State of Washington

Ethics Advisory Committee

STATE OF WASHINGTON

ETHICS ADVISORY COMMITTEE

OPINION 14-05

Question

May a judicial officer permit a member of the court’s misdemeanant probation department to participate as a domestic violence high risk team member? If full participation is not permitted, could any ethical issues be cured by limiting the probation officer’s work with the team to only those cases that are being supervised on a post-conviction basis?

A local domestic violence victim’s advocacy group is asking the court to allow its probation department to participate in a community-based “DV Offender High-Risk Supervision Team,” which seeks to reduce the incidence of lethality among domestic violence victims.

The domestic violence high-risk team proposal is based on a model developed and implemented in another state and touted to be a highly successful program. According to the training materials, the model employs a multi-disciplinary team of core partners working in concert to increase victim safety by monitoring and containing offenders and providing comprehensive victim services. Three categories of “offenders” can be targeted for supervision by the team: those convicted of a case, those awaiting trial, and those who have not yet been charged with a crime.

The team will be composed of representatives from local victim services, law enforcement, the probation department, the prosecutor’s office, certified batterers’ intervention programs, the corrections department, social service agencies, and local hospitals. There is no representation of defense counsel or other stakeholders representing the rights of persons accused of domestic violence. Probation officers are viewed as key participants under the model. Persons will be targeted for supervision by the team based upon their perceived risk of committing future acts of violence by a risk assessment tool that is purported to identify cases with the greatest likelihood of re-assault and/or lethal attack. In their process the team shares and reviews information such as the risk assessment results, police reports (current case, as well as past ones, both in-and out-of-state), any past or current restraining orders, supporting affidavits, probation/parole reports, medical reports (if possible), pictures of injuries, factual-based timelines of the parties’ relationships (including past acts of violence), pending criminal charges, victim’s safety concerns, and domestic violence agency referral information. Once persons are targeted, the team develops individualized intervention plans designed to interrupt the cycle of escalating violence and minimize the risk of further abuse by the targeted person, and provide better options and support of victims. Monitoring by the team will involve sharing the targeted person’s case and personal information among team members. Action will be taken to help close system gaps to better ensure that the most dangerous cases are comprehensively and strategically addressed by team members.

If a person has been charged with a crime they are processed as in any other case in court. The court does not have a specialized therapeutic court into which defendants have opted, so there are no procedures in place under which defendants can waive their rights in the pretrial context. The accused person does not agree to participation by the team. Some of the persons that are tracked by this team have not been charged with a crime. Of those charged, there will be defendants supervised both before trial and post-conviction. Those persons targeted by the team may or may not know they have been targeted for supervision by the team.

Given the array of case types, there will be team discussions ranging from charging decision-making to sentencing recommendations. The team’s probation officers will be asked to enhance their supervision of the targeted persons, seek additional pre-trial release or probation conditions, and/or seek immediate court sanctions for violations of probation or pre-trial-release conditions.

Answer

CJC 1.2 in pertinent part imposes on judicial officers the requirement that they act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. CJC 2.9(D) provides in pertinent part that judicial officers make reasonable efforts, including appropriate supervision, to ensure that court staff, subject to their direction and control, do not violate the prohibition against ex parte communication. Finally, CJC 2.12 requires that judicial officers ensure that court staff who are subject to the judge’s direction and control act in a manner consistent with the judicial officer’s obligations under the Code.

The team seeks to be involved with persons suspected of domestic violence at three different stages. The first two stages are problematic (with one exception below) because they involve situations where a person has not been charged with a crime or the person is awaiting trial on criminal charges. The exception is when a defendant has been to court and pre-trial release conditions have been imposed by a judicial officer. In cases where pretrial conditions of release have been imposed, a probation officer is permitted to monitor conformity with those conditions of release and file notice(s) of violation in the court. Cases where there has been no imposition of conditions of release are distinguishable. They are not taking place in a therapeutic court where the defendant has waived rights in order to be accorded the resources and outcomes available in a treatment court. Because there has been no waiver of rights and no conviction in these cases, a judicial officer should not permit a member of the probation department staff to be a part of this monitoring team in either of the first two stages unless there have been conditions of release imposed because it creates an appearance of partiality and prejudice.

The final stage involves a situation where a person has been convicted. The probation officer could participate in making recommendations to the team in those situations provided the officer is not sharing information about the case that is nonpublic or would otherwise cause the court’s impartiality to be called into question. After conviction, the probation officer’s participation in the team would be consistent with his/her duties as outlined in ARLJ 11.2.

A probation officer may meet with and discuss generally issues germane to the area of monitoring of convicted domestic violence offenders but should not discuss individual court cases unless there has been a conviction. The probation officer should not participate in any team activities in monitoring any cases in which there have been no criminal charges filed or charges are still pending. A court could set conditions of release or monitoring after conviction based on the recommendations of this specialty domestic violence team provided there are no independent circumstances (e.g., specialized fees imposed solely because of team participation) that would call the court’s impartiality into question.

Opinion 14-05

08/12/2014