Judge gets public admonishment

But Novak’s attorney Jim Murphy expressed disappointment with the commission’s decision, noting it exacted too strong a punishment on a fair, impartial judge who takes her responsibility seriously and could cause other judges to be overly guarded in discussing cases with their colleagues.

“I thought under the circumstances the penalty was overly harsh,” he said. “I think it sends the wrong message to judicial officers.”

In a disagreement with defense attorney Mara Feiger over whether Feiger had made a motion to exclude witnesses during a 2015 preliminary hearing, Novak called Feiger unprofessional for continuing to assert she had made the motion in question after Novak had mistakenly determined she hadn’t. The commission found Novak’s comments, which were made in front of the defendant, violated her duty to be courteous to those who appear before the judge and could have damaged the attorney-client relationship Feiger shared with the defendant, according to the decision.

During a January 2017 hearing of a motion to dismiss charges in another case over which Novak presided, whether a police sergeant had taken a cellphone video to record a defendant’s arrest by police officers became a factor in determining whether the defendant should face charges of battery on an officer and resisting arrest. When a bailiff approached Novak on the second day of the hearing in the hallway to say he may have “seen that video,” she said she could not discuss the matter, according to the decision.

Neither the prosecutor nor the defense attorney were present when the exchange between Novak and the bailiff took place, she did not tell them about it but did state she was troubled by the sergeant’s testimony he had not recorded a video of the arrest and asserted it was evident he had recorded it, according to the decision.

In a response to the commission, Novak stated she was not certain whether the bailiff was referring to the video recorded by the police sergeant or another one recorded by family members of the defendant that was played in court. The commission found Novak’s exchange with the bailiff had bearing on the motion in front of her and constituted ex parte communication she failed to disclose, according to the decision.

At a Jan. 20, 2017, meeting with judges after the hearing, Novak informed those present she found the police sergeant had perjured himself and she had granted a motion to dismiss some charges because his testimony had not been credible, according to the decision.

Because those attending the meeting could later preside on hearings related to the case Novak described and because the police sergeant could be called as a witness on other cases, the commission found her comments at the meeting also constituted unauthorized ex parte communication. Though Novak contended her comments were proper because she didn’t mention the case by name, commissioners found the details she shared were identifiable and she was not seeking the advice of other judges, according to the decision.

Though judges are allowed to consult with and assist each other in their responsibilities, the commission found Novak had not been seeking advice from her colleagues in mentioning the case, according to the decision.

Based on judicial conduct training they receive, Murphy contended 95 out of 100 judges would have made the same decision Novak did with regard to ending the conversation with her bailiff when she did, and said the commission’s decision may encourage judges to report too wide a range of conversations they have about their cases to the party and risk embroiling themselves in them.

“Judges are taught if someone is initiating ex parte communication, you stop the conversation right there,” he said. “That’s exactly what Judge Novak did.”

He added the commission’s decision may also discourage other judges from seeking advice from their colleagues out of fear of similar retribution.

“For a judge to be precluded from discussing this with other judges … it’s going to cause other judges to worry about not talking to their colleagues,” he said. “It has a chilling effect, I think.”

anna@smdailyjournal.com

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