2005-06: Propriety of Judge Writing a Character Reference or Opinion Letter on Behalf of Defendant in a Hearing for Executive Clemency Before the Illinois Prisoner Review Board  

DISCLAIMER:  This Opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023, by the 2023 Illinois Code of Judicial Conduct.  This Opinion does not consider or address whether the 2023 Code affects the analysis or conclusion of the Opinion.  A table cross-referencing the 1993 Code to the 2023 Code can be found at  IJEC CORRELATION TABLE.

IJEC Opinion No. 2005-06

October 7, 2005

TOPIC

Propriety of judge writing a character reference or opinion letter on behalf of defendant in a hearing for executive clemency before the Illinois Prisoner Review Board.

DIGEST

A judge should not voluntarily provide a character reference or opinion letter on behalf of a defendant for use at an executive clemency hearing before the Illinois Prisoner Review Board. Such written opinion or letter may be permissible if specifically requested by the Review Board

REFERENCES

Illinois Supreme Court Rules 62B and 63A(6) and accompanying Committee Commentary; IJEC Opinion Nos. 95-12 and 94-13.

FACTS

A sentencing judge has been requested by a defense attorney to provide a character reference or opinion letter in support of a defendant’s request for executive clemency before the Illinois Prisoner Review Board. The defense attorney believes the judge, based upon the judge’s presiding over the trial and sentencing of the defendant, is in a position to comment upon the appropriateness of executive clemency for the defendant. The judge has received a copy of the petition for clemency (from the petitioning prisoner) in accordance with the Prisoner Review Board administrative regulations (20 Ill.Adm.Code Sec. 1610.180(3)(b) Rules Governing Petitions for Executive Clemency (Pardon or Commutation of Sentence)(“Copies of the petition shall be furnished to the sentencing judge.”).

The Prisoner Review Board has given notice to the judge of the docketing of the petition for hearing before the Board. The notice to the judge invites the judge to comment on the petition, either in writing, or in person. The notice of the hearing from the Prisoner Review Board does not specifically require a response from the judge. The petitioner, also, in accordance with the Administrative Code publishes a general notice of the clemency hearing and generally invites comments from interested persons. (20 Ill.Adm.Code Sec. 1610.180(3)(c)). The appeal period has expired, or all appeals have been disposed of, at the time of the Prisoner Review Board hearing.

QUESTIONS

May a judge, at the request of a defense attorney, provide a character reference or opinion letter in support of a defendant’s request for clemency before the Illinois Prisoner Review Board?

May a judge provide such comment or opinion in response to a written invitation to comment from the Prisoner Review Board?

OPINION

A judge should not voluntarily provide a character reference or opinion letter under the circumstances described above in response to the request of the defendant or other party. However, providing such an opinion letter or comment about a request for clemency may be permissible when made in response to the invitation for such from the Prisoner Review Board. There are two applicable rules which relate to this inquiry.

Illinois Supreme Court Rule 62B provides that a judge “should not lend the prestige of judicial office to advance the private interests of others … or testify voluntarily as a character witness.” In addition, Illinois Supreme Court Rule 63A(6) bars a judge from “public comment about a pending or impending proceeding in any court.”

Illinois Judicial Ethics Committee (IJEC) Opinion No. 95-12 concluded that a judge could write a character reference letter on behalf of defendant in connection with a sentencing in another proceeding, if, and only if, requested to do so by the sentencing judge or probations or corrections officer. (IJEC Opinion No. 95-12). However, it was determined that pursuant to Supreme Court Rule 62B, it would be improper to provide such a letter at the request of the defendant’s attorney.

Relying upon In Re Fogan (Fla. 1994), 646 So. 2d 191, and the Commentary to Canon 2B of the American Bar Association Code of Judicial Conduct (1990), the IJEC concluded that voluntarily providing a written statement bearing on the character of a defendant would violate Rule 62B. Although writing such a letter does not constitute testifying voluntarily as character witness, the same rationale applies to a character reference letter as to the direct character testimony. Such a voluntary letter results in injecting the prestige of the judicial office to advance the private interests of the defendant, which is, of course, prohibited.

On the other hand, the IJEC observed that the same bar would not apply if the character reference or opinion letter was in response to a formal request of the sentencing judge (or probation official) in connection with the separate, federal sentencing case. This was consistent with the Commentary to Canon 2B of the American Bar Association Code of Judicial Conduct which provided that:

However, a judge must not initiate the communication of information to a sentencing judge, or a probation or corrections officer but may provide to such person information for the record in response to a formal request.

The Committee observed that ABA Model Code Canon 2B was virtually identical to Illinois Supreme Court Rule 62B and thus, the ABA Model Code commentary was persuasive.

Accordingly, based upon this interpretation and analysis of Rule 62B, submitting a character reference or opinion letter for the executive clemency hearing in response to a request from the defendant or his attorney would not be permitted. However, if such a letter was solicited formally by the executive clemency review board, it would not violate Rule 62B.

Neither the notification to the sentencing judge (by the petitioner) of a clemency hearing before the Review Board nor the mere general invitation for comments, directed to interested parties (which is published in a newspaper of common circulation) would constitute a “formal request” within the scope of Rule 62B and Opinion No.95-12. The “formal request” referred to in Opinion No. 95-12 and the ABA Model Code Commentary clearly contemplates a direct solicitation for comment or opinion from the judge.

On the other hand, the specific written invitation from the Prisoner Review Board directly to the sentencing judge, informing the judge of the docketing of the hearing and notifying the judge of his or her opportunity to comment in writing or in person, is considered by the Committee to satisfy the requirement of a formal request within the meaning of Opinion No. 95-12. Accordingly, a judge’s response to the written notice and solicitation for comment from the Board itself would not violate Rule 62B.

Of course there may be other reasons why, even if permissible, it would be advisable or prudent for a judge to refrain from providing any comment (favorable or unfavorable) in a Prisoner Review Board proceeding. For example, as a result of comments or opinions shared in such a proceeding a judge might later face an issue of recusal, if a habeas corpus or post conviction proceeding would be initiated. This is the concern expressed in IJEC Opinion No. 94-13. (Any public comment by a judge at a parole hearing could possibly be interpreted as violating the Rule 63(A)6 prohibition barring such comments about an impending proceeding in a court, since an incarcerated prisoner may, at any time, challenge his or her incarceration in the courts through post-conviction proceedings or habeas corpus petitions). There is also merit to the argument and philosophy that any public comment or pronouncement about a proceeding over which a judge presided or about the parties or litigants should be left to the public record made by the court and should not be subject to later revision, embellishment or the perspective hindsight.

CONCLUSION

While a response to a formal request for comment by the Prisoner Review Board would be permissible (under Rule 62B) submission of comment or opinion in response to the request of a party or merely in response to a general notification of a Review Board hearing would not. Even if the public comment or opinion is permitted under Rule 62B, a judge is cautioned to consider the possibility or likelihood of a post conviction or habeas corpus challenge to incarceration which could interject the restrictions on public comment about impending proceedings in any court , under the analysis of Rule 63A(6) discussed above (in Opinion No. 94-13).