"A judge should abstain from public comment about the merits of a pending proceeding in any state or federal court dealing with a case or controversy arising in North Carolina or addressing North Carolina law....." North Carolina Code of Judicial Conduct Canon 3A(6).
"A judge should avoid impropriety in all the judge's activities." North Carolina Code of Judicial Conduct Canon 2.
"A judge should perform the duties of the judge's office impartially and diligently." North Carolina Code of Judicial Conduct Canon 3.
So a North Carolina judge surely must not prejudge an issue in a North Carolina case (such as whether or not a grand juror violated the secrecy rule) or make prejudicial public statements with respect to the possibility of grand juror misconduct (such as violating the secrecy rule).
"I saw the interview that morning, and I think what the grand jurors did was clearly against the laws of the state of North Carolina," Judge Orlando F. Hudson, Jr. said. "The grand jury is to discuss nothing about what went on in the grand jury proceedings, nor anything about the grand jury proceedings."
Two former members of the grand jury that indicted three Duke lacrosse players could be charged with contempt for talking about the Duke case on ABC.
One admitted that, in hindsight, he would not have voted to indict.
The other stuck by his vote, but conceded that he had "new doubts."
With what, if anything, will Judge Hudson be charged?
It took from March 2006 to December 2006 for the North Carolina State Bar to act on Durham County, North Carolina District Attorney Michael B. Nifong's grossly prejudicial pretrial statements, but Senior Resident Superior Court Judge Hudson, who is black and helpfully conducted the swearing in ceremony for Mr. Nifong before the courthouse was opened to the public, was shocked to watch two Duke case grand jurors speaking on ABC about the Duke lacrosse case on Tuesday morning, February 6, 2007 and acted quickly.
"It was pretty clear to me that the jurors are in violation of North Carolina law," Hudson told WRAL the next day.
It was pretty clear to John Stevenson of The Herald-Sun that Judge Hudson was calling those two grand jurors law breakers: "Two grand jurors broke the law when they spoke about the Duke lacrosse case on national television this week, and they possibly could be penalized for contempt of court, Durham's senior judge said Wednesday."
NOTHING LIKE PREJUDGING AND MAKING PREJUDICIAL PUBLIC STATEMENTS, RIGHT, JUDGE HUDSON?
Is it a Durham thing?
"When grand jurors are sworn in, Hudson noted, they are given clear instructions regarding secrecy.
"The judge called the grand jury process the most sacred in the judicial system.
"'I'm thinking about doing something because it is a very serious violation of the court's orders,' Hudson explained."
HASN'T JUDGE HUDSON LEARNED ANYTHING FROM WHAT HAPPENED TO MR. NIFONG FOR ASSURING THE PUBLIC (ERRONEOUSLY, ALTHOUGH THAT'S IRRELEVANT TO THIS PURPOSE) THAT THERE HAD BEEN A RAPE?
It has not been properly determined that there was any violation of the court's orders, much less a serious one.
Was Judge Hudson trying to intimidate other Duke case grand jurors?
Is Judge Hudson now being investigated for what he said?
WRAL: "The judge would not talk about details about what he might do, but he said grand jurors who discuss a case can be charged with contempt of court, a misdemeanor offense that can carry up to 30 days in jail and a $500 fine."
What can (and will) be done to judges who prejudge and prejudice?
WRAL: "The two jurors did not show their faces during the interview. Hudson said that could make it difficult to identify them, but he said he could call in all the grand jurors from that session and put them under oath to find out who talked."
The two grand jurors were afraid to be identified, so Judge Hudson is pondering identifying them?
Is Judge Hudson going to guarantee their safety if he succeeds?
Model Code of Judicial Conduct Canon 2: "A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES."
Canon 2 is explained in pertinent part as follows:
"A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. Examples are the restrictions on judicial speech imposed by Sections 3(B)(9) and (10) that are indispensable to the maintenance of the integrity, impartiality, and independence of the judiciary.
Sections 3(B)(9) and (10):
"(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing....
"(10) A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."
How much damage will the North Carolina authorities allow the Duke Hoax to do to North Carolina's criminal justice system and themselves?
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.