Ohio Judge Amy Salerno is under heat now for approaching and chastising a jury after they found the defendant (name protected for expunction purposes the defendant may pursue) Not Guilty of Assault and Disorderly Conduct. She told them “99% of the time the jury is correct. Now it’s 98%. You got this wrong.” One juror, feeling berated, burst into tears and another juror requested an escort home for safety reasons as the judge’s outburst was made in the midst of the alleged victim’s agitated family and friends. The judge further went on to state she would have her chance to get the defendant regardless of the jury’s verdict because he had other cases pending in her court (which were later dismissed by the prosecutor).
Here is what is wrong with this picture:
1. The Code of Conduct for U.S. Judges states in Canon 3: A judge shall perform the duties of the office fairly, impartially and diligently. It further states under Canon 3 A (3): A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses and lawyers. The official comment states, “The duty to be respectful includes the responsibility to avoid comment or behavior that could reasonably be interpreted as harassment, prejudice, or bias.” We all have opinions. The difference is the jury’s opinion is all that matters in a court of law. Just because a judge may disagree, this does not open the floodgates of a judge’s first amendment right to free speech. The judge is acting in an official capacity and the ethical rules prohibit a judge from engaging in behavior under the cloak of a robe that disrespects a jury’s verdict in any way. The jury’s verdict is law.
2. The Code of Conduct for U.S. Judges states in Canon 3 C (1) (a): A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned including: the judge has a personal bias or prejudice concerning a part, or personal knowledge of disputed evidentiary facts concerning the proceeding. Clearly, without even hearing the evidence in the defendant’s other cases- which were eventually dismissed, she had formed an opinion of guilt. One cannot make a proper verdict without the evidence. This is law school 101 for judges.
3. The Ohio Supreme Court (whom Judge Amy Salerno answers to) has its own more specific ethical canons. In Canon 3 B (10) it states on point: A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding. This is cut and dry. The appending caveat exists for judges to legally address juror misconduct issues. It certainly is not a license for judicial misconduct.
Thankfully the jurors in this case filed a complaint. The Ohio State Bar has now filed a complaint with the Ohio’s Supreme Court’s disciplinary board. Following the hearings, the Board of Commissioners on Grievances and Discipline will determine what if any punishment should occur from removal of the bench to loss of law license. This is more common than people realize and totally unacceptable. Last year it happened in Tarrant County, Texas. After a Not Guilty verdict on a DWI, visiting Judge Jerry D. Ray lashed out at jurors in a diatribe accusing them of deciding to “ignore the law and your oath” comparing the verdict to the O.J. Simpson trial. The presiding juror, an elementary school speech therapist, stated:
“It was horrible. He was horrible. I mean, we were absolutely chastised like children. Like we were total idiots.”
So how does this happen- and why? In all professions, there is a bell curve of performance. The problem is judges don’t answer to bell curves. They are in a unique position, in that their success isn’t measured by the strength of their abilities. This is further complicated by their professional isolation. Once in office, judges are independent. There are no checks or balances. They are rarely disciplined or admonished by state bars or state supreme courts for unethical or inappropriate behavior. As a matter of fact, in Texas the majority of the judicial complaint process is secret. Once they serve a term, they are rarely challenged at the polls due to an incumbent’s edge. A case in point, Judge Amy Salerno was elected in 2005. If she can’t control her temper and impropriety after ten years, the public has no reason to expect her to now or in the future.
As for isolation, you don’t have to learn how to play with the schoolchildren on the playground, or even understand schoolchildren, when you are the playground. It’s called the “God” complex. Lawyers are the first to tell you that a disproportionate amount of Federal judges (appointed for life) suffer this. One of the reasons why it is so rampant is because of how legally insurmountable it has become to have a federal judge impeached and thereby removed. As for accountability, rarely are judges ever reversed on appeal in today’s “tough on crime” world, where so many decisions are politically based. As for performance, judges don’t have to answer to a bell curve. They are the bell curve. For lawyers, those who are good do well. Those who are not, don’t and are forced to contend with the repercussions. Once judges get elected or appointed, they have no measuring scale because there is no need. Judges like Ohio Judge Amy Salerno don’t fear repercussions. They have been groomed to believe they are always right.
Does this apply to everyone? No. Recently, six judges retired from my county serving an aggregate 120+ years. A retirement reception was given by the defense bar in which each judge had the opportunity to make remarks. The old phrase of "we are what we think" gives a truthful window to the soul. What I discovered was the best two judges said basically the same thing. They emphasized kindness and doing things for the right reasons. Unlike Judge Salerno, they would never be caught chastising a jury. Moreover, those were the two (of the lot) that had the best work ethic. The only judge to receive a standing ovation (not one but two) remarked he agreed to serve as a temporary judge when the position came open and the local bar took a vote. That temporary position turned into 39 years and he serves the distinction as Texas’ longest tenured judge, a most beloved one.
These tidbits are insightful in that it makes sense to let lawyers (or those in the know as opposed to a general electorate) have some say in who serves on the bench. Ohio Judge Amy Salerno’s behavior cannot be categorized as a rookie mistake, yet she was reelected this fall despite the Ohio’s Supreme Court’s pending disciplinary case. Our administrative and appellate judges must do better in keeping the judges accountable, lest things spiral out of control like they did for Judge Amy Salerno and Judge Jerry D. Ray. The unacceptable actions of these judges only weaken the public’s confidence in our judicial system. The Judge Amy Salerno YouTube video (above) has her chastising citizens accused before they are convicted. The best judges in my experience are the ones who focus on good just as much as they try to right wrongs. They know people make mistakes. They know encouragement breeds change, hope and positivity. They know when discipline is necessary: “Just a spoonful of sugar, makes the medicine go down... in the most delightful way. “