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Eakin defense raises questions about potential bias

One of the crucial obligations of judicial office is impartiality, defined as “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”

Pennsylvania Supreme Court Justice Michael Eakin was suspended on Dec. 22 by the Court of Judicial Discipline for his part in the email scandal engulfing the commonwealth.

His defense was telling. "Perhaps my demeanor was 'one of the boys,'" he told the court. "But what I sent was to people who were 'one of the boys.' It was in the locker room."

Lawyer Samuel C. Stretton, a purported expert in legal ethics, supported the locker room theory of defense. "There isn't a judge alive — or a man alive — who hasn't looked at pornography or laughed at an off-color joke," he said.

Whether Stretton is right about judges and men, his conclusion that the justice did not violate judicial canons in sending the emails is very much in doubt. And what the testimony ignored was the relationship of the parties exchanging the emails.

There are four canons of judicial ethics, set down by the Supreme Court. Three of the four specifically require that a judge maintain impartiality; the fourth mandates that he or she conduct "personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office."

Of course, one of the crucial obligations of judicial office is, obviously enough, impartiality, defined by the canons as "absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge."

How do we know when a judge is maintaining impartiality? There is no precise formula, but, ironically, the maxim applied to obscenity by U.S. Supreme Court Justice Potter Stewart — we know it when we see it — may be most applicable.

Neither Eakin nor the legal ethics expert seem concerned that he considered himself "one of the boys" with members of the Attorney General's Office, the commonwealth's chief legal and law enforcement office. But if one of Pennsylvania's top judges is hanging out in the locker room with top prosecutors, can those being prosecuted be confident they are treated fairly?

One of the first questions asked of potential jurors is whether they know the judge, the lawyers, or the witnesses in the case. If the answer was, "Yes, I'm very close with one of the lawyers, who I consider one of the boys," that person would be dismissed from jury service as potentially biased.

The key word is potentially.

We cannot enter Eakin's mind and ascertain his intentions, motivations, or biases. Nor does the Code of Judicial Conduct require such an examination. Indeed, the code routinely uses the word appearance, making it clear that the public's perception of the criminal justice system and the judges who preside over it is essential to the integrity of the system itself.

It is impossible not to conclude that the justice's intimacy with prosecutors creates the public impression that he favors them. There is a reason umpires don't wear the uniform of one of the teams when they referee a game — in this case, it is easy to imagine that Eakin is wearing the uniform of a prosecutor.

While the substance of the emails raises questions about Eakin's judicial character, his decision to join top prosecutors in a private "locker room" is equally troubling.

Marc Bookman is director of the Atlantic Center for Capital Representation in Philadelphia.