Once again – the line between social media and the law can become a blur

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Once again – the line between social media and the law can become a blur

The New Mexico Supreme Court is warning judges about the dangers of social media in an opinion that however sidesteps whether the trial judge’s Facebook posts indicated bias.  THE ABA Journal report the New Mexico Supreme Court ruled recently that Truett Thomas was entitled to a new trial on a murder charge because the judge improperly allowed Skype testimony of a prosecution witness.   The court said the Skype testimony violated Thomas’ right to “physical face-to-face confrontation” of the witness, who did not appear because of inconvenience. As a result of the Skype reversal, the court didn’t consider whether reversal was required because of the trial judge’s Facebook post. The judge had posted on his campaign website that a guilty verdict had been returned and, “Justice was served. Thank you for your prayers.”  However, the opinion cautioned judges “to avoid both impropriety and its appearance in their use of social media.”

“While we make no bright-line ban prohibiting judicial use of social media,” the opinion said, “we caution that ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety. Online comments are public comments, and a connection via an online social network is a visible relationship, regardless of the strength of the personal connection.”

The court agreed with an ABA ethics opinion that judicial campaign websites be maintained by campaign committees rather than the candidates.  “We clarify that a judge who is a candidate should post no personal messages on the pages of these campaign sites other than a statement regarding qualifications” the court said. The judge should not allow public comments to be posted on the campaign website, the court said, “and should engage in no dialogue, especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.” Judges should also use privacy settings to protect their online presence and should consider any statements posted online to be a public statement, the court said. Concerns raised by social media include the inability to truly delete a posted message, the public perception that friendships exist between people who are not actually acquainted, and the ease with which posts can be widely disseminated.

Here in Florida, there is more of a bright line of what judges and attorneys can do in social media. On Nov. 17, 2009, the Florida Supreme Court Judicial Ethics Advisory Committee firmly stated “no” when answering the following question:

Whether a judge may add lawyers who appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”

In reaching this conclusion, the advisory committee determined that to allow “friending” between a judge and attorney would compromise the court’s neutrality and may convey the impression that the attorney is in a special position to influence the judge. To act in this manner would be in direct contravention of Canon 2B of the code of conduct for United States judges. The opinion notes that while judges cannot entirely isolate themselves from the real world, “some restrictions upon a judge’s conduct are inherent in the office.”

Relying upon this ethics opinion, on Sept. 5, 2012, in Domville v. State of Florida, the District Court of Appeal of the State of Florida, ordered the recusal of a judge who was “friends” with a prosecutor assigned to a criminal case. Subsequently, on Jan. 16, 2013, the same court granted certification for appeal as to the following question:

Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that they could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?

Unfortunately, on Feb. 14, 2013, the Florida Supreme Court declined to exercise jurisdiction on the issue and denied review of the matter. However, the issue of perceived impartiality clearly goes on in Florida, including in the recent case of Chace v. Loisel, wherein the presiding judge sent a friend request to one of the litigants while the case was still pending. The referenced judge was subsequently disqualified from the matter by the appellate court.

What does all this mean?  It is vital for the judiciary to project impartiality, and even the perception of an inappropriate relationship jeopardizes the judicial process.

Source: http://www.abajournal.com/news/article/new_mexico_top_court_overturns_conviction_due_to_skype_testimony_warns_judg/?utm_source=internal&utm_medium=navigation&utm_campaign=most_read & http://www.law360.com/articles/529874/it-s-an-honor-to-be-your-friend-social-media-and-judges

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