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Judiciary

Federal judge offers ‘unreserved apology’ after order says his Alito criticism violated ethics rules

By Debra Cassens Weiss

December 18, 2024, 12:09 pm CST

Senior U.S. District Judge Michael A. Ponsor of the District of Massachusetts is offering an “unreserved apology” and a commitment to “scrupulously avoid” future transgressions after he was found to have violated the judicial code of ethics for criticizing U.S. Supreme Court Justice Samuel Alito in an op-ed in the New York Times.

Ponsor’s apology letter resolves the ethics complaint, according to the Dec. 10 order by Chief Judge Albert Diaz of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia. Diaz investigated after the case was transferred to his court from the appeals court with jurisdiction in Massachusetts, where Ponsor is located.

The Wall Street Journal broke the story on Diaz’s order, followed by coverage by Reuters and Bloomberg Law.

Ponsor, an appointee of former President Bill Clinton, had criticized the display of an upside-down flag at Alito’s home and an “Appeal to Heaven” flag at the justice’s vacation home in the May op-ed.

The flags are associated with stolen-election claims and Jan. 6, 2021, U.S. Capitol rioters. Alito has said his wife erected the flags.

“Flying those flags was tantamount to sticking a ‘Stop the Steal’ bumper sticker on your car,” Ponsor wrote in the op-ed. “You just don’t do it.”

Noting Alito’s claim that his wife flew the flags, Ponsor offered a hypothetical. If his wife had expressed her view of the death penalty when he had a case pending on that issue, Ponsor said, he would have recused himself based on the appearance of partiality.

Diaz said Ponsor’s criticism harmed public confidence in the integrity of the judiciary, and its “political implications and undertones” violated a ban on commenting on the merits of pending cases.

Following the flags controversy, Democrats had called for Alito’s recusal in pending cases involving obstruction charges against accused Capitol rioters and President-elect Donald Trump’s immunity from prosecution in the federal election-interference case.

The public might have interpreted Ponsor’s op-ed “as a commentary on partisan issues and as a call for Justice Alito’s recusal” in pending Jan. 6 cases, Diaz said.

Ponsor’s apology letter said the ethics violations were “unintentional at the time but clear in retrospect.”

The Article III Project, a conservative group, had filed the ethics complaint against Ponsor.

“The courts and Judge Ponsor took this seriously,” said Mike Davis, the founder of the Article III Project, in a statement cited by Reuters and the Wall Street Journal. “I accept his apology letter at face value.”

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3. Lawyers ordered to provide door-to-door apology…

Ethics

Lawyers ordered to provide door-to-door apology after their early-morning ‘scream test’

By Debra Cassens Weiss

October 14, 2024, 11:27 am CDT

Lawyers who wakened South Philadelphia residents with a looped recording of a screaming woman to prove a point in a lawsuit must go door to door to issue in-person apologies, a federal judge has ruled.

In an Oct. 10 opinion, U.S. District Judge John F. Murphy of the Eastern District of Pennsylvania said lawyers for former inmate Termaine Hicks will have to mail written apologies to nearby residents. At least one lawyer will have to go door to door to apologize to those living closest to the recording.

Law.com and Law360 have coverage, while Courthouse News Service published a brief summary and linked to the decision by Murphy.

The 122-decibel recording broadcast for more than an hour beginning at 5:30 a.m. Sept. 23. That volume is “somewhere on the border between uncomfortable and painful and is similar to an ambulance siren, a rock concert or a chainsaw,” Murphy wrote.

Hicks was suing several police officers and the city of Philadelphia for allegedly framing him for a rape. He was imprisoned for 19 years until his conviction was vacated in December 2020.

Hicks had claimed that he heard a woman screaming in the early-morning hours of Nov. 27, 2001, and he went to help. She had been sexually assaulted and was lying on the ground.

According to Hicks, police arrived, shot him three times in the back and planted a gun to frame him for the crime. One issue is whether Hicks could have heard the woman screaming from two blocks away.

Lawyers for the defendants had tried to show that Hicks didn’t hear the screams by hiring an acoustics expert who played a “siren chirp” in the neighborhood. Attorneys for Hicks retained an expert who devised a “scream test.”

The plaintiff’s attorneys had been instructed not to speak directly to city employees and had assumed that the defendants’ counsel would contact police and take necessary precautions.

Police were notified.

“What is clear is that no one provided community members with notice of the scream test,” wrote Murphy, who also had no notice of the plan.

Lawyers for the plaintiffs acknowledged that “residents were clearly upset,” Murphy said. One man came over with a baseball bat. A woman yelled at the acoustics expert. Many wanted to know who was responsible for the recorded scream and asked whom they could contact to complain.

“At best, this lack of forethought and sensitive judgment resulted in a deeply disturbing and potentially dangerous situation,” Murphy wrote. “At worst, it undermined the local community’s confidence in the exact justice system that Mr. Hicks relies on for recourse.”

Murphy decided against withholding the “scream test” evidence as a sanction, citing three reasons. The plaintiff’s counsel did not act maliciously, there is no apparent prejudice to the defendants, and banning the evidence “would have misplaced effects,” Murphy said.

“Such an action would benefit defense counsel, who were present for the scream test and at least complicit in allowing the test to move forward,” he said.

Lawyer Emma Freudenberger of the law firm Neufeld Scheck Brustin Hoffmann & Freudenberger took personal responsibility for what happened, Murphy said in a footnote. The judge allowed any lawyer for the plaintiffs to conduct the in-person apologies, however.

Law360 reported that two firms represented the plaintiff. The second is Kairys Rudovsky Messing Feinberg & Lin. Freudenberger and other lawyers for the firms did not immediately reply to an ABA Journal email seeking comment.

The case is Hicks v. City of Philadelphia.

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3. Apology sanctions for misleading court were…

Prosecutors

Apology sanctions for misleading court were ‘mild and fitting,’ 3rd Circuit rules in appeal by DA’s office

By Debra Cassens Weiss

March 12, 2024, 3:55 pm CDT

A federal judge did not abuse his discretion when he imposed “mild and fitting” sanctions on lawyers in the Philadelphia district attorney’s office for misleading statements made when they sought to vacate the death penalty in a double murder case.

The 3rd U.S. Circuit Court of Appeals at Philadelphia upheld the sanctions in a March 8 opinion, report Law.com, Law360 and the Volokh Conspiracy. How Appealing noted news coverage and linked to the opinion.

One of the sanctions required Philadelphia District Attorney Larry Krasner to write apology letters to four members of the families of the murder victims. The other required the office to be more forthcoming in the future.

U.S. District Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania had imposed the sanctions in September 2022 for misleading statements by the district attorney’s office when it conceded the defendant’s ineffective counsel claim following a death penalty retrial. The office said it reached the decision after a review of the case and “communication with the victims’ family.”

The convicted man, Robert Wharton, had argued that his lawyer in the death penalty retrial was ineffective for failing to argue that he had adjusted well to prison.

But when conceding the ineffective assistance claim, the district attorney’s office never revealed that Wharton had tried to escape from courtroom custody in an unrelated case, resulting in a conviction, the 3rd Circuit said. Nor did the office reveal six instances of prison misconduct by Wharton, including twice being found with makeshift handcuff keys.

And the district attorney’s office communicated with only one family member—and it wasn’t the daughter of the victims, who was only 7 months old when she was left in freezing temperatures after Wharton killed her parents, Bradley and Ferne Hart, in 1984.

The person who was consulted, a brother of one of the victims, was never clearly told that the office planned to concede the death penalty, the 3rd Circuit said.

“The sanctions imposed were mild and fitting,” the 3rd Circuit said in an opinion by Judge Stephanos Bibas, an appointee of former President Donald Trump.

Goldberg had directed the office to include a “full, balanced” explanation of facts when making future concessions, which serves the goal of deterrence, Bibas said. And the apology letter “may help soothe” the outrage of family members, who were “taken [a]back” when they learned of the concession by the district attorney’s office, according to Bibas.

“Courts rely on lawyers’ honesty; lawyers may not mislead them,” Bibas wrote.