Centre Co. Controversy Raises Texting, Social Media Issues

July 26, 2015

Max Mitchell & Lizzy McLellan, The Legal Intelligencer

In filings before the state Superior Court, the appeal of a woman convicted of aggravated assault, simple assault, endangering the welfare of a child and recklessly endangering another person have started focusing less on the defendant and more on the conduct of the judge who oversaw the case and the Centre County district attorney.

Briefs and motions from the defendant filed over the past two months in the case of Commonwealth v. McClure have pointed to numerous text messages between members of the Centre County District Attorney’s Office and Centre County Court of Common Pleas Judge Bradley Lunsford, who oversaw the trial, as well as pictures on social media of Lunsford with a district attorney who recently left, as reasons for why the judge should have recused himself.

However, an attorney for the District Attorney’s Office disputed the relevance of the texts and photos, and noted that the defendant was convicted by a jury and not the judge.
According to court papers, the pictures were taken of Lunsford with a former district attorney at a concert and following a community race, and some of the text messages were sent when Lunsford was on the bench during trial.

Among other things, the filings also included an affidavit from a court reporter who said that, during one of the recesses in an unrelated 2012 criminal case, Lunsford had complained that District Attorney Stacy Parks Miller was “bitching to him” about the way he was handling the trial.

“I talked to [Lunsford’s secretary] Joan Parsons and told her that I was very upset about what Judge Lunsford had just told me about texting with the district attorney during trial,” Maggie Miller, the court reporter, said in the affidavit. “Joan Parsons told me that she would regularly tell Judge Lunsford to leave his phone in his office when he went to the bench. Joan Parsons said Judge Lunsford ignored her advice and took the phone to the bench constantly.”

The affidavit was included in an application for relief filed by attorney Bernard F. Cantorna.
In a response filed July 8, prosecutors argued that the issues raised were based on rumor and “specious innuendo in flagrant disregard for the Rules of Professional Conduct.” Various post-trial motions and attempts to subpoena members of the Centre County District Attorney’s Office were part of a “relentless fishing expedition,” said the brief, which was filed by Bruce L. Castor Jr. of Rogers Castor in his capacity as special assistant district attorney. The filing further said that all of the claims had been vetted and rejected by the court.

“The truth is that there are no facts in question here. Counsel has been engaged in a campaign of defamation and denigration since a jury convicted his client of serious felony charges,” the filing said. “Since that time, counsel has done nothing but attempt to manufacture a controversy to attempt to distract from proper appellate review.”
The filing also specifically called into question the relevance and validity of the Miller affidavit.

“This hearsay document, allegedly referencing an entirely different case, is not part of this record, suspect, and completely irrelevant. Counsel persists in his mission and tacks it onto this motion, knowing it is not part of this record, and should not be considered by this honorable court,” the filing said. “The logic behind how it could ever be ‘relevant’ would stretch the fabric of the most bendable imagination.”

Regarding the text messages, Castor has maintained that no improper communication took place, and that district attorneys and judges often must discuss legitimate issues, including arranging wiretaps.

Castor also said it was important that McLure was convicted by a jury, and not a judge.
“If it happened outside the presence of a jury, it couldn’t affect the deliberations, so, even if everything Cantorna said is true, it can’t affect the outcome of the trial,” Castor said, adding that he felt the defendant is only raising the issue for political reasons. “It’s being done in retaliation to the district attorneys who did their jobs well, and obtained a conviction in a very serious crime.”

According to Lunsford’s opinion on the matters complained of on appeal, the motion to recuse was only made after the verdict, and the photos of him with members of the District Attorney’s Office were taken after the trial took place. He also said the text messages were not ex parte communications and did not deal with McClure’s case. Lunsford also questioned whether the issue would have been raised if he had spoken with the attorneys directly, instead of through text messages.

“It is common for judges to have contact with the other attorneys in the courthouse.” Lunsford said.

Navigating Relationships

Navigating the often close relationships between judges and those who appear before them regularly to avoid any appearance of impropriety can be tricky, according to ethics attorneys.

John Morris of Kaufman, Coren & Ress noted that many judges worked as district attorneys or public defenders before taking the bench, and these close personal relationships do not end once a person is elected judge.

Even in a larger city, such as Philadelphia, many practitioners know the judges they appear in front of, so it would be time-consuming, unnecessary and possibly a step toward condoning judge-shopping if judges were expected to recuse because of these relationships, Morris said.

But while records of text messages or photos found on social media do not necessarily indicate any impropriety, the line is crossed when conversations turn to ex parte communication about a case, or when there is a clear pattern of favoritism, Morris said.
“Close personal relationships really aren’t a problem unless you’re talking ex parte communication about a case,” Morris said.

Morris said sending texts on the bench might raise questions about what a judge is paying attention to during trial, and could provide fodder for some appeals, but it would not automatically indicate that a judge should recuse himself or herself.

Morris also noted that the courts are not easily fooled by recusal motions where one is not warranted.

“It’s pretty tough to win a recusal where there’s not a direct interest in somebody’s case,” Morris said.

A lawyer who works in ethics matters and asked not to be named agreed it’s not uncommon for judges and lawyers to find themselves interacting outside of the courtroom to a certain extent. But a certain level of relationship can create bad appearances, he said.
“The standard is basically, ‘Would a disinterested third person look at this as giving an appearance of impropriety?'” the lawyer said. “I don’t think it’s a serious disciplinary matter, but it is a violation of the rules.”

Social media creates another complication, the ethics attorney said, adding that he expects social media will become increasingly involved in litigation.

“I think that social media is overused and improperly used,” he said. “I would advise judges not to post anything on social media.”

Samuel Stretton, a solo practitioner in West Chester who writes an ethics column for the Law Weekly, said it can be acceptable for a lawyer and a judge to be acquainted outside the courtroom, but that activity needs to be disclosed.

“Otherwise no judge in a small county could ever hear a case,” he said. But “judges can’t have a dating or a close social relationship with someone who appears regularly before them, at least not without a disclosure.”

Stretton said based on the accounts in court documents in the McClure case, business seemed to be conducted “informally” in Centre County. But judges should maintain a boundary, he said.

“As a judge, you have to step back. … You have to know where the line is, and not cross it,” Stretton said. “If you want to be everyone’s best friend, don’t be a judge.”

Cantorna declined to comment for this story.

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