Judging Facebook relationships

Should jurists hear cases involving their 'friends'?

FROM: http://www.mcall.com/news/local/watchdog/mc-watchdog-judges-facebook-20120114,0,2268523,full.column

Paul Muschick

The Watchdog

10:25 PM EST, January 14, 2012

What is and isn't an appropriate use of Facebook and other social media usually is for the court of public opinion to decide.

But this week in Philadelphia, the question will be decided in a court of law.

Prosecutors want Philadelphia municipal court Judge Charles Hayden to recuse himself from hearing the drunken-driving case of state Rep. Cherelle Parker of Philadelphia because they are friends on Facebook.

Hayden has refused, and a hearing is scheduled for Tuesday.

The matter isn't the first and won't be the last time a Pennsylvania judge's credibility has been questioned because of social media. This case, though, is higher profile because Hayden already has ruled in Parker's favor in a key decision by suppressing some of the evidence against her.

Judges should be reining in their use of Facebook because as dispensers of justice, they must avoid conflicts of interest and the appearance of impropriety. Even a superficial Facebook relationship can create that appearance.

"If it comes out in the course of a trial that that judge has friended one side or the other or one attorney or the other … it can create the perception that there is a relationship," said Lynn Marks, executive director of Pennsylvanians for Modern Courts, a nonpartisan nonprofit seeking to reform the court system.

While a state judicial committee is studying the issue as part of a broader ethics review, some judges already are doing what they can to avoid getting tangled in sticky Web issues.

"I defriended just about everybody on my Facebook," Northampton County Judge Emil Giordano said.

Dumping about 150 people wasn't easy, considering that unlike many Facebook users, he actually knows a lot of the people he was Facebook friends with, including lawyers. He wanted to avoid questions about his impartiality should those lawyers have cases before him.

"I think it makes people uncomfortable," Giordano said.

New Allentown District Judge Michael D'Amore is aware, too. In a recent article in The Morning Call, he said he's had to change how he uses Facebook "and delete and stop posting certain things and be careful with the things I do post."

Giordano said he knows of two other Northampton County judges who are on Facebook.

In Lehigh County, President Judge Carol McGinley told me she surveyed judges at a recent lunch and none of those in attendance, which was almost the entire bench, uses Facebook.

She said there are no county court rules against judges using Facebook, but she believes "it's a risky thing for a judge to do."

"It provides accessibility to the judge by people who shouldn't for one reason or another be able to access the judge," she said. "It risks the appearance and the reality of impartiality through inadvertent contact."

Lehigh County Judge Edward D. Reibman is among the non-users. He is ethics committee chairman of the Pennsylvania Conference of State Trial Judges.

Reibman said no judge has asked the committee about social media issues, but the committee has invited a social media expert to explain how Facebook and similar venues work, and what judges might want to consider before using them.

He seconded Giordano's concern about judges having Facebook friendships with lawyers because other lawyers could question those connections.

He said judges can head off potential questions by disclosing social media or other social relationships with lawyers as some already do if they are golfing or family friends. Some lawyers might be fine practicing before a judge they know has a connection with opposing counsel, while others may not.

"Every judge has friends who are lawyers." Reibman said. "They practiced law with them, they were former associates."

The question becomes what, if anything, must be done if there is even a tenuous connection.

In the Philadelphia case, Hayden ruled there was no reason to recuse himself just because he is a Facebook friend of Parker. He said the situation is no different than if he and the representative attended the same church.

"The underlying issues are the same as they have been from the beginning of our courts," Hayden wrote in a November opinion. "We just have to use our critical thinking skills and common sense instead of getting hung up in the technology. How well do you know the person? Do you interact with them often? Do you consider them a friend?"

Parker's attorney has said the two do not know each other offline, according to The Philadelphia Inquirer.

Hayden agreed to a request from Parker's lawyer to suppress evidence from the traffic stop. Hayden questioned the officers' ability to determine whether Parker was intoxicated and if there was probable cause to arrest her, according to court records.

Police stopped Parker at 12:18 a.m. April 30 after seeing her state-issued vehicle swerving and traveling the wrong way on a one-way street, court records say.

The attorney general's office is prosecuting the case. In its appeal to Philadelphia common pleas court, the attorney general's office says Hayden should recuse himself because his Facebook relationship with Parker "creates an appearance of impropriety and undermines public confidence in the judiciary."

That impropriety is "amplified" by Hayden's ruling against the arresting officers, which was based on facts "wholly lacking in evidence," the appeal says.

"The 'Facebook friendship' … in combination with the court's unsupported factual findings, raise a substantial doubt as to the jurist's ability to preside impartially," the appeal says.

The attorney general's office is prosecuting instead of the Philadelphia district attorney's office because the Web relationships in this case are even more tangled. The DA is Facebook and real-life friends with Parker and pulled his office off the case.

More details about this and another case in Cumberland County are on my blog at http://blogs.mcall.com/watchdog/. I will update the blog later with the results of Tuesday's hearing.

The Watchdog is published Thursdays and Sundays. Contact me by email at watchdog@mcall.com, by phone at 610-841-2364 (ADOG), by fax at 610-820-6693, or by mail at The Morning Call, 101 N. Sixth St., Allentown, PA, 18101. Follow me on Twitter at mcwatchdog and on Facebook at Morning Call Watchdog.

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