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Thursday, Sept. 13, 2018 12:29 am

Federal judge may face inquiry

Removal from cases signals action, expert says

 Authorities won’t say what, if any, steps are being taken to determine whether a federal judge deserves punishment for conversing about a pending case with a paralegal in the U.S. attorney’s office.

U.S. District Court Judge Colin Bruce last month was removed from criminal cases after Illinois Times reported that the judge, while presiding over a 2016 kidnapping case, had criticized federal prosecutors and assessed chances of acquittal during an email exchange with Lisa Hopps, who was his paralegal before his appointment to the federal bench in 2013.

Bruce was removed from criminal cases by James Shadid, chief judge of the U.S. District Court for the Central District of Illinois. Under procedures published by the Seventh Circuit Court of Appeals based in Chicago, judges suspected of misconduct can be investigated by committees appointed by the chief judge of the appellate court, who is Judge Diane Wood. Based on committee findings, a council of judges can issue sanctions.

Chief judges need not wait to disclose the existence of investigative proceedings, according to rules governing investigations posted on the appellate court’s website: “A chief judge may disclose the existence of a proceeding under these rules when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.” Via an assistant, Wood declined to say whether an investigative proceeding has begun.

That’s not unusual, according to Charles Geyh, a professor at the Indiana University law school who is considered an expert on judicial ethics. Early in cases, judges ordinarily keep matters confidential in order to avoid impugning the reputations of colleagues, he said. But what’s known publicly in the Bruce matter suggests that the judge is facing an inquiry, Geyh said.

“For the chief judge to suspend the trial judge leads me to believe that something is going on from the disciplinary side,” Geyh said.

One day after Illinois Times broke the story and one day before he was removed from all criminal cases, Bruce last month recused himself from the kidnapping case while also defending himself, writing in his recusal order, “I consider the email exchange to be innocuous and merely a private email conversation with someone entirely uninvolved in this case.”

What a judge thinks may not matter, according to Geyh.

“Judges know not to engage in ex parte communications,” the law professor says. “I understand where the judge thinks he’s communicating privately. The reality is, don’t say in an email anything you wouldn’t be prepared to say in a deposition.”

Federal judges are appointed for life, although they can be impeached by Congress or removed from office if found guilty of a criminal offense. Otherwise, sanctions range from a reprimand to suspension from judicial duties for a set period of time, Geyh said.

The U.S. attorney’s office in May notified a lawyer for Sarah Nixon, defendant in the kidnapping case, that Bruce had discussed her case with Hopps outside court during trial. Nixon subsequently asked both Bruce and the appellate court that is considering her appeal to allow her to supplement the court record. Both requests were denied, as was a motion for a new trial that Nixon filed in Bruce’s court last month.

“To me, the open question is, assuming these ex parte communications occurred and are inappropriate and subject to reprimand, the 800-pound gorilla is, don’t we worry at least a little bit about the implications for the defendant’s case?” Geyh says. “Maybe not – it could be judged harmless error. But it sure is something you don’t want to see.”

Under federal rules, “improper discussions with parties or counsel for one side in a case” constitutes misconduct. But chief judges have discretion to dismiss cases and keep matters confidential if judicial misbehavior can be addressed on an informal basis. Ultimately, a council of judges decides whether a jurist has engaged in misconduct. “(A)n inadvertent, minor violation of any one of these rules, promptly remedied when called to the attention of the judge, might still be a violation but not rise t the level of misconduct under the statute,” the guide to judicial policy on the Seventh Circuit website states. “By contrast, a pattern of such violations of the code might well rise to the level of misconduct.”

The U.S. attorney’s office in Springfield has declined comment on the Bruce case, refusing to answer when asked what steps, if any, have been taken to determine whether the judge’s 2016 correspondence with Hopps was an isolated instance or whether the judge may have engaged in ex parte communications with office employees in other matters.

Contact Bruce Rushton at brushton@illinoistimes.com.

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