Could a retired active judge write a book about capital cases tried before retirement?

Plain-English summary

A retired active circuit judge proposed a book giving factual accounts of cases the judge had tried. Most were capital cases in which the death sentence had not been carried out. The opinion said retired active judges serving part-time remained subject to the relevant Canons.

Canon 3A(6) barred public comment on pending or impending proceedings, including cases still on appeal. The Commission also said a capital case with an unexecuted death sentence was not truly over for this purpose and barred writing about it before the sentence was carried out.

After final disposition, public comment was not categorically prohibited, but the Commission discouraged commentary on cases the judge had tried, especially if it could call a ruling into question. The judge also could not exploit judicial office or disclose nonpublic information learned in a judicial capacity.

Currency note

This opinion was issued in 1999, after the Alabama Supreme Court's 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Could the judge publish while a case was on appeal?

A: No. The opinion treated an appealed case as pending for Canon 3A(6).

Q: Could a capital case be described before the sentence was carried out?

A: No. The Commission said the case was not truly over until then.

Q: Did final disposition give unrestricted permission to write?

A: No. The Commission discouraged commentary that might cast doubt on a decision and barred use of nonpublic judicial information.

Background and rules framework

Alabama Canon 3A(6) addressed public comment on pending cases. Canons 4 and 4A allowed legal-system writing within judicial limits, Canon 5A covered nonlegal writing, and Canons 5C(1) and 5C(6) barred exploitation of office and use or disclosure of nonpublic judicial information for unrelated purposes.

Citations and references

The opinion cites Alabama Canons 3A(6), 4, 4A, 5A, 5C(1), and 5C(6), Compliance With the Canons of Judicial Ethics § D(2), and Advisory Opinions 80-85 and 85-247.

See also

• AL Judicial Ethics Op. 85-247: Discussing Decided Case in Litigant's Book

• AL Judicial Ethics Op. 80-85: Campaign Comments on Criminal Rulings

Source

• Landing page: Alabama JIC advisory opinions

• Original PDF: Advisory Opinion 99-739

• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

JUDICIAL INQUIRY COMMISSION
DATE ISSUED: SEPTEMBER 29, 1999 ADVISORY OPINION 99-739
WRITING ABOUT CASES TRIED BY THE
JUDGE
ISSUE
May a judge write a book about one or more
cases over which the judge presided?
Answer: No, not before final disposition of
the case. Even after final disposition, such
writing is discouraged, and a judge should not
write about a capital case in which the death
penalty was imposed before the sentence is
carried out.
FACTS
A retired active circuit judge proposes to write
a book about one or more cases the judge tried
before retirement. For the most part, the cases
contemplated are capital cases in which the
sentence has not yet been carried out. The
judgeenvisions writingafactualaccountabout
the victim, the defendant, and the trial.
DISCUSSION
Retired active judges who are serving part-
time on any state court in an active duty status
are required to complywith all of the Alabama
Canons of Judicial Ethics other than Canon 6C
and Canon 5C(3), D, E, F, and G. Compliance
With the Canons of Judicial Ethics, §D(2).
Canon 3A(6) requires a judge to “abstain from
public comment about a pendingor impending
proceeding in any court,” other than public
statements in the course of official duties and
explanations of the procedures of the court for
public information.
Canon 4 states that a judge “may engage in
activities to improve the law, the legal system,
and the administration of justice.” Canon 4A
permits a judge to write concerning the law,
the legal system, and the administration of
justice, “subject to the proper performance of
his judicial duties, ... if in doing so he does not
cast doubt on his capacityto decide impartially
any issue that may come before him.”
Under Canon 5A, “A judge may write ... on
nonlegal subjects” if such writing does not
“detract from the dignity of his office or
interfere with the performance of his judicial
duties.” Under Canon 5C(1), a judge must
“refrain from financial and business dealings
that tend to reflect adversely on his
impartiality, interfere with the proper
performance of his judicial duties, or exploit
his judicial position.” Canon 5C(6) provides
that “[i]nformation acquired by a judge in his
judicial capacity should not be used or
disclosed by him in financial dealings or for
any purpose not related to his judicial duties.”
Except as permitted under Canon 3A(6), a
judge may not comment publicly about any
pendingcase. TheCommission haspreviously
noted that a case is “pending” while it remains
on appeal.
Although public comment is not completely
proscribed after final disposition of a case, any
such comment should be approached with
considerable caution. The Commission has
stated in past opinions that, “except under the
most extraordinary circumstances, a judge
should refrain from commenting on specific
cases in which he has participated, especially
where such comment could compromise the
validity of any ruling or order entered by him
in such cases.” Advisory Opinions 80-85 and
85-247. The Commission observed the
following in Advisory Opinion 85-247:
ADVISORY OPINION 99-739
PAGE 2
While the Canons are not specifically
addressed to commentary by a judge
on past cases, the Canons do require
that a judge should perform the duties
of his office impartiallyand diligently,
Canon 3, and he should uphold the
integrity and independence of the
judiciary, Canon 1. Judges should, in
upholding these Canons, avoid any
comments about the trial of a decided
case if such comments could cause the
decision to be questioned or might
cast dispersions (sic) upon the legal
system.
As the inquiring judge recognizes, a capital
case in which the death penalty has been
imposed is not truly over until the sentence is
carried out. Given the risk of creatinggrounds
for questioning the judgment in such cases, it
is the opinion of the Commission that a judge
may not write about capital cases until the
sentence is carried out.
The Commission also notes that a judge must
avoid exploitation of his judicial position
(Canon 5C(1)), and maynot disclose anynon-
public information about a case over which
the judge presided that was acquired by the
judge in his judicial capacity. Canon 5C(6).
REFERENCES
Alabama Advisory Opinions 80-85 and 85-
247.
Alabama Canons of Judicial Ethics, Canons
3A(6), 4, 4A, 5A, 5C(1), 5C(6), and
Compliance With the Canons of Judicial
Ethics, §D(2).
This opinion is advisory only and is based on
the specific facts and questions submitted by
the judge who requested the opinion pursuant
to Rule 17 of the Rules of Procedure of the
Judicial Inquiry Commission. For further
information, you may contact the Judicial
Inquiry Commission, 800 South McDonough
Street, Suite 201, Montgomery, Alabama
36104; tel.: (334) 242-4089; fax: (334) 240-
3327; e-mail: [email protected].