Hon. Peggy Fulton Hora

Judge of the Superior Court of California (Ret.)

Ethical Issues in Adult Drug Treatment Courts

Prosecution Ethics

Jack McCoy, Law & Order

Protect and promote public safety

Cannot charge without PC (Model Rule 3.8)

Duty to dismiss weak case

Studies in AZ and CA found no evidence DAs were overcharging and, in fact, in DTCs, charges were being reduced to allow participation

Riley, J. et al., “Just Cause or Just Because? Prosecution and Plea-Bargaining Resulting in Prison Sentences on Low-Level Drug Charges in California and Arizona,” (2005)

Net Widening

Define:

Must adopt less punitive approach Soft on crime (‘hug a thug’) Conviction required or evidence lost Trained to put people in jail Misperception of link between mental illness & violence “Buy in” from prosecutor required for program success

Prosecution Issues

Defense Ethics

Yvonne Smith Segars, Esq., Public Defender of New Jersey

Effect of non-adversarial, collaborative approach in DTC (Key Component, 2) and MH Court (Essential Elements of a Mental Health Court, Element 8)

Adversarial nature of traditional criminal courts may be roadblock to open communication and a hindrance to recovery

Success of rehabbing drug offenders depends on believing tx is necessary

Lamparello, Adam, Comment & Note, Reaching Across Legal Boundaries: How Mediation Can Help the Criminal Law in

Adjudicating “Crimes of Addiction,” 16 OHIO St. J. on DISP. RESOL. 335, 335

Defense Issues

“Duty of zealous representation” of client C.f., reasonable diligence and competence in

ABA Model Rule 1.3; “devotion and courage” in advocacy in ABA (“Defense Function Guidelines”)

To competently represent client in DTC must familiarize self with tx, procedures, bases for sanctions or termination, etc. (Model Rule 1.1)

Duty of representation

Lawyers must educate themselves about drug court programs.

They cannot effectively advise their clients otherwise “To ignore the need to learn about the drug court

process is to ignore the evolution of the justice system” “For lawyers to do otherwise is for them to become legal

dinosaurs”

Smith v. State FL Ct.App. 4th Dist. 3/19/03

Mary Ann

Prostitution, petty theft, possession, DWI, vandalism

Long-term health problems (Hep C and cirrhosis)

Wants out today Doesn’t want to go to DTC “There’s nothing wrong with

me”

Use of TJ approaches “paternalistically” …when client ‘really needs psychological treatment or help’

Daicoff, supra.

Must guard against

Does it diminishes the role of the attorney? How is it different from explaining a plea

agreement? What is in the “best interests” of the client? What is an “informed decision” re:

representation (Model Rule 1.4) Balance client needs with “early and prompt

placement” in Key Component #3

Rhonda

Coming down from 3 day meth run

Falling asleep while interviewing

“It wasn’t my meth. I was holding for my boyfriend”

“I don’t care what happens. Just leave me alone”

Legal/cognitive competence of client to exercise options

Prone to relapse, AOD clients display denial, rationalization, resistance so who is making the decision - lawyer or client? (Model Rule 1.4, ABA Std Criminal Justice 4-5.1)

Current participant in DTC

Partied on the w/e Tested positive for

cocaine Swears it was a false

positive caused by dental work

Jennifer

Novocaine, Lidocaine, Xylocaine

COCAINE

Acquiesce to sanctions or “zealously” advocate for client?

Argue client’s position just in staffing or in court?

Therapeutic or anti-therapeutic effects of arguments and location?

“Whose team am I on anyway?”

Quinn, Mae C., Whose Team Am I on Anyway? Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. Rev. of L. & Soc. Change 37 (2000-2001).

Ex parte communication must be specifically waived or asserted (Model Code Judicial Conduct, Canon 3B(7))

Who is present at staffing? Is it ok to attend team meetings w/out client? How many levels of hearsay in staffing? Are 42 CFR waivers executed for everyone present?

Brown v. State, MD Ct of Appeal 5-18-09

Ex parte Communication

TJ and Judging

Hon. Melanie May, Justice of the Court of Appeals Florida

ETHICAL ISSUES ARISE FROM:

The collaborative nature of drug courts The increased personal relationship of the

judge to a drug court participant versus a “normal” criminal defendant

Direct contact between the judge and participant

The community advocacy role of the drug court judge

Judicial Issues

Remaining objective & impartial

Ensuring confidentiality, privacy, & dignity

Crafting appropriate sanctions

Developing a more personal, interactive style with defendants

Ted voluntarily withdrew from DTC

What to do with participant who dropped out? Hear case on regular docket? Recuse?

Duty to hear all cases Canon 3B(1)

Impartiality/bias or appearance Canon 3E(a)

“Punish” them for failing?

D pled possession of mj with intent to distribute Judge terminated D from drug court No prior felonies Sentence: Life Judge used ex parte communication and inadmissible

polygraph tests to determine sentence HELD?

Edmondson case

Trial court’s finding that judge committed “oppression in office” was not against the clear weight of the evidence nor contrary to law or established principles of equity

No judicial misconduct Specific to Oklahoma

Court on the Judiciary of Oklahoma, Appellate Division. State of OK, ex rel. W.A. Drew Edmondson,

Appellee v. Jerry L. Colclazier, District Judge Seminole Co., No. CJAD-01-2, June 14, 2002

Same DTC judge may preside over the case and hear probation violation hearing

Ford v. Kentucky, Ct. of Appeal, April30, 2010 State (NH) v. Belyea (May 20, 2010)

No Due Process violation

San Bernardino County (CA) sentences to aggravated term if fail out of drug court

People v. Loveless Ct.App. 3-9-09 and People v. Miller Ct. App. 3-24-09 said appropriate consideration to apply aggravated term

May increase sentence for “failure”

Graduations rates increased from 432% to 55% if the judge is the sole provider of rewards.

Carey, Shannon M., Ph.D., et al., “Exploring the Key Components of Durg Courts: A

Comparative Study of 18 Adult Drug Courts on Practices, Outcomes and Costs,” NPC

Research (March 2008)

The “judge would be appearing to be lending the prestige of judicial office to advance the private interests of the commercial interests involved.”

NY Opinion 02-77: Sept. 12, 2002

Incentives/Rewards

No ex parte communications except:         (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law to do so.

Ex parte communication Canon 3B(7)

ABA Rule 2.9(5)

Comment [4]         A judge may initiate, permit, or consider ex parte communications …when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.

Permissible to have ex parte communications at staffing with appropriate waivers and outside of drug court

Best practice to inform defense counsel of content and nature of communications

NY has specific administrative orders permitting such communication

NY Opinion 04-88: March 10, 2005, Advisory Committee on Judicial Ethics, NY State Unified Court

System

Ex parte staffing

Idaho Maryland Montana Minnesota New York Indiana Arkansas have all amended their Codes to specifically address and

permit ex parte communications in problem-solving courts including staffings

State judicial ethics amendments

Out-of-court contact with participants

Drug Court picnic

Bowling night

Matter of Blackman, 591A.2d1339 (N.J. 1991)“[J]udges who attends a public or social event will be

perceived as endorsing or supporting not only the event itself but also persons associated with the event.”

In re Jones, 581 N.W.2d 876 (Neb. 1998)Canon 1 and Canon 2 violation to meet individually with

probationers.

Judicial discipline

Out-of-court contact

Jogging with juveniles Community service

project to jog with judge Non-participants may

wonder if they will get worse treatment if they don’t participate

Could affect impartiality

Fundraising

Rubber chicken dinner (Attend? Speak?) Wine auction (Auctioneer?) Grant application (governmental or private?) Appear before local board of supervisors, state

legislators, Congress re: funding? Write letter in support of legislation? Bake sale? Honoree at the Friends of the Overshoe County Drug

Treatment Court at $150/plate?

…for the Court

Bd. Membership in 510(c)(3)

May not be an officer or director or help in any way the foundation used to solicit funds for the drug court

NY Opinion 97-83: Sept. 11, 1997

May participate as an applicant for grant funding 2002 OK Jud Eth2. Oklahoma Judicial Ethics Advisory Panel, Judicial Ethics Opinion No. 2002-2,

Jan. 25, 2002

May not solicit incentive gifts from lawyers 2007 Florida Supreme Court Judicial Ethics Advisory Committee

ABA Ethics Opinion 08-452 agreed with OK and FL

3.7 Permits solicitation for govt. entities and nonprofits concerned with admin of justice, etc. but only from family and other bench officers over whom you have no supervisorial position

1.2 “Act in a manner that promotes public confidence in impartiality and integrity…”

Duty to recuse if lawyer at the rubber chicken dinner appears before you? She bought a table of 10 and her firm was a Golden Sponsor. Next attorney bought 1-$150 ticket

ABA Model Code of Judicial Conduct

Judges in drug courts find themselves being urged to engage in efforts to raise private funding

No specific prohibition against fundraising for the court BUT 3.7 and 1.2 Judge is “well-advised” to take both the size and

importance of the contribution in deciding recusal ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 08-452

(Oct. 17, 2008)

ABA Opinion

May attend and receive an award at a dinner sponsored by a local not-for-profit organization that is a member of the drug court team

NY Opinion 01-33: April 18, 2002 Advisory Committee on Judicial Ethics. NY State Unified Court

System

May not sit on the Board of tx facility that serves drug court

NY Opinion 98-10: March 12, 1998

May sit on Board that develops job skills NY Opinion 88-121: Oct. 17, 1988

Community Service

Attending 12-Step or visiting tx facilities Ride along on probation checks Receiving award by tx community

Other activities outside Court

Award by DV community?1.DV Courts are still adversarial2.Ct goal: to enhance victim safety and increase offender

accountability 3.D perceives judge more closely aligned with victim4.Appearance of impropriety?

NY Ethics Advisory Opinion 08-191

DV Courts

Violation of Due Process to allow team to deliberate/recommend disposition when statute vested authority in trial court

Judge delegated decision-making authority to the team

Tennessee v. Stewart, Ct. of Crim. Appeals at Nashville (10/6/08) 2008 Tenn. Crim. App. LEXIS 784

Team Approach

"I have no thoughts or opinions on what you should do, should you decide that [the defendant] should come back with no sanctions whatsoever, or if he should be revoked and dismissed from the program or anything between, I do not care what your opinion is. I trust your judgment."

Neither the transcript of the hearing nor the order reflect that the trial judge engaged in its own deliberation of the proper disposition of the case.

With whom does the final decision rest?

What is the reporting mechanism? Individual agency responsibilities Jurisdiction of the court

The Team Approach

Who’s driving the BUS?

Review your state’s Canons and Codes Check for any opinions specific to drug courts Ask for ethics opinions on issues of concern No court has ever found collaborative approach to be

illegal when approached properly Examine your own prejudices Preconceived notions, biases, and stereotypes about

people with AOD abuse and/or mental disorders can prevent fairness and impartiality toward those who have them

Avoiding Problems