Treatment court judges serve as both enforcers of the law and collaborators with defendants; a unique dichotomy that can test ethical boundaries.
In almost all criminal proceedings, judges are forbidden from talking directly with the defendants, outside the presence of their attorney.
But that isn’t the case in drug, drunken driving or mental health treatment courts where judges are confronted with the reality of interacting with participants, absent legal counsel, to help make informed decisions on an offender’s progress.
The Wisconsin Code of Judicial Conduct does little to address that unique communication requirement, which is why a petition pending before the state Supreme Court looks to clarify the dual role of judges in treatment courts.
On Wednesday, the justices are scheduled to hold a public hearing on a proposal to expand the judicial code and allow judges to “initiate, permit, engage or consider ex parte communications,” in treatment courts.
“The biggest ethical problem is the court acting on information that may not be accurate,” Milwaukee County Circuit Court Judge Joe Donald said, “and then taking the drastic step of revoking someone from the program or imposing a sanction with inaccurate information.”
As the first Drug Treatment Court judge in Milwaukee when the program launched in 2009, Donald said the role required flexibility he hadn’t been accustomed to on the bench. That included candid conversations with treatment court enrollees outside the courtroom, to gauge their dedication to the program and get a sense of their background. That wasn’t something Donald experienced in traditional cases.
“When those situations did arise where I felt a little uncomfortable,” he said, “I would at least make an attempt to get the parties on the phone and say, ‘This is what I’m being presented with,’ to give them an opportunity to respond.”
Treatment court participants and attorneys are required to sign a waiver acknowledging that the judge will have the ability to talk with offenders, prosecutors and defense attorneys independently, as the need arises.
But it is a fine line judges walk to be impartial and also contributes to a defendant’s success in the program, said Dane County Drug Court Judge John Markson.
“One of the challenges is maintaining independence,” he said, “in light of the fact that we function as a team.”
Ways Markson said he attempts to avoid the perception of bias is to discontinue team meetings if there is potential of termination from the program. And if that is the case, Markson said he will get another judge to issue a sentence.
“If there is some very significant program violation, the state may move to terminate,” he said, “and then our discussion as a team ends and I hear the evidence in court.”
Mike Tobin, Deputy State Public Defender, said nobody in his staff has ever complained about the ethics of judges in treatment court cases.
But he acknowledged that not every one of the 46 treatment courts in Wisconsin is run the same and an ethics rule would provide some uniformity in the process.
“There is a lot of variation,” Tobin said. “Sometimes, participants who don’t succeed are more comfortable in front of the judge who learned about their addiction, than a separate judge.”
Having a clearly defined ethics rule could also eliminate any doubt in judges’ minds about the extent of their communication with participants in the program, he said.
The proposed rule would not result in any loss of rights by the treatment court participant and keep participation voluntary.
“It may make some judges more comfortable,” he said, “especially those who had reservations, and a rule could spur expansion of treatment courts.”
Donald has since rotated out of Drug Court, but if he ever returns he said having a defined ethical rule would be comforting.
During his tenure, Donald said he always tried to keep attorneys, the treatment providers and the participant in the loop whenever he had conversations outside of the courtroom.
On several occasions those discussions centered on a false positive or negative test by a participant and a need by Donald to talk with the individual about the results to determine if there had been tampering.
He said the advantage of being able to talk with the person directly is it gave the court an opportunity to respond and assess the accuracy of the information a little quicker, than waiting for a court date.
“As a judge, I had been used to just sitting back and having this information brought to me,” Donald said. “So it was kind of refreshing to be able to roll up my sleeves and get a little deeper into what was going on.”