Judge’s Facebook Friendship With Victim’s Parent Does not Taint Proceeding — Youkers v. Texas
[Post by Venkat Balasubramani]
Youkers v . Texas, No. 05-11-01407-CR (Tx. Ct. App. May 15, 2013) [pdf]
Youkers was convicted for tampering with evidence after he was indicted for assaulting his girlfriend who was pregnant with his child. He entered into a plea deal under which his prison sentence would be suspended and he would have to pay a fine. Three months after the deal, the State filed a motion to revoke the suspended sentence (and send Youkers to prison), contending that he violated the terms of his supervision.
Younkers entered an “open plea of true” and sought leniency on the basis that while he did not previously have a stable place to live, he did now. 
The trial judge rejected his contentions and sentenced him to 8 years in prison. The judge also rejected his request for a new trial.
Youkers appealed, and raised (among other issues) the fact that (1) the trial judge was Facebook friends with the victim’s father and (2) in the context of the initial proceeding, the victim’s father sent the trial judge an ex parte communication in the form of a Facebook message. The appeals court says none of this rises to the level of improper bias.
The Communications Do not Show Bias: Youkers’ appeal was focused on the Facebook friendship, but the court points out that the communications between the victim’s father and the judge in the initial proceedings do not show bias. The communication took place in the initial proceeding, was actually favorable to Youkers (it sought leniency), and the trial judge treated it as an ex parte communication. (The judge placed the communication in the record, and warned the father that such communications were not allowed.)
Mere Fact of Facebook Friendship Also Does not Show Bias: Turning to the key question of whether merely being Facebook friends is sufficient to show bias, the court says no. Citing to a recent ABA Standing Committee report, the court says that judges are not prohibited from using social media:
Allowing judges to use Facebook and other social media is also consistent with the premise that judges do not forfeit [their] right to associate with [their] friends and acquaintances nor [are they] condemned to live the life of a hermit.
In fact, such a regime “would . . . lessen the effectiveness of the judicial officer.” (Citing Comm. on Jud. Ethics, State Bar of Tex., Op. 39 (1978).) Nevertheless, while social media may be useful professionally (judges are elected, and the court recognizes that social media is part of any modern day judicial campaign) and personally, judges must still abide by the applicable ethical rules.
The court looks to the Texas Code of Judicial Conduct and several Canons, all of which prohibit any actions that undermine public confidence in the judiciary or that would convey anything other than impartiality. On the core question of where mere Facebook friendship warrants recusal, the court says no:
Merely designating someone as a “friend” on Facebook “does not show the degree or intensity of a judge’s relationship with a person.” ABA Op. 462. One cannot say, based on this designation alone, whether the judge and the “friend” have met; are acquaintances that have met only once; are former business acquaintances; or have some deeper, more meaningful relationship. Thus, the designation, standing alone, provides no insight into the nature of the relationship.
Youkers was required to produce additional evidence that there was an improper relationship and he failed to do this. The court does say that judges should be careful to not let third parties (i.e., the victim’s father in this case) convey the impression that they have special sway over the judge, but the judge did the right thing here. As soon as the father made a statement, the judge flagged it as an improper ex parte communication and instructed the father to not send any more messages along these lines.
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Shocker of shockers. For the most part, courts recognize that judges are also humans, and things like social networks should not be off-limits to them merely because they are judges.
Courts also recognize that a Facebook friendship is not necessarily a meaningful gesture, and even if it was, judges have friends too and should be able to socialize online (and express social preferences) in the same way they do off-line. (On the legal significance of Facebook friendship generally, see Quigley Corp. v. Karkus, No. 09-1725, 2009 U.S. Dist. LEXIS 41296, at *16, n.3 (E.D. Pa. May 19, 2009): “[T]he Court assigns no significance to the Facebook “friends” reference .. . . Indeed, “friendships” on Facebook may be as fleeting as the flick of a delete button.”) This is not to say that judicial officers socializing online do not have to exercise extra care. Privacy settings can be confusing. When viewed offline or in a different context, it’s often unclear who online statements may be attributed to. There’s also the issue of judicial elections, which present additional concerns.
The real issue here is the ex parte communication, which the judge in this case recognized was a no-no. Most people would know to not send a letter trying to chambers trying to influence the outcome of a case. Does the Facebook system encourage ex parte communications and allow them to take place in a scenario where people who communicate to judges don’t see them as obviously problematic? Also, most people would not necessarily have an easy time tracking down a judge’s contact information, but does being Facebook friends with a judge make it that much easier to send him or her a note? I don’t know the answers to these questions.
In the meantime, litigants will continue to attack decisions based on online relationships, but their efforts are likely for naught.
Related posts:
Florida Judge Disqualified Over Facebook Friendship With Prosecutor.
Is the Florida Bar Taking Facebook Friendship Too Seriously?
San Diego County Bar Tackles Lawyer Friend Requests and the Ex Parte Rule
Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts
Engaging Facebook Friends Doesn’t Violate Non-Solicitation Clause–Invidia v. DiFonzo
[image credit: Shutterstock/virinaflora: “best friends“]