State of Washington

Ethics Advisory Committee

Question

May a full-time municipal court judge, who formerly served as a deputy prosecuting attorney in another county, contact the indeterminate sentence review board to submit information pertaining to the parole eligibility of a defendant whom the judicial officer formerly prosecuted?

No other person can be identified by the judicial officer who is in position to contact the board with information about the defendant’s criminal activity. Because of the serious nature of the decision to be made by the board, and its need for all pertinent information, the judge is considering sending a letter to the board, under the judicial officer’s name and personal address, without reference to the judicial officer’s current position, solely in the capacity as the former deputy prosecuting attorney who handled the case.

The judicial officer received letters from the Department of Corrections Victim/Witness Notification Unit, on behalf of the Crime Victim’s Advocacy program. The letters seek input regarding the possible parole of an offender, whose case the judicial officer prosecuted in 1983 for first degree statutory rape. At the time the defendant was sentenced to a term of life imprisonment, the deputy prosecutor took the unusual step of adding her name as a representative of the victims to be notified in the event the defendant was ever going to be considered for parole. As the prosecutor familiar with the case at the time, it seemed unlikely the three victims, then under the age of seven years, could be located at a later date. The judicial officer believed at the time and still believes it is important that someone convey the victims’ perspective to those making the decision about parole.

Inquiry by the judicial officer of the current staff of the prosecutor’s office which handled the matter determined that their file with the notes of interviews is unavailable, and the current prosecutor’s staff to date is unwilling to forward the board the information submitted to them by the judicial officer. A complicating factor is that the currently elected prosecuting attorney served as the appointed counsel on appeal for the defendant in this case.

The judicial officer has been advised by the Victim/Witness Notification Program that the victims cannot be located.

Answer

CJC Canon 2(B) provides in part that judges should not lend the prestige of the judicial office to advance the private interests of others and they should not voluntarily testify as character witnesses. As stated above, the judicial officer in this case would be sending the letter to the board under the judicial officer’s name and personal address without any reference to the judicial officer’s current position and not on official letterhead. Therefore, the judicial officer would not be lending the prestige of the judicial office while writing the letter.

The text of the letter is not in the nature of character testimony but rather will focus on the nature of the defendant’s criminal activity and its impact of the crime victims. This would be based on the information available to the judicial officer as the prosecuting attorney who handled the case.

The Code of Judicial Conduct does not prohibit the judicial officer from writing a letter to the indeterminate sentence review board which is based on information the judicial officer learned while acting as the prosecuting attorney.

Opinion 97-14

08/11/1997