Wednesday, October 22, 2014

On the Lawyer Who Should Hang His Head in Shame

On November 7, 2011, counsel for Gilbert filed a no-error brief pursuant to Anders v.California, 386 U.S. 738, 87 S.Ct. 1396 (1967). On March 30, 2012, the majority ordered briefing on the issues of whether the trial court had the authority to grant the state's motion to vacate the plea. State v. Gilbert, lst Dist. No. C-110382, 2012-Ohio-1366.
That's from the prosecutor's memorandum urging the Supreme Court of Ohio to hear its appeal in State v. Gilbert.

Which the court did.  And Monday, in a 5-2 decision, the court affirmed the court of appeals.  Here's the Cliff's Notes version, taken from the court's opinion.

After he was indicted on several charges, Gilbert agreed in a plea agreement to testify against his father, Ruben Jordan, in a murder case. In exchange, some of the charges against Gilbert were amended or dismissed. The trial court proceeded to sentence Gilbert without waiting for him to testify against his father as anticipated in the plea agreement. Later, after he began serving his time in prison, he refused to testify as promised. A year after he was sentenced, the state claimed that Gilbert had breached the plea agreement by failing to give truthful testimony against his father. He was brought back to court from prison, the trial court threw out the former plea, and Gilbert entered a second plea. He was resentenced, and he then appealed to the First District Court of Appeals. That court reversed the trial court’s decision, holding that the trial court did not have the authority to reconsider its own final judgment. We agree. 
It's good for Gilbert, and probably a few other guys.  But it's not likely to make much difference in the long run.  There's a simple way for courts and prosecutors to avoid having this happen in the future.  (No, I'm not going to say how; they can figure it out for themselves - and they will.)  But if you read that opening blurb at the top of this post, you've likely already figure out that I'm not much concerned here with the substance of the court's decision.  The part that interests me is how the case got there.  And for that, we need to go back to the trial court.

In exchange for Kareem Gilbert's agreement to testify against his father, the state reduced the charges he faced and let him plead guilty to less.  He was sentenced to a flat term of 18 years in prison.  That's a hell of a long time, but it isn't death in prison.  It isn't even life with a chance of parole.  It gets him out when he's something like 36 years old.

Except, well, Gilbert reneged.  Not gonna do it, he said.  So the prosecutor went and got the trial court to undo his conviction.  And after some more negotiation and wheedling, Gilbert entered another plea and this time got sentenced to 18 years but with a life tail.  Which means he serves out his days at the pleasure of the parole board.  Which means, frankly, that he doesn't get out, if he ever does, until long after he's 36.  Maybe 50.  Maybe only in a pine box.

And the judge, understanding his duty (in a limited sort of way) appointed a lawyer to appeal his decision.

That lawyer claimed, and we must assume he told the truth, that he diligently examined what happened in the trial court.  He read transcripts, studied motions and memoranda, examined court orders, did research.  And he concluded not only that he couldn't win an appeal for Mr. Gilbert, not only that everything he could argue would be a loser, but that anything he could argue would be wholly frivolous.  Just total nonsense.

Which he told Mr. Gilber in a letter.  And told the court of appeals in a brief.  In which he explained that his client had been lawfully fucked and that there was nothing to be done for him.  He couldn't make an argument in good faith that the application, modification, or even reversal of existing law would help the client.  Nor could he find any way in good faith to ask that the court make new law.

And so he asked to be allowed to get off the case.  (And to be paid for the time he put in, I imagine.)  

They're called Anders briefs after Anders v. California in which the U.S. Supremes set out the basic rules for what a lawyer should do when he can't find anything to say that might benefit his client on appeal.  I've written about them before.  (See here and here and here.)

Done properly, an Anders brief includes an explanation to the court of appeals of how the lawyer studied the record and did research.  Then it then explains to the court that maybe there are these issues, but the client should lose them, and here's why.

An Anders brief is, then, the ultimate sell out.  The lawyer who files one not only doesn't help the client, he affirmatively explains why his client should lose.

And then, then the court of appeals is supposed to scour the record looking for something that's not frivolous.  Maybe not a winner, but worthy of some attention.  Worth a shot.  Should they find it - and in very rare cases they do (to the, I hope, deep shame and lesson learned of the lawyer who filed the Anders) - they then appoint a new lawyer to argue that issue.

As happened in Kareem Gilbert's case.
Based upon our review of the record and the applicable law, we do not agree with appointed counsel’s assertion that Gilbert’s appeal is wholly frivolous. We find that an arguable issue exists as to whether, after the 2010 judgment of conviction had been journalized, the trial court had authority to grant the state’s 2011 motion to vacate Gilbert’s pleas, and then to reconsider its own valid final judgment and resentence Gilbert. 
And so, as they were supposed to, they appointed a new lawyer.  Who convinced the court of appeals that Gilbert really did have a winning issue.  And that he was improperly resentenced.  The proper sentence was as it was from the start.  18 years.  Which as I said is a hell of a long time, but it isn't death in prison.  It isn't even life with a chance of parole.  It gets him out when he's something like 36 years old.  And it beats hell out of 18-life.

And the state asked the Ohio Supreme Court to hear the case, which they did.  And that same lawyer, the one appointed after the first once couldn't come up with anything even worth bothering to argue about, he fought the state in the Ohio Supreme Court.

And he won.

Which is damn good for Kareem Gilbert.

And a serious lesson to us all.


Tuesday, October 21, 2014

Stonecatcher

So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.
John 8:7 (King James Version)

The scene: A courthouse hallway in New Orleans

The cast:
The narrator:  A lawyer who'd just won the release of two men who've spent decades in prison for crimes they committed as children
An "older black woman" who'd been in the courtroom when one of those men  was ordered released
The story:
I thought I'd seen her each time I'd come to the courthouse in New Orleans.  I assumed that she was related or connected to on of the clients, although I didn't remember the other family members ever mentioning her.  I must have been staring because she saw me looking and waved at me, gesturing for me to come to her.
When I wasked over to her she smiled at me.  "I'm tired and I'm not going to get up, so you're going to have to lean over for me to give you a hug." She had a sweet voice that crackled.
I smiled back at her. "Well, yes, ma'am. I love hugs, thank you." She wrapped her arms around my neck.
"Sit, sit. I want to talk to you," she said.
I sat down besider her on the steps. "I've seen you here several times, are you related to Mr. Caston or Mr. Carter?" I asked.
"No, no, no, I'm not related to nobodyhere.  Not that I know of, anyway." She had a kind smile, and she looked at me intensely. "I just come here to help people. This is a place full of pain, so people need plenty of help around here."
"Well, that's really kind of you."
"No, it's what I'm supposed to do, so I do it." She looked away before locking eyes with me again. "My sixteen-year-old grandson was murdered fifteen years ago," she said, "and I loved that boy more than life itself."
I wasn't expecting that response and was instantly sobered. The woman grabbed my hand.
"I grieved and grieved and grieved. I asked the Lord why he let someone take my child like that. He was killed by some other boys. I came to this courtroom for the first time for their trials and sat in there and cried every day for nearly two weeks. None of it made any sense. Those boys were found guilty for killing my grandson, and the judge sent them away to prison forever. I thought it would make me fell better but it actually made me feel worse."
She continued, "I sat in the courtroom after they were sentenced and just cried and cried. A lady came over to me and gave me a hug and let me lean on her.  She asked me if the boys who got sentenced were my children, and I told her no. I told her the boy they killed was my child." She hesitated. "I think she sat with me for almost two hours. For well over an hour, we didn't neither one of say a word. It felt good to finally have someone to lean on at that trial, and I've never gorgotten that woman. I fon't know who she was, but she made a difference."
"I'm so sorry about your grandson," I murmured. It was all I could think of to say.
"Well, you never fully recover, but you carry on, you carry on.  I didn't know what to do with myself after those trials, so about a year later I started coming down here. I don't really know why. I guess I just felt like maybe I could be someone, you know, that somebody hurting could lean on." She looped her arm with mine.
I smiled at her. "That's really wonderful."
"It has been wonderful. What's your name again"
"It's Bryan."
"It has been wonderful, Bryan. When I first came, I'd look for people who had lost someone to murder or some violent crime. Then it got to the point wheere some of the ones grieving the most were the ones whose children or parents were on trial, so I just stared letting anybody lean on me who needed it. All these young children being sent to prison forever, all this grief and violence. Those judges throwing people away like they're not even human, people shooting each other, hurting each other like they don't care. I don't know, it's a lot of pain. I decided that I was supposed to be here to catch some of the stones people cast at each other.


Bryan is Bryan Stevenson, graduate of Harvard Law School, founder and Director of the Equal Justice Initiative, Professor of Law at NYU, arguer of cases in the U.S. Supreme Court, grantee of seeral honorary degrees, winner of a MacArthur Foundation genius award, recipient of the Olaf Palme Prize, America's Nelson Mandela. I could go on.  

But no need.  Because, see, Bryan Stevenson isn't measured by credentials, honors, and awards suitable for listing on a resume. (Though he's got enough of them to fill a small mansion.)  He's measured by the dreams - and the accomplishments.

And so Just Mercy: A Story of Justice and Redemption, his memoir/manifesto due to be released today, is filled with stories.  There are stories about the poor and the desperate.  Stories about race and poverty and a legal system where it is too often better to be rich and guilty than poor and innocent.  There are stories about children sentenced to be executed.  About children sentenced to LWOP, life without parole, death in prison.  

There are last minute struggles to stave off the executioner, struggles too often failed.  And there are the successes, almost always bittersweet.

The thing is, they're stories about real people.  

There's Joshua Carter.  He was 16 when he was convicted of a rape and sentenced to be executed.   That was 1963.  In 1965, the Louisiana Supreme Court overturned his conviction because of the brutality of the beating police inflicted on him to get him to confess.  He was resentenced to death in prison.  In his own way, and in the limited ways that prison allowed, he thrived.  He became a model prisoner.  He became a trustee.  And, oh yeah. Because they didn't give him the medical treatment he needed, he became blind.  But after nearly 50 years, and after Stevenson convinced the Supreme Court that LWOP sentences for juveniles who didn't kill are unconstitutional, he was released.   

There's Marsha Colbey who was sentenced to LWOP for the murder of her child - who was stillborn.  (Yes, that's right, the child wasn't murdered at all, was never actually alive.)  At the Julia Tutwiler Prison for Women in Alabama she met other women who were, similarly, serving life sentences for murdering their stillborn babies.  If she was not alone in that, she was also not alone in dealing with the conditions of confinement at Tutwiler.  

Desperately overcrowded, the women at Tutwiler are crammed into spaces without any meaningful sorting.  The seriously mentally ill are mixed into dorm rooms where "Marsha could never quite get used to hearing women screaming and hollering inexplicably throughout the night."  Then there were the prison guards who harassed, assaulted, and raped the women with virtual impunity.  Colbey became an advocate for the young women.  When EJI finally won her release, they gave her an award.
I got help that most women can't get.  It's what bothers me the most now, knowing that they are still there and I'm home. I hope we can do more to help more people.
As the audience applauded, she cried. 

And it is, most tellingly, the story of Walter Mcmillian.  Convicted on trumped up evidence of a murder he didn't commit.  Stevenson represented him for years, through unsuccessful appeal after unsuccessful appeal.  Until finally.  The tale is by turns hopeful and tragic.  The actions of the county sheriff, the prosecutor, and the courts altogether outrageous.  (And the subject of a powerful book by journalist Pete Earley, Circumstantial Evidence: Death, Life, and Justice in a Southern Town.)

After Stevenson finally won Mcmillian's release, he spent years fighting to get him compensation.  Which he was finally ordered.  Until the U.S. Supreme Court said no.  Oh, sure.  If the county Sheriff was a "policymaker" for the county, Mcmillian could recover.  But the Court said (5-4 vote, naturally) that the Sheriff is a policymaker for the state.  And Mcmillian couldn't sue the state.

The story of Walter Mcmillian is by turns heartbreaking and heartwarming.  And it's the narrative core of Just Mercy, the focus of every other chapter.  In between are the other stories, including Stevenson's own (told with a remarkable amount of modesty, I should add).

I've had the pleasure more than once of hearing Bryan Stevenson speak at conferences.  He is inspiring for what he's done, his work to reform the criminal justice system, to end mass incarceration, to free the innocent, to fight the death penalty, to fight against death in prison sentences - especially for juveniles, to remedy prison conditions, to tackle issues of race and class.
We are all implicated when we allow other people to be mistreated.  An absence of compassion can corrupt the decency of a community, a state, a nation. Fear and anger can make us vindictive and abusive, unjust and unfair, until we all suffer from the absence of mercy and we condemn ourselves as much as we victimize others. The closer we get to mass incarceration and extreme levels of punishment, the more I appreciate that we all need mercy, we all need justice, and -- perhaps -- we all need some measure of unmerited grace.
Just Mercy tells that story.  It points a way, shows that it's possible to make a difference, to be a stonecatcher.

----------------
I'm grateful to the publisher for making a prepublication copy of Just Mercy available to me for this review.

Friday, October 10, 2014

Dissing the Heinous Crime Rule

I'm at a gathering of criminal defense lawyers which just naturally gets me thinking about what criminal defense lawyers do.  And no, I'm not wading back into that thicket today, though if you're remarkably bored you can search the archives for a string of posts in the Who-We-Are-and-What-We-Do series.  Anyhow, this is just an opening (you gotta start somewhere) to get to the simple point (which is itself a set-up for where I hope to take this).

We represent people charged with and convicted of crimes.  Some of the crimes are crimes only because the law says so.  (See Greenfield this morning on New York's law against gravity knives, for instance.)  Some are crimes because, well, it's against the law to steal a loaf of bread even if the kids are hungry.  And you don't have a right to beat up the guy on the next barstool just because he looked funny at you.

And then there's the monsters.  We represent people accused of, then convicted of, truly horrific things.   Really, until you've walked for a while in the trenches of the criminal law, you don't have a real understanding of the things people do to one another.  Baby rapers, torture killers, guys who fly airplanes into buildings, self-declared monarchs who commit genocide.  Some of the folks charged with, even convicted of those crimes in fact committed them.  

Others - that's another of the horrific things people do to one another.  They charge them, and convict them, of stuff they didn't do.  Even really awful stuff.

Out in the world there are the Nancy Graces, the Thane Rosenbaums, the Robert Bleckers, the Bill Otises.  They know, just know, who really did it.  They have no sympathy for the system that they claim coddles the evildoers, the monsters.

But here's a simple point, and it's where I want to go, what I want to be as clear as possible about.

It's when the charges are worst.  It's when the outrage is greatest.  It's when the accused is most clearly guilty in fact.  When she's most reviled, most despised.  When there's no excuse to be believed, when there's nothing.  When it's the devil himself in the box.  When it's hardest.

That's when it matters most.

Not just that we be there.  That part's easy.  We're there because it's what we do (again, search the archives).  

Floyd Holder, a fine lawyer gone for some time now (Jonathan Turley, who tried a case with him, once described him to me as "the Rumpole of the Plains"), described to me what he called the "Heinous Crime Rule."  
If the crime is sufficiently heinous, there's no such thing as reversible error.
Which is, I regret to say, mostly true.  And exactly wrong.

Because that's when it matters most.  That's when our system is most tested.

Because that's when the Rule of Law is most readily susceptible to giving way to the Law of Rule. It's when the courts, that don't want to, are most obligated to say 
NO.  DAMMIT.  SHIT.  WE HATE THIS.
But if you can't do it right, then you don't get to do it at all.

If the measure of a society is how it treats the least, the measure of a legal system, and the measure of a judiciary, is how it treats the worst.

Thank you for your attention.

Tuesday, October 7, 2014

Stopping the Innocent: SCOTUS Edition

Well, there -- wholly innocent people are stopped quite often because of mistakes of fact, for instance.  That's part of the whole Terry ­­ how Terry works and those types of brief stops.  There turns out times that citizens have not committed any kind of offense, and yet they are stopped.
Robert C. Montgomery, Senior Deputy North Carolina Attorney General, oral argumentHeien v. North Carolina.
* * * * *
It was at the U.S. Supreme Court Monday morning, the first Monday in October.  Montgomery was trying to answer a question from Justice Sotomayor who wondered just how many folks in the Old North State (Tarheels they) get illegally stopped for having only one brake light* and then asked if they're ok with having the cops search their car.  And, she wondered, 
[I]s that something that we as a society should be encouraging?
Montgomery told the truth, of course.  

Cops stop lots of innocent people.  They do it all the time.  Enthusiastically.  On the flimsiest of excuses that they say (and the courts are willing to believe) amount to what the Supremes said in Terry v. Ohio is enough for a stop: "reasonable, articulable suspicion."  It's a standard just about any cop who's not brain dead can make up shit to satisfy, which is one reason the Fourth Amendment has become more a cover for the police than a shield against police misconduct. 

But you know, there are truths and there are truths.  And this is one that nobody in authority is supposed to admit.  That much of what the cops do is just stopping folks for no acceptable reason.  

Except that they wanna.  And they can get away with it.  Because we let them.

Which takes us back to Sotomayor's question about what we should be "encouraging."  And back to Stop and Frisk and Driving While Black and being Hispanic in Maricopa and

The actual question in Heien, the one the Court agreed to answer, looks straightforward enough.
Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
As often happens during oral argument that's not mostly what they talked about.  Mostly what they talked about was whether the question mattered or they should have been answering another question. (If it happen that hte stop was illegal, what should happen to the ensuing search of the car?)

But there was that single line, really, just part of a sentence.
wholly innocent people are stopped quite often
And the rest, never quite said because it's impolitic.
And we're good with that.
Besides, it doesn't happen to us.

Just to them.

It's one of those times when we don't disguise that the Rule of Law is, in fact, the Law of Rule.

Which Deputy Attorney General Robert Montgomery came right out and admitted.  


-------------------
*Do not try this at home unless home is North Carolina.  The law pretty much everywhere else in these United States is that you have to have two working brake lights.

Saturday, October 4, 2014

The Divine Right of the NSA

Even if the Court were to conclude that Plaintiffs have presented sufficient admissible evidence of facts, which, if true, would demonstrate that Upstream collection involves a Fourth Amendment seizure or search of Plaintiffs’ communications, and that the minimal intrusion upon Plaintiffs’ possessory and privacy interests is not far outweighed by Upstream collection’s promotion of the Government’s compelling interest in national security, then the Government, in the alternative, would still be entitled to summary judgment on Plaintiffs’ Fourth Amendment claims. That is so, because adjudication of those claims and the Government’s defenses thereto would require disclosure of national-security information subject to the DNI’s assertion of the state secrets privilege.
So said the government (ours) Monday in Jewel v. N.S.A. a case in which . . . . Aw, hell.  Here's part of the case summary from the US Court website.
This case involves claims by numerous citizens that their constitutional rights were violated by the United States government through unauthorized surveillance of their telephone and internet activity by the National Security Agency (NSA) and other government actors under the "Terrorist Surveillance Program" or TSP. They allege that this was done in concert with major telecommunications companies and outside of the procedures of the Foreign Intelligence Surveillance Act (FISA) and without authorization by the Foreign Intelligence Surveillance Court (FISC). 
So let's pare it down to its basics.

Jewel and the rest of the plaintiffs say that a government agency is violating the Constitution.  To which the government responds,
Maybe.
But if we are, it's for national security.
Or so we say.
Which means that the courts have to let us do it.
It's something called the "State Secret's Doctrine" which means, basically, that if the government says
We gotta do it.
The courts say
OK, then.
It would be wrong to call that hubris.   It pretends, after all, to be the Rule of Law.  

It's not.  Not even close.

But it's a very clear statement of the Law of Rule.

Friday, October 3, 2014

The Blind Leading the Blind - UPDATE

In high school, I had a history teacher who told us that the hallmark of a democracy is that people get to choose who their dictator would be.  (He didn't phrase it that way, but he was just as blunt.  It was the mid-60s and ours was a school that would let a teacher get away with saying something like that.)

In a similar vein, one of the hallmarks of freedom is that people get to make bad choices.

Which brings us, I'm afraid, back to Maverick.

Not the tall, dark stranger, the riverboat gambler, the rider of a trail to who knows where.  



Not him.

No, we're talking about Maverick Ray, the kid lawyer who'd been licensed for 6 months when Sharon Lynch hired him to defend her fiancĂ©, Howard Wayne Lewis, in a death penalty case.  Lewis was charged with murdering his 18-month-old son and the boy's grandmother.  From the Huntsville Item.
"I didn’t want anyone from Walker County,"
She said she used the Internet to look for a criminal defense attorney in Houston. Lynch said she talked to "less than five lawyers" before speaking with Ray, who said he would take the case.
Lynch said she knew Ray had not been practicing long, but hired him because he was "fresh and not part of the old boy network." She also said at the time she was under the assumption he was qualified to handle a death penalty case.
Remember, this is Texas.
Where they execute with abandon.

The judge was wary. The fucking prosecutor was wary.   (He didn't want to have to try the case twice after it got reversed because Lewis had constitutionally ineffective counsel.)  Criminal defense lawyers cringed.  Blawggers tried an intervention.  Back off, they we said. *
There's still time.  You're too inexperienced.  Death cases are too hard.  And they're different.  Don't do this to him.  Don't do it to you.  Learn first.
Experienced capital lawyers offered to help.

Jack Stoffregen is the chief defender for the Texas Regional Public Defender for Capital Cases. He got hold of Maverick, offered to help.  

"We indicated to Mr. Ray that he could stay on the case, and we would provide two qualified attorneys, a mitigation specialist and an investigator," Stoffregen said. "We said he could stay on as second chair and participate, but the strategic decisions would need to be made by our lawyers because we have the experience."
Stoffregen added that Ray told him he would talk to Lewis about the offer but Stoffregen never got a response.
Maverick himself?
Ray said that he has a paralegal and an investigator with decades of experience who will assist him. He also said he would consult the case with his mentor, long-time Houston defense attorney Gilbert Villareal.
"I have help and I have experience," Ray said.
And balls.  Gotta give him that.

All of this was at a hearing before Judge Don Kraemer on the prosecutor's motion to get Maverick kicked off the case.  
The District Attorney's office had filed a motion to determine Ray's qualifications to try a capital murder case in which the prosecution was seeking the death penalty. District Attorney David Weeks argued that Ray does not have the experience to serve as lead counsel in Lewis' case, since Ray was only out of law school for about six months when he was hired by Lewis' fiancé.
There were concerns that his lack of experience hampers Lewis' right to a fair trial, thus bolstering Lewis' chance at an appeal for ineffective counsel if he is found guilty.
"This is a violation of ethical responsibility to take this case knowing (Ray) is not qualified," Weeks said. "I understand the Sixth Amendment, but this is unfair to Mr. Lewis and unfair to the state of Texas."
The bottom line though is that Maverick won't voluntarily get off the case.  And Lewis doesn't want him to get off.  Which leaves the judge with no real choice.
It is his Sixth Amendment right to representation of counsel of his choice and if that, Mr. Lewis, is what you choose to do, then Mr. Ray will be your attorney," Kraemer said.
Because one of the hallmarks of freedom is that people get to make bad choices.

And then have to live - or perhaps die - with them.


Exhibit B
Maverick Ray in self-aggrandizing mode
Exhibit A
Howard Wayne Lewis on his way to court last year














UPDATE

Read Greenfield, Choice, Poor Choice and Then What

---------------------
*See, for instance, here and here and here and here and here and here and . . . . You get the idea.  You can read the comments and follow the internal links to other blawggers if you're so inclined.  


Thursday, September 25, 2014

Judging the Judges

Judge Kopf wondered what others thought, then offered his own thoughts, on what to do about Mark Fuller, the U.S. District Judge who beat his wife.  I offered a response in a post (one I'm not altogether sure I agree with, but hey, that's the nature of ruminations) in which I mentioned a couple of local judges charged with serious misconduct.  One of them was Lance Mason who, because of the charges, is not currently hearing cases.

I was in the courthouse the other day, in a courtroom across from where Judge Mason sits and hears cases when he actually sits and hears cases.  I noticed that the doors to his courtroom were open, the lights on.  The plaque outside had his name illuminated.  His name plate was still on the bench. Nobody inside, of course.  Not open for business, though it sure looked like it was.

Yesterday, and one county over, Jim Burge, a trial court judge, was charged by a special grand jury with 12 counts of public corruption. (Story here and here, indictment here.)  Because some of the charges are felonies, Burge can't hear any cases until the case against him is resolved.  

Also yesterday, the Ohio Supreme Court issued a public reprimand to an appellate court judge, Colleen O'Toole, for misconduct while she was running for office while also declaring that one of the rules she was alleged to have violated was unconstitutional.  The thing about that unconstitutional rule?  It was promulgated by the Ohio Supreme Court.  Ooops.

Which brings me to the Garden State, New Jersey, where the supreme court heard oral argument Tuesday on what to do about Judges Raymond Redden and Gerald Keegan who had the bad judgment to attend "weekly church group dinners" with Anthony Ardis, "a close friend who happened to also be a public official recently indicted on corruption charges" (here, behind a paywall you can sometimes get past).

It's not that they actually did anything wrong.  Nobody suggests that.  It's that they had a friend who was indicted.  And with whom they broke bread.  Tracie Gelbstein, disciplinary counsel said as much to the court.
"To be clear, there was no actual impropriety," Gelbstein told the court. "They did not intend to violate the Code of Judicial Conduct. However, they created an appearance of impropriety."
. . .
Justice Barry Albin asked whether it would be improper for the judges and Ardis to walk into church together, sit in the same pew or speak to each other.
Gelbstein said the ACJC would look at the facts and make a determination.
Because Caesar's Wife.  Or something.

As I've discussed before (for instance, here), this whole appearance of impropriety thing is tricky.  It's a variation on the problem of the heckler's veto, preventing speech because someone might take umbrage.  (See all the discussion - too much to link to, but for a couple of instances try here and here - of the ill-conceived and blatantly unconstitutional revenge porn laws.) 

It is, of course, a problem, this thing about the public's perception.  As one judge asked, perhaps rhetorically, at that hearing Tuesday in New Jersey.
Appellate Division Judge Mary Catherine Cuff, temporarily assigned, asked whether judges, in regulating their behavior, had to subject themselves to the public's "lowest common denominator."
They must "accept some restraints" said Gelbstein who, you'll recall from just a bit up the page, is pursuing the charges against those judges who, he admits, didn't actually do anything wrong.

Of course, Scalia had no problem going duck hunting with his pal Dick Cheney while Cheney was a party to a case before him.  

That's the thing about the appearance of propriety.  It mean whatever you want it to mean.  So it means nothing.  Orwell would have understood.