California judges can respond to criticism of their rulings under amended rule

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Judges in California can respond to criticism of their decisions during an election or recall campaign as a result of an amendment to the California Code of Judicial Ethics.

The revision follows the 2018 recall of Judge Aaron Persky of Santa Clara County, California.

Persky was criticized for a six-month sentence that he gave in June 2016 to Stanford swimmer Brock Turner, who sexually assaulted an unconscious woman, report Law.com and Courthouse News Service.

Ethics rules prevented Persky from responding to the criticism.

The amendment, which takes effect July 1, reads: “In connection with a judicial election or recall campaign, this canon does not prohibit a judge from making a public comment about a pending proceeding, provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual or legal basis of a decision about which a judge has been criticized during the election or recall campaign.”

Commentary to the proposed rule says that, depending on the circumstances, judges should consider whether it is preferable for a third party to make statements on their behalf regarding a criticized decision.

The Judicial Fairness Coalition had proposed the rule change in 2018 amid concerns about attacks on judges and their opinions. The coalition was launched by the California Judges Association and includes active and retired justices and judges, lawyers, law school deans and professors.

Judge Paul Bacigalupo of Los Angeles, a co-founding chair of the Judicial Fairness Coalition, told Courthouse News Service that unanswered attacks on judges erode “the public’s trust in the rule of law and their confidence in a fair and just judicial system.”

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