Opinion No. 94-13

May 16, 1994

TOPIC: Judge's testimony before Prisoner Review Board.

DIGEST: A judge should decline to give testimony before the Prisoner Review Board where the judge rendered the sentence on the prisoner up for parole.

REFERENCES: Illinois Supreme Court Rule 63A(6) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R.63).

FACTS

The judge rendered the sentence for which the prisoner is incarcerated. Prisoner is up for parole. Judge was requested by Prisoner Review Board to give testimony at the parole hearing.

QUESTION

May a judge give testimony at the parole hearing?

OPINION

It is suggested that the judge respectfully decline. The purpose of the proceeding is to review the sentence rendered by the judge. The review of the judge's sentencing decision should be through the appellate process.

In addition, Illinois Supreme Court Rule 63A(6) bars a judge from commenting about a pending or impending proceeding in any court. Although it is arguable whether the judge's testimony before the Prisoner Review Board should be construed as entailing a violation of the judge's duty not to publicly comment about a pending or impending case, the Committee observes that it would be prudent for the judge to refuse to give testimony in these circumstances. Any public comment by the judge at a parole hearing could possibly be interpreted as involving an impending proceeding in a court, where those who are incarcerated may, at any time, challenge in the courts their incarceration, e.g., by post-conviction or habeas corpus petitions.