Michigan Supreme Court
Lansing, Michigan 48909
___________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan
Opinion
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED MAY 30, 2001
In re HONORABLE WARFIELD MOORE, JR.,
Judge of the Third Circuit Court,
Detroit, Michigan.
No. 112416
____________________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
The Judicial Tenure Commission filed Formal Complaint No.
58 against the Honorable Warfield Moore, Jr., Third Circuit
Court judge, on June 12, 1998.1 Pursuant to an agreement
reached between the examiner for the commission and Judge
Moore in November 1999, the allegations of misconduct set
forth in paragraphs 1 through 17 of the complaint were
dismissed with prejudice. Further, the parties agreed that a
public hearing on the remaining allegations contained in
paragraphs 18 through 25 of the complaint would be held before
the full nine-member commission rather than the appointed
master. This hearing occurred on March 13, 2000. On July 18,
1
The commission was established by Const 1963, art 6,
§ 30.
2000, the commission issued its decision regarding misconduct,
finding that Judge Moore had committed various instances of
misconduct.2 In its recommendation for order of discipline,
filed October 10, 2000, the commission recommended that Judge
Moore be suspended for nine months without pay.
On de novo review,3 we conclude that Judge Moore
committed misconduct. However, we disagree that a nine-month
suspension is warranted. Instead, we order Judge Moore
suspended for six months without pay.
I
The allegations that form the basis of the commission’s
findings of misconduct and recommendation of discipline stem
from incidents occurring during eight separate criminal cases
over which Judge Moore presided, spanning the years 1994
1997.4 The commission made the following factual findings in
relation to each case.
A
Paragraph 18 of the complaint concerns People v White,
Recorder’s Court Case No. 94-3885. The defendant in this
matter was charged with first-degree murder and possession of
2
Although the decision regarding misconduct was issued
on July 18, 2000, it was not filed until October 10, 2000.
3
In re Seitz, 441 Mich 590, 594; 495 NW2d 559 (1993); In
re Bennett, 403 Mich 178, 184; 267 NW2d 914 (1978).
4
Six of the trials occurred in the Detroit Recorder’s
Court, which later became part of the Third Circuit Court.
Judge Moore was first elected to the Detroit Recorder’s Court
in 1979.
2
a firearm during the commission of a felony.5 The commission
found six instances of misconduct arising from this case.
First, the commission determined that Judge Moore created
sympathy for the victim when, during jury selection, he
compared the “viable” defendant with the murder victim,
stating:
Ladies and gentlemen, you are going to to
[sic] meet shortly the defendant in this matter.
He is a very viable individual. Meaning he is
alive and well like you and I. He walks and talks
and sleeps and eats and does all of the other
function[s] that live human beings are wont to do.
However, ladies and gentlemen, it is, there is an
allegation that one Ronald Pemberton, Jr.[,] is no
longer alive because it is alleged that he was shot
to death, I believe, by the defendant
premeditatedly, designedly. And obviously, you
won’t see or hear him, from him in terms of seeing
or hearing from him, ladies and gentlemen.
Second, in response to a prospective juror’s comments
that he was biased against the prosecution because his brother
had been convicted of carrying a concealed weapon, Judge Moore
asked the juror to explain how he would demonstrate his bias,
stating, “How would you do it? When you leave here, hiss or
boo at her [the prosecutor]?”6 When this juror was dismissed
for cause, Judge Moore made the following remark:
5
The defendant was convicted of second-degree murder and
felony-firearm. The Court of Appeals reversed the defendant’s
conviction and remanded for a new trial, finding that the
trial court’s behavior had denied the defendant a fair trial.
Unpublished opinion per curiam, issued July 1, 1997 (Docket
No. 182605). This Court peremptorily reversed and reinstated
the defendant’s convictions for the reasons stated by the
dissenting Court of Appeals judge. 457 Mich 864 (1998).
6
The commission’s findings of fact do not quote Judge
Moore exactly, stating that he asked, “‘How would you show
your bias’ when you leave here, hiss or boo at [the
prosecutor]?”
3
Of course, now, when anybody is out there with
a gun and wants to use it, you tell them, come and
see brother Nunley [the dismissed prospective
juror]. He understands that. He understands you
having a gun and putting it to his head.[7] I
couldn’t quite get with it myself. But different
strokes for different folks, I guess.
Third, the commission found that a hypothetical example
given by Judge Moore during jury selection, which named the
defendant and was modeled on the facts of the case, improperly
encouraged the prospective jurors to find the defendant
guilty.
Fourth, the commission found that Judge Moore had
commented spontaneously on the defendant’s personal interest
in the case and the effect of his interest on his credibility.
Fifth, the commission determined that Judge Moore had
improperly interjected himself into the proceedings in a
manner favorable to the prosecution by asserting an objection
to the defense counsel’s leading question and criticizing the
prosecutor for failing to do so. Further, Judge Moore
commented that the defense counsel was asking for conclusions
that were really up to the jury to make.
Sixth, the commission found that Judge Moore unfairly
criticized the Court of Appeals during sentencing when he
stated in part:
Because I say, and I am going to put this on
whether the Court of Appeals likes it or not. See,
Court of Appeals, a lot of you folks up there who
are white and middle class, you don’t know. You
7
When asked during jury selection whether he had been
the victim of a crime, the dismissed juror explained that
someone had put a gun to his head. He further indicated that
one of his friends was hospitalized, having been robbed at
gunpoint and shot.
4
don’t have relatives who live in the ghetto. You
don’t have black relatives who live in the ghetto
who are trying to get over who are not that way.
So you may think what I am saying, you shouldn’t
interject that. I have to, because that is where I
come from. That is where I go to. These are the
People I talk to.[8]
B
The two allegations in paragraph 19 of the complaint stem
from People v Eklour, Recorder’s Court Case No. 94-4189. The
defendant was accused of attempting to defraud an insurance
company by falsely claiming that his business was robbed. The
defendant was acquitted.
The commission determined that Judge Moore would not
permit defense counsel to assert objections or make a record
and that he made derogatory comments toward counsel in the
presence of the jury. Further, the commission found that
during a trial recess, when the court was off the record,
Judge Moore commented to the prosecutor that the only reason
he wanted to cross-examine the witness is because she was not
wearing a bra.
C
The incidents on which the allegations of paragraph 20 of
the complaint were based occurred during People v Payton,
Recorder’s Court Case No. 95-006206. The defendant, who was
charged with first-degree murder, was acquitted. The
commission found six instances of misconduct during this
matter.
8
Just before this comment, Judge Moore indicated that he
resented the “thought that because you are black and you live
in the ghetto you are fashioned that way.”
5
First, the commission found that Judge Moore ridiculed a
prospective juror, who did not think that he could sit on a
jury because he had a difficulty with memory, by
mispronouncing the juror’s name and joking with him about
whether he could remember his name or where he worked.
Second, the commission determined that Judge Moore, for
no apparent reason, inquired about whether a potential juror
used drugs, asking her when she had last “smoked a joint or
something.”
Third, the commission found that Judge Moore had become
argumentative with defense counsel after the attorney
attempted to explain the basis for a particular line of
questioning. Judge Moore instructed counsel that he should
not whine and cry, and stated that he sounded like “a little
spoiled kid.” The jury was not present when this exchange
occurred.
Fourth, the commission determined that Judge Moore had
deferred his role as judge to the prosecutor by inviting the
prosecutor to join in a disagreement with defense counsel,
asking the prosecutor to explain if he [Judge Moore] was in
error some way. This exchange also occurred outside the
presence of the jury.
Fifth, the commission found that Judge Moore made a
prosecutorial objection and ordered defense counsel to proceed
with another question without permitting defense counsel to
respond to the objection or to Judge Moore’s statement
concerning another objection asserted by the prosecutor.
Sixth, the commission determined that after the jury
6
acquitted the defendant, Judge Moore insinuated that he
believed that the defendant was culpable, and after the jury
was excused, chastised the defendant.
D
The allegations set forth in paragraph 21 of the
complaint arose during People v Ford, Recorder’s Court Case
No. 95-08616. The defendant was charged with arson of a
dwelling and as being an habitual offender. He was convicted
by the jury.9 The commission determined that this case gave
rise to seven instances of misconduct.
First, Judge Moore made the following comment when a
witness from the Detroit Fire Department was excused:
No, all right. He says he’s finished with you
Lieutenant. Thanks for coming. You’re free to
leave. Go back and fight some more fires. Don’t
do like my man, don’t light no fires, fight your
fires.
Second, the commission found that Judge Moore advised an
eight-year-old boy who testified10 that if anyone should try
to chastise him about testifying, he should tell them to see
Judge Moore.
Third, the commission found that Judge Moore objected to
defense counsel’s questioning the defendant’s ex-wife about
whether she paid rent to the defendant, with whom she lived
9
The Court of Appeals reversed the defendant’s
conviction, finding that the defendant had been denied a fair
trial by Judge Moore’s comments during trial. Unpublished
opinion per curiam, issued December 1, 1998 (Docket No.
195964).
10
The eight-year-old boy was the defendant’s son. He
testified that he observed the defendant set the fire to the
house in which his (the witness’) mother, who was the
defendant’s ex-wife, lived.
7
for a short time, finding the question “irrelevant,
incompetent, immaterial.”
Fourth, the commission determined that Judge Moore
improperly suggested evidence to the jury when he advised the
jury, during cross-examination of the defendant’s ex-wife,
when school started in 1995. The witness could not recall
when school began that year, and Judge Moore stated that his
wife was a school teacher and that he believed school began in
August of that year. At the end of his explanation, he
instructed the jury not to “take it as testimony.”
Fifth, the commission found that the following statement,
made outside the presence of the jury, indicated that Judge
Moore had reached a conclusion about the testimony of a
witness and the guilt of the defendant:
Come on. I mean, Jesus, I mean, how did he
know what was in the gas can when he stuck the
paper in and lit it afire? I mean, for real.
Sixth, the commission found that after the verdict was
rendered, Judge Moore commented three times that the defendant
should have entered a plea to avoid requiring his eight-year
old son to testify. Two of these comments were made in the
presence of the jury, and one was made after the jury was
excused.
Seventh, the commission found that Judge Moore berated
the defendant during sentencing, calling him a “low life,” “a
despicable person,” and the “meanest man” he had seen all
year.
E
Paragraph 22 of the complaint concerned People v
8
Anderson, Recorder’s Court Case No. 95-012333. The defendant
was charged with first-degree murder and felony-murder. The
jury convicted the defendant of second-degree murder.11 The
commission determined that four instances of misconduct
occurred during this case.
First, the commission found that during voir dire, Judge
Moore discoursed about how “ugly people” are not liked and how
being “cute” helps you get along in the world.
Second, the commission found that during voir dire, Judge
Moore commented that an insurance company must be “out of
their sick mind” for refusing to provide coverage. This
comment was made in response to explanation from a potential
juror who had been a victim of a crime that the crime was not
prosecuted because of a lack of evidence and that insurance
would not provide coverage.
Third, the commission determined that Judge Moore
spontaneously asserted an objection and summarized the prior
testimony of a witness. Judge Moore failed to acknowledge
defense counsel’s point that it was the prosecutor’s role to
object and then proceeded to question the witness.
Fourth, the commission found that the following exchange,
which occurred between Judge Moore and the defendant’s
11
The Court of Appeals affirmed the defendant’s
conviction, holding in part that the trial court’s conduct and
comments did not amount to manifest injustice. The Court
explained that many of the remarks constituted a legitimate
exercise of the trial court’s responsibility to control
proceedings and that the remaining remarks were not the type
that would unduly influence the jury, depriving the defendant
of a fair trial. Unpublished opinion per curiam, issued
February 3, 1998 (Docket No. 195911).
9
girlfriend when he addressed her regarding her improper
discussions with two jurors, was misconduct:
The Court: Come on out here. Now, listen.
You may think you all cute and everything because
you’re not cute worth a rip of anything.
I’m going to send you home and I’m not going
to allow you back.
Look at me.
You understand that?
Ms. Smith: Yes.
The Court: How old are you?
Ms. Smith: Nineteen.
The Court: Nineteen. Well, you take you and
them 19 years and you–how many babies you got
without a husband?
Ms. Smith: One.
The Court: Well, take your 19 years and that
one baby and you stay at home.
I don’t want you down here tomorrow, you
understand. You show up here tomorrow and you’re
going to spend the rest of the 29 days in jail.
You look at me.
You understand what I’m saying?
Ms. Smith: Yes.
The Court: You think I’m kidding with you?
Ms. Smith: No.
The Court: Yes. And if you say anything to
anybody, if you stand out front, if I see you
anywhere around this courtroom–look at me–you will
be going to jail.
You understand that?
Ms. Smith: Yes.
The Court: If you want to know what the
verdict is, you call back here.
10
Now, you go home.
Give her her Social Security Card.
Ms. Smith: Thank you.
The Court: Only thing she ever had with her
name typed on it probably besides a welfare check
probably.
Ms. Smith: I work.
The Court: I know you work.
F
People v Holmes, Recorder’s Court Case No. 96-00101,
formed the basis for the allegations in paragraph 23 of the
complaint. The defendant was charged with two counts of armed
robbery and two counts of felony-firearm and was convicted on
all counts.12 The commission made six findings of misconduct
in relation to this case.
First, the commission found that Judge Moore excessively
interfered and improperly questioned witnesses to the
detriment of the defense.
Second, the commission determined that Judge Moore made
various objections to defense counsel’s questioning of
witnesses throughout the trial.
Third, the commission found that on three occasions,
Judge Moore interrupted the examination of witnesses and
summarized testimony on his own initiative.
12
The Court of Appeals affirmed the defendant’s
convictions, finding that the trial court’s interruptions and
criticisms of defense counsel did not deprive defendant of a
fair trial because his behavior did not pierce the veil of
judicial impartiality. However, the Court further explained
that it did not condone and, in fact, seriously questioned the
trial court’s condescending attitude. Unpublished opinion per
curiam, issued November 14, 1997 (Docket No. 198450).
11
Fourth, the commission found that Judge Moore was
argumentative with defense counsel and that he prohibited both
the prosecutor and defense counsel from addressing certain
issues. Further, he was abusive and sarcastic toward counsel.
Fifth, the commission determined that Judge Moore made
inappropriate remarks concerning the Detroit Free Press and
other judges from the Recorder’s Court. In response to a
juror’s question whether Judge Moore had read an article on
someone Judge Moore had mentioned, Judge Moore responded that
he did not “read the scab rag, I haven’t read it since they
went on strike.” In explaining the reason for a brief delay,
Judge Moore stated:
And we’re happy to have you back again.
Again, I apologize for the 15 minutes or so delay,
but we’re still in the picture-taking. We take
individual pictures, we take individual things, we
take group pictures, and there’s nothing like
getting . . . Getting all judges together is like
getting the United Nations together, everybody’s a
king, you know what I mean, and nobody tells the
king what to do. And especially if they’re queens.
What do you mean? Would you . . . And don’t mess
with these queens, you talk about stinging you to
death. Anyway so I apologize once again.
Sixth, the commission found that at sentencing, Judge
Moore made stereotypical comments on the basis of race:
I mean, there were two women who identified
him pretty good and their circumstances led right
on down to getting him. This is not some white
women out there who think that all black men look
alike or Chinese women. They are black women who
got a good look at him while he was poking his gun
at ‘em and taking their coats and so forth, and so
there’s no . . . they do not seem to have any kind
of special grievance against your client.
G
The allegations in paragraph 24 of the complaint were
12
based on Judge Moore’s conduct during People v Johnson and
Brock, Wayne Circuit Court, Criminal Division Case No. 97
03614. Each defendant was charged with assault with intent to
rob while armed and felony-firearm. Defendant Johnson was
also charged with assault with intent to commit murder.13 The
commission made eight findings of misconduct in this case.
First, the commission found that Judge Moore questioned
witnesses in a manner favorable to the prosecution. Judge
Moore interrupted defense counsel’s questioning of a witness
concerning lineup procedures and then discussed the difference
between refreshed recollection and past recollection recorded
for the benefit of some students who were observing the trial.
Further, Judge Moore interrupted defense counsel and
questioned a witness regarding the reading of rights to
defendant Brock.
Second, the commission determined that Judge Moore made
objections during defense counsel’s questioning of witnesses,
summarized prior testimony of a witness, and discussed the
anticipated testimony of other witnesses.
Third, the commission found that Judge Moore improperly
limited defense counsels’ presentation of their case by
summarily determining that the anticipated testimony of a
witness they wished to call was not relevant to the trial and
prohibiting the witness from being called. The commission
13
The Court of Appeals reversed defendant Johnson’s
convictions for assault with intent to rob while armed,
felonious assault, and felony-firearm because it determined
that the trial judge’s conduct deprived the defendant of a
fair trial. Unpublished opinion per curiam, issued July 21,
2000 (Docket No. 210699).
13
believed that this action indicated that Judge Moore “was more
concerned with the length of the trial than with providing
defense counsel with a full opportunity to present its case.”
Fourth, the commission determined that Judge Moore made
an abusive remark to counsel when he stated that the attorneys
sounded like “a bunch of old women,” who didn’t know the Rules
of Evidence.
Fifth, the commission found that Judge Moore summarized
the subject matter of the testimony that he believed the
attorneys intended to pursue and berated counsel rather than
discussing the necessity of the anticipated testimony.
Sixth, the commission determined that Judge Moore raised
his voice at defendant Johnson while he was testifying. The
following exchange ensued when defense counsel objected:
Mr. Lusby (defense counsel): Excuse me, Your
Honor.
The Court: Yes, what is it sir?
Mr. Lusby: My objection really goes to the
Court, inadvertently I assume, but, you know, my
client . . .
The Court: What?
Mr. Lusby: Raised your voice at my client.
The Court: I’m a raise voice person, sir.
Mr. Lusby: Judge, I understand that.
The Court: Well, fine, sir. I’m not telling
him to do anything wrong. I’m just telling him to
realize . . . Listen, I want to get this case over
with, gentlemen.
Mr. Lusby: Judge, listen to yourself now,
please.
The Court: I’m listening to myself and I’m
listening to you too.
14
Mr. Lusby: Okay, okay.
The Court: Just want to get this case over.
Mr. Lusby: Okay.
The Court: You can scream all you want. Now
you gonna cry. Sit down, Mr. Lusby.
Mr. Lusby: I need some water.
The Court: I can’t believe this. Crying. Ask
your question, sir. Let him get his water.
Sir, listen to the question. Answer the
question that is asked of you, please, so we can
get on with this case. Carry on, Mr. Prosecutor.
Now, I’m gonna tell you something, Ladies and
Gentlemen, and I want you . . . If you think that I
am screaming and hollering, whatever, then you note
it. Part of this, see, is to build this record so
that when it goes to the Court of Appeals, if it
ever gets there, gonna say well, Judge, you sat
there screaming at my client. I don’t believe I’ve
talked to this man any different than I’ve talked
to anyone else. If so, you tell me, have I? Have I
talked to this man any different than I have?
Well, that’s my intent is not to talk to him any
different than anybody else. Just get this case
over with.
Seventh, the commission determined that the following
exchange occurred between Judge Moore and defendant Brock’s
father, who was a Detroit police officer, when Mr. Brock left
the courtroom during sentencing:
The Court: Listen, Lieutenant . . . Hey, tell
him to come back here. Your father can think
whatever he wants about it. He can jump up and do
whatever he wants there if he doesn’t like it. I
don’t like his attitude. Just because he . . .
That’s part of the problem that’s involved. Go out
there, tell ‘em if he’s out there, tell ‘em I’m
ordering him as a police officer to come back in
here.
* * *
Sir, you have a seat here, lieutenant, or
whatever rank you are. I don’t like your attitude,
sir. You as an officer, you are a police officer,
15
sir, you come into this court, you treat this court
with respect. You understand me, sir? Stand up,
sir, stand up. You understand me?
Mr. Brock: Yes, sir.
The Court: Well, now you walk out of here. I
didn’t create this situation. I don’t know if you
did or not. He’s been your son all your life. All
I know is that the jury . . . He had a good trial
with a good lawyer and a good verdict, sir, and
he’s going to jail. And I don’t need to have your
arrogance, sir.
Mr. Brock: Do I have a right to walk out?
The Court: You have a right to walk out of
here, sir. But you have a right also, you, sir,
have to respect this Court of all people.
Mr. Brock: I respect the Court.
The Court: Okay then. You just leave here
with the respect that you deserve this court. And
I don’t need any of your side glances either, sir.
You took care of ‘em all your life. If he’s bad,
it’s your problem.
Eighth, the commission found that Judge Moore was also
abusive when he sentenced defendant Johnson during a separate
proceeding immediately thereafter.
H
The allegations contained in paragraph 25 of the
complaint were based on People v Turner, Wayne Circuit Court,
Criminal Division Case No. 97-2664. The defendant was charged
with attempted home invasion and as an habitual offender. He
chose to represent himself during trial, with his appointed
attorney available to act as his legal advisor. The jury
convicted the defendant.14 The commission made eleven findings
14
The Court of Appeals reversed the defendant’s
conviction, finding that the trial court’s conduct of
repeatedly gagging the defendant in the presence of the jury,
(continued...)
16
of misconduct in this matter.
The first five findings of the commission concern threats
made by Judge Moore to gag the defendant and his ordering
defendant to be gagged with tape at various points during the
trial.
Next, the commission found that during the pretrial
conference, Judge Moore made disparaging remarks to the
defendant when he inquired about obtaining relief because he
had been imprisoned since March. Judge Moore stated:
What kind of relief? You better go over there
and get you an aspirin or Alka Seltzer or maybe
some Kaopectate ‘cause that’s the only relief
you’re getting. We’ll see you when you get back
here the 13th.
Third, the commission found that Judge Moore insulted the
defendant when the defendant offered to hand him the questions
he had mapped out by replying, “I don’t need you to hand me
anything, diddley boy. My boy, just read what you have.”
Fourth, the commission determined that Judge Moore almost
immediately thereafter made another derogatory remark,
directing the defendant to shut up and telling him that he had
“diarrhea of the mouth.”
Fifth, the commission found that Judge Moore directed
other derogatory remarks toward defendant, calling him a “low
life” and a “rat,” and inferring that the defendant knew how
to commit break-ins by commenting, “Why don’t you [defendant]
14
(...continued)
making disparaging remarks, and assuming an adversarial
posture toward the defendant deprived him of a fair trial.
Unpublished opinion per curiam, issued October 29, 1999
(Docket No. 208790).
17
ask a question. You know a lot more about it apparently than
some of the rest of us”15 when the defendant attempted to
question complainant about pulling iron bars off a window.
Sixth, the commission found that Judge Moore frequently
interjected during the defendant’s presentation of his
defense, displaying an antidefense sentiment with his abrasive
manner and repeated interruptions.
Seventh, the commission determined that Judge Moore took
over the questioning concerning the location of the crime.
Eighth, the commission determined that Judge Moore
instructed the prosecutor to object.
II
The commission made the following conclusions of law,
stating that the conduct identified in its findings of fact,
individually and collectively, constituted one or more of the
following:
(1) Misconduct in office, as defined by the
Michigan Constitution of 1963, as amended, Art. 6,
§ 30, and MCR 9.205;
(2) Conduct clearly prejudicial to the
administration of justice, as defined by the
Michigan Constitution of 1963, as amended, Art. 6,
§ 30, and MCR 9.205(C)(4);
(3) A persistent incompetence or
neglectfulness in the performance of judicial
duties, contrary to MCR 9.205(C)(5);
(4) A persistent failure to treat persons
fairly with courtesy and respect[,] pursuant to MCR
9.205(C)(6);
(5) Treatment of persons unfairly,
15
In its decision regarding misconduct, the commission
inaccurately quotes Judge Moore as saying “Why don’t you (Mr.
Turner) answer the question.”
18
discourteously, or disrespectfully because of race,
gender or other protected personal characteristic,
contrary to MCR 9.205(C)(7);
(6) A failure to observe high standards of
conduct so that the integrity and independence of
the judiciary may be preserved, contrary to the
Code of Judicial Conduct, Canon 1;
(7) Conduct involving impropriety and the
appearance of impropriety, thereby eroding public
confidence in the judiciary, in violation of the
Code of Judicial Conduct, Canon 2A;
(8) A failure to respect and observe the law
and to conduct oneself at all times in a manner
which would enhance the public’s confidence in the
integrity and impartiality of the judiciary,
contrary to the Code of Judicial Conduct, Canon 2B;
(9) A failure to be patient, dignified and
courteous to a juror, in violation of the Code of
Judicial Conduct, Canon 3A(3);
(10) A failure to be patient, dignified and
courteous to litigants, lawyers and others with
whom Respondent dealt in an official capacity,
contrary to the Code of Judicial Conduct, Canon
3A(3);
(11) Undue interference, impatience and
participation in the examination of witnesses;
demonstrating a severe attitude toward witnesses;
tending to prevent proper presentation of the cause
and ascertainment of the truth; failure to avoid a
controversial manner and tone in addressing
counsel, litigants and witnesses; failing to avoid
interruptions of counsel in their arguments; and
reaching a premature judgement, in violation of the
Code of Judicial Conduct, Canon 3A(8);
(12) Non-adherence to the usual and accepted
methods of doing justice, contrary to the Code of
Judicial Conduct, Canon 3A(9); and
(13) Failure to treat every person fairly,
with courtesy and respect, without regard to a
person’s race, gender or other protected personal
characteristic, contrary to the Code of Judicial
Conduct, Canons 2B and 3A(10).
III
The commission recommended that Judge Moore be suspended
19
for nine months without pay. The commission explained that
this recommendation was based on the collective acts of Judge
Moore throughout his judicial career, noting that he had
received two admonitions and a public censure.16 The first
admonition, which was issued May 22, 1986, arose from five
criminal proceedings. Judge Moore was admonished for
“displaying obvious sarcasm,” demonstrating “a predisposition
[for] the guilt of the defendants,” “inappropriately
expressing sympathy for complainants in criminal cases,”
“disparaging” defense counsel and denigrating an attorney’s
professional ability, and improperly treating a witness with
“discourtesy, impatience, and a severe attitude.” Judge Moore
was again admonished on September 7, 1989, for having a
private conversation with a police detective during a trial in
which the detective was a witness. Judge Moore was publically
censured in 1995 for causing a disturbance in the Chief
Judge’s courtroom while the Chief Judge was conducting a court
proceeding. Further, the commission noted that Judge Moore
had been reversed or criticized on appeal numerous times for
16
The November 1999 agreement between the examiner and
Judge Moore limited the misconduct allegations to the eight
criminal cases discussed in parts I (A)-(H) of this opinion.
The commission’s findings of fact and conclusions of law were
limited to the eight cases in the complaint as the agreement
provided. This Court’s review of the commission’s findings of
fact and ultimate finding of misconduct involves only the
events in those eight cases and not the past behavior of Judge
Moore discussed in part III of this opinion. However, the
commission did not err in considering Judge Moore’s past
behavior in its sanction determination. His past behavior is
relevant. Moreover, the agreement did not prohibit
consideration of that behavior for that purpose.
20
his conduct.17
While discussing the standards to be considered in making
a recommendation for discipline, the commission noted that the
purpose of judicial discipline is not to punish but to
maintain the integrity of the judicial process. The
commission then examined the factors from In re Deming18 that
this Court cited in its order in In re Brown19 and applied them
to the present case.20 Considering each factor, the commission
stated as follows:
(a) Respondent’s misconduct is not an isolated
instance. It represents a pattern of misconduct
continuing throughout Respondent’s career and
resulting in admonitions, public censure, and
repeated criticisms and reversals by reviewing
courts. Respondent was warned repeatedly that his
conduct was improper. He cannot justifiably assert
ignorance of the error of his ways. He has failed
17
The commission attached as an appendix to its
recommendation a brief summary of thirty-one appellate cases
issued between April 1983 and February 2000 that criticized
Judge Moore’s conduct.
18
108 Wash 2d 82; 736 P2d 639 (1987).
19
461 Mich 1291, 1292-1293 (2000).
20
The factors considered are:
(a) whether the misconduct is an isolated instance
or evidenced a pattern of conduct; (b) the nature,
extent and frequency of occurrence of the acts of
misconduct; (c) whether the misconduct occurred in
or out of the courtroom; (d) whether the misconduct
occurred in the judge’s official capacity or in his
private life; (e) whether the judge has acknowledge
or recognized that the acts occurred; (f) whether
the judge has evidenced an effort to change or
modify his conduct; (g) the length of service on
the bench; (h) whether there have been prior
complaints about this judge; (i) the effect the
misconduct has upon the integrity of and respect
for the judiciary; and (j) the extent to which the
judge exploited his position to satisfy his
personal desires. [Deming, supra at 119-120.]
21
to acknowledge the criticisms were valid and has
failed to alter conduct.
(b) Respondent’s egregious conduct included
abusive, berating, and sarcastic remarks; excessive
interjections and interference in trial
proceedings; assuming a prosecutorial role;
expressing pro-prosecutorial and anti-defense
sentiment; prejudicing juries; and lack of judicial
demeanor. The improper acts were frequent, as
reflected by the numerous cases cited in the
attached appendix. In some instances, his conduct
directly resulted in reversals of convictions of
criminal defendants, although as the Court of
Appeals specifically noted, there was sufficient,
strong, or even overwhelming evidence of a
defendant’s guilt. People v Williams, Michigan
Court of Appeals Docket Number 83920, April 16,
1986; People v Lippett, Michigan Court of Appeals
Docket Number 153716, March 23, 1994; People v
Ford, Michigan Court of Appeals Docket Number
195964, December 1, 1998.
(c) All incidents of misconduct in the present
complaint, except one, occurred in the courtroom
while court was in session. The exception occurred
in the courtroom during a recess when a few
individuals were present. Many incidents were in
the presence of the jury.
(d) All acts of misconduct occurred in his
official capacity and not in his private life.
Therefore, all acts were open to public view.
(e) Except for the comment concerning a
witness who supposedly was not wearing a bra,
Respondent does not dispute the underlying facts.
Respondent has repeatedly denied that any of the
acts constitute misconduct. With the benefit of
hindsight, Respondent acknowledged at the Formal
Hearing on March 13, 2000, that a few of his
comments could or possibly should have been worded
differently.
(f) Respondent has made no noticeable effort
to change or modify his conduct. He received
warnings from the Commission and the Court of
Appeals and has ignored them. Respondent once
expressed a desire to avoid having the Examiner, or
the Commission, “coming back at” him and “to avoid
a problem” in the future. However, he denied that
the specific conduct that was the subject of his
statement was “wrong. . . .”
The Commission acknowledges that, in his
22
sanctions brief, Respondent expressed regret. He
admits that several of his comments “were
inappropriate or ill timed or spoken without
thinking, or at the very least, in the limited
context presented, do now upon reading or hearing
appear to be unacceptable.” For those statements
he made a “heartfelt and sincere apology.” The
Commission notes this attempt at damage control
follows a finding that Respondent had engaged in
serious and continued acts of misconduct.
(g) Respondent has served on the bench for
approximately 20 years. Considering his experience
and frequent criticisms and reprimands, he should
know the requisite standards. He has failed to
adhere to the directives of the Commission or alter
his conduct in response to criticisms by reviewing
courts. Respondent has repeatedly violated those
standards.
(h) There have been many prior complaints
regarding Respondent as reflected in prior
disciplinary proceedings and appellate criticism
detailed above.
(i) Respondent’s conduct has tainted the
integrity of and respect for the judiciary. His
abusive comments and demeaning nature have a great
negative impact upon members of the public with
infrequent exposure to the courts. That other
judges typically strive to maintain an unbiased,
professional, courteous and dignified manner while
on the bench is lost to those whose experience is
limited to encounters with Respondent in his
courtroom.
(j) There is no charge that Respondent abused
his office for personal gain or to satisfy personal
desires.
The commission then considered the mitigating and
aggravating factors in reaching its recommendation. In
addressing the mitigating factors, it noted that Judge Moore
had been a “diligent jurist during his 20 years on the bench”
and recognized that he often means well. Further, it noted
that he had been transferred to the civil division, where he
would likely encounter “fewer examples of the darker side of
human conduct.” In considering aggravating factors, the
23
commission stated that Judge Moore “frequently has failed to
distinguish his role as an impartial arbitrator with that of
a quasi social worker and partisan advocate.” Because no
previous discipline, criticism, or reversal by a higher court
had altered his conduct in anyway, and because he had
occasionally expressed disdain for the commission and the
Court of Appeals, the commission opined that a significant
sanction was required.
IV
The Michigan Constitution provides:
On recommendation of the judicial tenure
commission, the supreme court may censure, suspend
with or without salary, retire or remove a judge
for a conviction of a felony, physical or mental
disability which prevents the performance of
judicial duties, misconduct in office, persistent
failure to perform his duties, habitual
intemperance or conduct that is clearly prejudicial
to the administration of justice. The supreme
court shall make rules implementing this section
and providing for confidentiality and privilege of
proceedings. [Const 1963, art 6, § 30(2).]
Pursuant to rules promulgated by this Court, when considering
a recommendation of the commission, this Court
shall review the record of the proceedings and
shall file a written opinion and judgement, which
may direct censure, removal, retirement,
suspension, or other disciplinary action, or reject
or modify the recommendations of the commission.
[MCR 9.225.]
In reviewing the record de novo, we consider whether the
conduct charged and found by the commission is established by
the record, whether the conduct is of a nature warranting
discipline, and whether the discipline recommended by the
commission or some other form of discipline should be imposed.
In re Seitz, 441 Mich 590, 594; 495 NW2d 559 (1993).
24
MCR 9.205(A) provides that a “judge is personally
responsible for his or her own behavior and for the proper
conduct and administration of the court in which he or she
presides.” Further, a judge is guilty of misconduct in office
if:
(1) the judge is convicted in the United
States of conduct which is punishable as a felony
under the laws of Michigan or federal law;
(2) the judge persistently fails to perform
judicial duties;
(3) the judge is habitually intemperate within
the meaning of Const 1963, art 6, § 30;
(4) the judge’s conduct is clearly prejudicial
to the administration of justice;
(5) the judge is persistently incompetent or
neglectful in the performance of judicial duties;
(6) the judge persistently fails to treat
persons fairly, with courtesy and respect; or
(7) the judge treats a person unfairly,
discourteously, or disrespectfully because of the
person’s race, gender, or other protected personal
characteristic. [MCR 9.205(C).]
Conduct in violation of the Code of Judicial Conduct or the
Rules of Professional Responsibility may also constitute
misconduct in office, conduct that is clearly
prejudicial to the administration of justice, or
another ground for discipline listed in Const 1963,
art 6, § 30. The question in every case is whether
the conduct complained of constitutes misconduct in
office, conduct that is clearly prejudicial to the
administration of justice, or another ground of
discipline listed in Const 1963, art 6, § 30, not
whether a particular canon or disciplinary rule has
been violated. All the circumstances are to be
considered in deciding whether action by the
commission is warranted. [MCR 9.205(E).]
V
Judge Moore filed a petition to reject or modify the
25
commission’s recommendation, arguing that the commission’s
findings of fact and conclusions of law were against the great
weight of the evidence, that the commission erred in failing
to dismiss the formal complaint, and that he was denied
procedural due process by the examiner and the commission. We
will address each argument in turn.
A
Judge Moore first argues that the commission’s findings
of fact and conclusions of law are contrary to the great
weight of the evidence. Specifically, Judge Moore disputes
that there was any evidence to support the commission’s
finding in Eklour that he had commented that the only reason
the prosecution wanted to cross-examine a witness was because
she was not wearing a bra. We disagree.
Three witnesses were called during the hearing before the
commission to testify concerning this matter: Corrine Shoop,
George Serkian, and John Bianco. Ms. Shoop, who was an
attorney representing the insurance company the defendant was
accused of defrauding, attended the criminal trial. She
testified that during a break in the trial, she heard Judge
Moore remark to the prosecutor, John Bianco, that the only
reason that the prosecutor wanted to cross-examine the witness
was because she was not wearing a bra and that Judge Moore was
joking and laughing when he made the remark. She further
testified that she did not believe that there was anyone in
the courtroom when the remark was made besides herself, Mr.
Bianco, Judge Moore, and perhaps, a Wayne County sheriff. She
stated that she believed that she discussed the comment with
26
Mr. Bianco. She also filed a grievance with the commission
concerning the remark.21
George Serkian represented defendant Eklour during the
criminal trial before Judge Moore. He testified that he did
not hear Judge Moore make the remark. When asked whether he
was in the courtroom during the recess in which the remark was
made, he responded that if the prosecutor was in the
courtroom, he was in the courtroom. He testified that this
representation was based on both his policy of always being in
the courtroom when the prosecutor is present and his memory.
However, he acknowledged that when he met with the examiner,
he indicated that he had no present recollection of some of
the specific things from the trial about which he was asked
during the meeting.
John Bianco, the prosecutor who tried the Eklour matter,
testified that he “absolutely did not hear that comment.” He
further stated that he had some vague recollection of Ms.
Shoop being upset about something that she thought the judge
had said, but he could not recall any specifics regarding her
concern or their conversation. He vaguely remembered making
a motion to recall the witness.
Having reviewed the testimony, we cannot find any fault
with the commission’s implicit determination that Ms. Shoop’s
testimony was the most credible. Consequently, its finding
that Judge Moore made this remark was not against the great
weight of the evidence.
21
Her grievance also include references to conduct during
the course of the trial.
27
B
Judge Moore next argues that the preponderance of the
evidence fails to support a finding that his comments and
participation in the eight trials constituted misconduct or
conduct prejudicial to the administration of justice and that
the commission erred in failing to dismiss the formal
complaint. Judge Moore alleges that the commission failed to
review the incidents within the full context of the trial
proceedings and that his statements, comments, and questions
are taken out of context. We agree that the larger context of
a few of the remarks calls the commission’s findings
concerning these remarks into question. However, we disagree
that the complaint should have been dismissed because there is
sufficient evidence to sustain the commission’s remaining
findings of misconduct.
Two of the findings that are questionable stemmed from
People v White.22 The commission found that Judge Moore
committed misconduct during jury selection by giving a
hypothetical example that named the defendant and was modeled
on the facts of the case. We think it important to note that
this example occurred during the trial court’s attempt to
distinguish between the quality and quantity of evidence and
an extended discussion concerning whether the jurors would be
able to convict or acquit on the basis of one witness’
testimony or ten witnesses’ testimony. While the trial court
22
This Court peremptorily reversed the Court of Appeals
determination that the trial court’s conduct had denied
defendant a fair trial. See footnote 5.
28
could have more carefully and effectively made this point, we
do not believe that the example, when considered within the
context in which it was made, improperly encouraged the
prospective jurors to find the defendant guilty.
The commission also determined that Judge Moore had
spontaneously commented on the defendant’s personal interest
in the case and the effect it would have on his credibility.
This comment was made during the preliminary instructions to
the jury, as Judge Moore was explaining how to judge the
weight and credibility of the witnesses’ testimony. We
disagree with the commission’s characterization of this remark
as a “spontaneous[]” comment on the defendant’s personal
interest in this case and do not find that it constituted
misconduct.
Another finding that we believe is questionable is the
commission’s determination that in People v Payton, Judge
Moore improperly deferred his role as judge to the prosecutor
by asking the prosecutor if he was in error in some way. See
part II (C). This remark was made during a discussion of
whether one could impeach a witness with something the witness
did not mention in an earlier statement. At the beginning of
this discussion, Judge Moore asked both defense counsel and
the prosecutor to correct him if he was wrong. In the midst
of the discussion, he asked defense counsel to tell him if he
was wrong. Further, it appears that defense counsel may have
partially prevailed in his argument because he was permitted
to question the witness about an “unknown man” mentioned in
his statement. Therefore, we disagree that this remark
29
constituted an instance of improperly deferring to the
prosecution.
The last finding that we question is the commission’s
determination that Judge Moore committed misconduct by
advising the eight-year-old witness who testified that if
anyone gave him difficulties about testifying, he should refer
that person to Judge Moore.23 While, in the future, Judge
Moore should be cognizant of the impression that such actions
might give the jury, we find that Judge Moore’s conduct in
this instance was motivated by his concern for a young child
required to testify against his father concerning a crime the
father committed against the child’s mother. Therefore, we do
not consider these actions to be misconduct for which Judge
Moore should be sanctioned.
Apart from these specific findings that we question, we
hold that there is sufficient evidence to support the
remaining findings of fact made by the commission. Therefore,
the commission did not err in failing to dismiss the formal
complaint.
C
Judge Moore also argues that he was denied procedural due
process by the examiner and the commission. This argument is
premised on five separate allegations.24
23
Judge Moore also commented “I’m gonna love you son”
when he discovered that his wife and the witness shared the
same birthday. He also gave the witness some Tootsie Rolls at
the conclusion of his testimony.
24
Judge Moore actually raises six bases for his due
process argument. However, because the third and sixth bases
(continued...)
30
First, Judge Moore contends that he was denied due
process by the examiner’s unsolicited and premature filing of
a sanctions brief. We determine that this argument is without
merit. There is nothing to suggest that the receipt of the
sanctions brief before the commission’s decision regarding
misconduct improperly influenced the commission in any way.
Further, while the commission and Judge Moore agreed to
dismiss many of the allegations in the complaint and proceed
on the remaining allegations, these other matters were
certainly relevant to determining the appropriate sanction to
be awarded upon a finding of misconduct.
Second, Judge Moore asserts that he was denied due
process by the commission’s failure to consider any of the
eight underlying criminal jury trial transcripts as a whole.
We find that this argument is also without merit. While we
disagree with a few of the commission’s findings because of
the context of the remarks, the complete transcripts from all
eight trials were part of the record considered by the
commission.
Third, Judge Moore argues that he was denied due process
by the commission’s failure to limit the issues considered to
those delineated in the November 1999 agreement.
Specifically, Judge Moore challenges the references to
appellate cases that have criticized Judge Moore because he
had no opportunity to address or refute these other cases. We
disagree that defendant was denied due process by the
24
(...continued)
are related, we have combined them.
31
consideration of these cases in the determination of the
appropriate sanction. Several of the factors we have
identified as relevant in making a recommendation of
discipline refer to previous conduct on the part of the judge,
including whether the conduct is an isolated incident or part
of a pattern; the nature, extent, and frequency of the
conduct, whether there have been prior complaints about the
judge, and whether the judge has demonstrated an effort to
modify his conduct. In re Deming, 108 Wash 2d 82, 119-120;
736 P2d 639 (1987). The commission therefore appropriately
considered these relevant prior matters in its sanction
determination. Nothing in the November 1999 agreement between
the examiner and Judge Moore prohibited consideration of those
matters for purposes of determining the sanction.
The commission’s findings of fact do not support Judge
Moore’s claim that the misconduct determination was
contaminated by consideration of matters outside the complaint
in violation of the November 1999 agreement. The commission’s
findings of fact provide adequate support for both the finding
of misconduct and for the sanction we impose, without taking
into account the prior extraneous matters.
Fourth, Judge Moore contends that he was denied due
process by Judge William Murphy’s participation in the
commission proceedings because Judge Murphy was a member of
the Court of Appeals panel that decided People v Johnson, one
of the eight criminal cases upon which the findings of
32
misconduct in the present matter are based.25 The Johnson
decision was issued on July 21, 2000, three days after the
commission issued its decision regarding misconduct. We note
that paragraph one of the agreement entered into by the
parties specifically provided:
The Examiner and Respondent, through his
counsel, shall stipulate and request that any
members of the Commission who may have previously
recused themselves from participating in any
discussion or decision-making relating to Formal
Complaint No. 58 be relieved of such recusal and
hereinafter participate and vote on all matters.
The Commission’s Decision shall be made pursuant to
MCR 9.221.
Pursuant to this provision, Judge Moore consented to the
participation of all members in all matters. Therefore, we
hold that Judge Moore was not denied due process by Judge
Murphy’s participation in the proceedings.
Fifth, Judge Moore contends that he was denied due
process by the examiner’s attempt to solicit other claims or
grievances against him by way of a letter mailed to an unknown
number of members of the criminal appellate bar. The
commission granted Judge Moore’s motion to restrain the
examiner from soliciting claims and ruled that the examiner
would not be permitted to utilize any of that information
during the hearing.26 Therefore, we conclude that Judge Moore
was not denied due process.
25
The Court of Appeals determined that the trial court’s
conduct in Johnson deprived defendant Johnson of a fair trial
and reversed his convictions.
26
The commission denied the portion of the motion
requiring the examiner to disclose to whom the letter was sent
and any responses received.
33
VI
Having, in our review of Judge Moore’s arguments,
primarily addressed whether the commission’s factual findings
are supported by the record, we now consider whether the
conduct is of a nature warranting discipline and, if so, what
level of discipline should be imposed.
A
The commission determined that Judge Moore’s conduct
violated numerous provisions of the court rules and Code of
Judicial Conduct. We agree with some, but not all, of the
Judicial Tenure Commission’s conclusions of law. In
particular we disagree that Judge Moore’s conduct constituted
“persistent incompetence [and] neglectfulness.”
Specifically, the Code of Judicial Conduct provides that
“[a]t all times, the conduct and manner of a judge should
promote public confidence in the integrity and impartiality of
the judiciary” and that “a judge should treat every person
fairly, with courtesy and respect.” Canon 2(B). Further,
“[a] judge should be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers, and others with whom
the judge deals in an official capacity . . . .” Canon
3(A)(3). Additionally, Canon 3(A)(8) provides:
A judge may properly intervene in a trial of
a case to promote expedition, and prevent
unnecessary waste of time, or to clear up some
obscurity, but the judge should bear in mind that
undue interference, impatience, or participation in
the examination of witnesses, or a severe attitude
on the judge’s part toward witnesses, especially
those who are excited or terrified by the unusual
circumstances of a trial, may tend to prevent the
proper presentation of the cause, or the
ascertainment of truth in respect thereto.
34
Conversation between the judge and counsel in
court is often necessary, but the judge should be
studious to avoid controversies that are apt to
obscure the merits of the dispute between litigants
and lead to its unjust disposition. In addressing
counsel, litigants, or witnesses, the judge should
avoid a controversial tone.
A judge should avoid interruptions of counsel
in their arguments except to clarify their
positions, and should not be tempted to the
unnecessary display of learning or a premature
judgment.
We conclude that Judge Moore’s conduct frequently
violated the Code of Judicial Conduct and demonstrates, on
those occasions, a lack of judicial temperament. While the
incidents vary in severity, and some may ostensibly seem
innocuous, misconduct may be proven by “evidence of an
accumulation of small and ostensibly innocuous incidents
which, when considered together, emerge as a pattern of
hostile conduct unbecoming a member of the judiciary.” In re
Mikesell, 396 Mich 517, 539; 243 NW2d 86 (1976), quoting In re
Kelly, 238 So 2d 565, 566 (Fla, 1970). Judge Moore’s conduct
demonstrates a pattern of persistent interference in and
frequent interruption of the trial of cases; impatient,
discourteous, critical, and sometimes severe attitudes toward
jurors, witnesses, counsel, and others present in the
courtroom; and use of a controversial tone and manner in
addressing litigants, jurors, witnesses, and counsel. This
conduct frequently resulted in appellate reversal of trials
over which he had presided. Such behavior undermines public
confidence in the integrity and impartiality of the judiciary
and is clearly prejudicial to the administration of justice.
Therefore, we conclude the conduct is of a nature that
35
warrants discipline.
B
The commission recommended that Judge Moore be suspended
for nine months without pay. In so recommending, the
commission assessed previous discipline imposed on Judge Moore
and applied the Deming factors cited by this Court in In re
Brown, 461 Mich 1291, 1292-1293 (2000). See part III. We
principally agree with the commission’s analysis of the case
under the Deming factors and that Judge Moore’s history of
such behavior requires a significant sanction. However, we
have disagreed with a few of the findings of misconduct on
which the sanction was based. Further, we agree with the
commission that Judge Moore has been a diligent jurist during
his twenty years on the bench and that he often means well,
even where his judicial behavior has been inappropriate.
Therefore, we modify the commission’s recommendation and order
that Judge Moore be suspended for six months without pay.
Pursuant to MCR 7.317(C)(3), the Clerk is directed to
issue the judgment order forthwith.
CORRIGAN , C.J., and TAYLOR , YOUNG, and MARKMAN , JJ.,
concurred with WEAVER , J.
36
S T A T E O F M I C H I G A N
SUPREME COURT
In re HONORABLE WARFIELD MOORE, JR.,
Judge of the Third Circuit Court,
Detroit, Michigan.
No. 112416
________________________________
CAVANAGH, J. (concurring).
I would not depart from the Judicial Tenure Commission’s
findings of fact and conclusions of law and, therefore, would
impose the recommended sanction, a nine-month suspension
without pay.
KELLY , J., concurred with CAVANAGH , J.