicial to the administration of justice—change things. Judge Brown had been offered and refused earlier opportunities to resolve the proceedings and to seek help from JLAP. This new approach, adopted well after a grueling seven-day hearing and weeks before the special masters issue their report, may be seen by some as analogous to a criminal defendant who finds religion or a newfound desire to support dependents days before sentencing. Trial judges generally give little weight to what may be viewed as a tactical conversion.

More fundamentally, though, how are the special masters to assess whether the remorse is genuine? Remorse usually comes in a live court proceeding where the finder of fact observes the expression of remorse in the context of a proceeding. Here, the masters have only a carefully crafted written affidavit that came weeks after a hearing at which there was very little contrition. I suspect the video excerpt of Judge Brown refusing the oath at a deposition and her inability to offer a rational explanation for this behavior is seared in the special masters’ minds. It may be difficult for the affidavits from Judge Brown and Justice/Professor Sullivan to overcome this.

Moreover, even if the masters believe the remorse is genuine, again criminal law offers a useful analog about the significance of timing. Criminal defendants are generally offered a plea agreement early in the process and sometimes the morning of trial. Plea agreements may even come mid-trial, especially if one side panics about how things are going. Although Wednesday’s pleading is not a bilateral agreement (it’s a unilateral, general admission of fault), it comes very late in the proceeding. If criminal defendants who plead guilty are entitled to no mitigation because their plea came mid-trial after the State had to expend resources investigating and trying the case, Judge Brown’s post-hearing expression of remorse would seemingly not be entitled to much weight either.

As a final guiding principle, the Indiana Supreme Court has made clear that “judicial discipline proceedings are designed not simply to punish wrongdoing. Rather, they also help to ensure that judges are fit for judicial duty, restore public confidence in the administration of justice . . . .” We should know relatively soon if the special masters and ultimately the justices believe Judge Brown is fit for judicial duty and what a sixty day suspension would do to instill public confidence in the judiciary.

The Re-Election Process

Judge Brown’s term expires in 2014, and Wednesday’s filings strongly suggest that Judge Brown wants to remain on the bench for more than just the next year. What are her prospects for re-election?

The qualifications to run for Marion County judge are simply (1) Marion County residency and (2) admission to the Indiana bar for at least five years. Ind. Code § 33-33-49-6(b). A judge who has been disciplined or one who is under suspension at the time of filing for the primary and even at the time of the election itself may seek and secure re-election.

Presumably any day now, the Indianapolis Bar Association will conduct its poll of 2014 judicial candidates. If Judge Brown is included, she is unlikely to fare well, especially on the question: “This person is ethical.” Wednesday’s pleadings are an admission of recent and serious judicial misconduct. The poll, though, is of limited significance in the slating and election process. Judge Pierson-Treacy’s 30.7% approval rating for re-election did not affect her ability to get slated, and she received the third highest number of Democratic primary votes of the twelve Democratic candidates in the primary.

Will Judge Brown go through the Marion County Democratic Party slating process? She won the Democratic primary in 2008 by running against the slate. Her sister, Judge Linda Brown, did the same in 2006, but then sought and secured a position through slating in 2010. For all the flaws of slating, I suspect Judge Kimberly Brown would lose at slating. The Democrats require candidates to run for a specific slot, and Judge Brown would surely draw an opponent, unlike the other incumbent judges. The few hundred people involved in slating would know of the judicial ethics proceeding, and I suspect nearly any opponent would prevail.

If she is not slated, though, Judge Brown may well prevail in the primary (assuming she is not removed from the bench or ordered not to seek re-election). Very few Marion County voters know the names, much less anything about, judicial candidates in a primary or general election. Judge Brown previously ran against the slate and prevailed. She would again be first on the ballot (alphabetically), has a common name, and is a woman—all of which cut in her favor in an election in which voters know nothing about the candidates. The Democrats could spend a lot of money touting their slated candidates and even attacking Judge Brown, but I would still give her decent odds of winning, especially if the discipline is still pending or a relatively short suspension is ordered. She could tell voters the Indiana Supreme Court considered the matter and decided she should be given a second chance.

Posted by Marcia Oddi on December 13, 2013 03:03 PM
Posted to Schumm - Commentary