Opinion
No. S1 02 Cr. 395 (JGK).
August 24, 2005
MEMORANDUM OPINION ORDER
By Order dated August 12, 2005, this Court has previously indicated that it has no objection to the Probation Department seeking the views of other judges who know defendant Stewart's past work in connection with the preparation of the Pre-Sentence Report, but that the issue was up to the Probation Department and that Probation Department must follow its usual procedures. By letter dated August 23, 2005, Ms. Stewart now requests the Court either to direct the Probation Department to make such contacts or otherwise approve an application that permits counsel for Ms. Stewart to make such contacts and permits judges to respond directly to counsel.
Both the Code of Conduct for United States Judges and the Code of Judicial Conduct that applies to New York State judges impose reasonable and understandable limitations on the conduct of judges in providing information in connection with sentencing. Canon 2(B) of the Code of Conduct for United States Judges provides, among other things that: "A judge should not lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness." The Commentary to Canon 2B provides explicitly: "The testimony of a judge as a character witness injects the prestige of the judicial office into the proceeding in which the judge testifies and may be misunderstood to be an official testimonial. This Canon, however, does not afford the judge a privilege against testifying in response to an official summons. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness." The Commentary goes on to provide explicitly: "A judge should be sensitive to possible abuse of the prestige of office. A judge should not initiate the communication of information to a sentencing judge or a probation or corrections officer but may provide to such persons information in response to a formal request."
The Code of Judicial Conduct for New York State judges has similar provisions. Canon 2(C) provides in part that a "judge shall not testify voluntarily as a character witness." The Commentary to Canon 2(B) provides that "a judge must not initiate the communication of information to a sentencing judge or a probation or corrections officer but may provide to such persons information for the record in response to a formal request." The Commentary to Canon 2(C) includes the following admonitions: "A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. . . . A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness."
Ms. Stewart's defense counsel represents that the Probation Department has declined to contact judges suggested by the defendant because that would be contrary to the Department's policy of not soliciting information from character witnesses. The defendant argues that this results in a denial of due process because she is prevented from presenting relevant information to the Court, and is inconsistent with 18 U.S.C. § 3661, which provides that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
The Canons reflect the reasonable limitations that apply to judges in providing character testimony, and particularly in providing information to be considered by another judge in connection with sentencing. There is no proffer from the defendant that any of the proposed judges have knowledge about the facts involved in the offenses in this case, or that the judges would present evidence other than character testimony about the defendant's professional conduct in other cases. That same type of testimony could, of course, be presented through the evidence submitted by other lawyers — both co-counsel and adversaries — as well as former clients and others in the community familiar with the defendant's work. The Canons reflect the understandable concern that the judge's office should not be used to obtain any special consideration.
It is also important that the Probation Department follow its normal procedures. If the Probation Department does not contact character witnesses for other defendants, then it should not do so in this case.
There is no restriction of the information that the Court will consider. The Court will consider all of the information provided by the parties and all such information should be provided to all other parties. There is no denial of due process. The defendant has ample opportunity to present character evidence through non-judicial testimonials. In any event, if the defendant believes that testimony from judges is necessary in connection with sentencing, the defendant can subpoena any judges for such testimonials.
SO ORDERED.