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Anita Ramasastry

Why the Judge in the Casey Anthony Trial Was Right to Recuse Himself Due to His Remarks to a Blogger


Thursday, May 6, 2010

Last month, Judge Stan Strickland recused himself from presiding over the Florida state criminal trial of Casey Anthony. As readers are likely aware, Casey Anthony is charged with killing her two-year-old daughter, Caylee -- whose remains were found near the family home in December 2008. The controversial trial is set to begin sometime next year.

Judge Strickland's recusal was prompted by a motion by Casey's defense attorney, Jose Baez. The motion took issue with the judge's brief remarks to, and about, blogger David Knechel, aka "David Marinade," who is covering the trial.

As it turns out, the judge's comments were minimal and probably fairly innocuous – but given the nature of the blogosphere and the low threshold set by Florida's recusal standard, the judge likely made the right decision in stepping down.

This is just one example of the ways in which judges and lawyers are currently grappling with the role that technology and social networking should play in their work and in their lives.  As I explained in a prior column, Florida also was in the spotlight on such issues when it told judges that they could not ethically have lawyers as Facebook friends. 

The Casey Anthony trial blogger incident is yet another example of the kinds of new ethical dilemmas that are arising in this area.

The Judge and the Blogger

In his recusal decision, Judge Strickland noted that he had begun reading blogs about the Casey Anthony case in order to help him decide whether he should grant the defense's change-of-venue motion.  The defense contends that the trial should be moved out of Orlando because of the excessive and -- the defense says -- prejudicial media coverage there. 

The judge's decision to read the blogs is, in itself, potentially disturbing, unless all counsel consented to it.  Judges are not supposed to do outside research, beyond the submissions of attorneys on a particular question.  That's because each side is entitled to know about all the materials the judge has considered in making his decision, so that each side can make a fully-informed and effective argument to the judge regarding the weight and relevance (or lack thereof) of those materials.  (Counsel could properly submit screen-shots of blogs' webpages in support of a change-of-venue motion, however, since then each side would know exactly what materials the judge had seen and would have the ability to address them.)   

Defense attorney Baez alleged that Judge Strickland also called blogger Knechel to inquire about his health, and that the judge did not disclose this apparently personal relationship with Knechel to the defense. (Note: This alleged phone call was not discussed in the Judge's recusal order and has not been further confirmed). Baez also alleged that Judge Strickland recognized Knechel at a court hearing, summoned him to the bench, and spoke to him.

The judge conceded that he did talk to the blogger in court.  Indeed, he could hardly have denied it, as there was a TV camera rolling, microphones were on, and the conversation took place in front of the attorneys.  Part of the conversation was caught on audio; Knechel says that people are reading his blog because he does a "good job, very simple."  Judge Strickland remarks that Knechel had "admonished and frequently chastised those who came onto his blog for the sole purpose of bashing the defendant and her family."   He also thanks Knechel for being "fair and civilized." 

The defense disagreed with the blog's fairness and pointed out that, in fact, Knechel has posted remarks such as "Casey Anthony must die!" "Caylee's murder: Premeditated and pretty stupid too" and "Guilty as charged" on his blog.  But perhaps those comments were not on the blog on the days when the judge visited it, or perhaps the judge did not consider those comments to be in the realm of those he considered to be "bashing" the defendant and her family, as opposed to simply expressing an opinion on the case. 

Judicial Ethics and the Blogosphere:  Did Judge Strickland Violate Florida Ethics Rules?

Did Judge Strickland violate Florida's judicial ethics rules by communicating with the blogger in court ? 

Canon 3 of the Florida Judicial Code of Ethics states that a judge shall perform the duties of judicial office impartially and diligently.  Even the appearance of partiality or favoritism is a problem:  Judges need to tread lightly to avoid perceived conflicts or partisan views.  

Moreover, in Florida, a judge is required to recuse himself or herself from a trial if the recusal motion has a legally-sufficient basis.  Here, moreover, "legally-sufficient" has been interpreted to mean that the motion by the party seeking recusal demonstrates a good-faith belief that that party is not going a receive a fair trial. 

As commentators have noted, Florida has thus set a low threshold for recusal – perhaps too low.  Judge Strickland reportedly has a reputation for being competent and fair.   Moreover, one could argue that Judge Strickland's comments were brief and that their content – allegedly sending a get-well wish, and complimenting Knechel's impartiality -- was relatively innocuous.  The judge himself described the content of his words as "unremarkable," and noted that they were uttered in open court for all to hear. 

Still, blogs do often indicate a viewpoint – and surely, the judge would have been better off remaining silent, rather than indicating any preference or opinion at all about a  particular blog or blogger.

Ironically, Judges Themselves May Ethically Blog Under Some Circumstances

Oddly enough, in the future Judge Strickland himself might be able to become a blogger, if he so chooses.  Florida has not yet ruled on the issue, but other states are permitting their judges to blog. 

For instance, in November 2009, the State of Washington published an ethics opinion to this effect. The Washington Judicial Ethics Advisory Committee noted that "[t]he Code of Judicial Conduct does not specifically prohibit a judge from blogging on the Internet," but it also added a word of caution: 

Even though a judicial officer may post a blog on the internet, caution should be exercised as to how that blog is used and comments responded to in order to make sure that the judicial officer's impartiality is not called into question or the action does not impair the judicial officer's ability to decide impartiality issues that come before the judicial officer.  For instance, the judicial officer should consider the impression that may be conveyed when responding to comments that are posted on the blog and how to tailor those comments to avoid any impression that the judicial officer's impartiality might be called into question. The judicial officer should also consider whether readers might perceive that the judge's impartiality is impaired by the volume and content of the comments received.
In time, we will surely have a better sense as to what will -- or will not -- cause the appearance of judges' partiality in cyberspace and, in particular, in the blogosphere.  For now, Judge Strickland was wise to take a safe route – and other judges may be wise to take heed of his examples and keep their blog preferences out of the public eye.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column are solely those of Ramasastry in her personal capacity anddo not necessarily represent the views of any of her employers, past or present.

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