In Re Moore

626 N.W.2d 374, 464 Mich. 98, 2001 WL 577196
CourtMichigan Supreme Court
DecidedMay 30, 2001
DocketDocket 112416
StatusPublished
Cited by28 cases

This text of 626 N.W.2d 374 (In Re Moore) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Moore, 626 N.W.2d 374, 464 Mich. 98, 2001 WL 577196 (Mich. 2001).

Opinions

Weaver, J.

The Judicial Tenure Commission filed Formal Complaint No. 58 against the Honorable Warfield Moore, Jr., Third Circuit Court judge, on June 12, 1998.1 Pursuant to an agreement reached between the examiner for the commission and Judge Moore in November 1999, the allegations of misconduct set forth in paragraphs 1 through 17 of the complaint were dismissed with prejudice. Further, the parties agreed that a public hearing on the remaining allegations contained in paragraphs 18 through 25 of the complaint would be held before the full nine-member commission rather than the appointed master. This hearing occurred on March 13, 2000. On July 18, 2000, the commission issued its decision regarding misconduct, finding that Judge Moore had committed various instances of misconduct.2 In its recommendation for order of discipline, filed October 10, 2000, the commission recommended that Judge Moore be suspended for nine months without pay.

On de novo review,3 we conclude that Judge Moore committed misconduct. However, we disagree that a nine-month suspension is warranted. Instead, we order Judge Moore suspended for six months without pay.

[100]*100i

The allegations that form the basis of the commission’s findings of misconduct and recommendation of discipline stem from incidents occurring during eight separate criminal cases over which Judge Moore presided, spanning the years 1994-1997.4 The commission made the following factual findings in relation to each case.

A

Paragraph 18 of the complaint concerns People v White, Recorder’s Court Case No. 94-3885. The defendant in this matter was charged with first-degree murder and possession of a firearm during the commission of a felony.5 The commission found six instances of misconduct arising from this case.

First, the commission determined that Judge Moore created sympathy for the victim when, during jury selection, he compared the “viable” defendant with the murder victim, stating:

Ladies and gentlemen, you are going to to [sic] meet shortly the defendant in this matter. He is a very viable individual. Meaning he is alive and well like you and I. He walks and talks and sleeps and eats and does all of the [101]*101other fimction[s] that live human beings are wont to do. However, ladies and gentlemen, it is, there is an allegation that one Ronald Pemberton, Jr.[,] is no longer alive because it is alleged that he was shot to death, I believe, by the defendant premeditatedly, designedly. And obviously, you won’t see or hear him, from him in terms of seeing or hearing from him, ladies and gentlemen.

Second, in response to a prospective juror’s comments that he was biased against the prosecution because his brother had been convicted of carrying a concealed weapon, Judge Moore asked the juror to explain how he would demonstrate his bias, stating, “How would you do it? When you leave here, hiss or boo at her [the prosecutor]?”6 When this juror was dismissed for cause, Judge Moore made the following remark:

Of course, now, when anybody is out there with a gun and wants to use it, you tell them, come and see brother Nunley [the dismissed prospective juror].. He understands that. He understands you having a gun and putting it to his head.[7] I couldn’t quite get with it myself. But different strokes for different folks, I guess.

Third, the commission found that a hypothetical example given by Judge Moore during jury selection, which named the defendant and was modeled on the facts of the case, improperly encouraged the prospective jurors to find the defendant guilty.

[102]*102Fourth, the commission found that Judge Moore had commented spontaneously on the defendant’s personal interest in the case and the effect of his interest on his credibility.

Fifth, the commission determined that Judge Moore had improperly interjected himself into the proceedings in a manner favorable to the prosecution by asserting an objection to the defense counsel’s leading question and criticizing the prosecutor for failing to do so. Further, Judge Moore commented that the defense counsel was asking for conclusions that were really up to the jury to make.

Sixth, the commission found that Judge Moore unfairly criticized the Court of Appeals during sentencing when he stated in part:

Because I say, and I am going to put this on whether the Court of Appeals likes it or not. See, Court of Appeals, a lot of you folks up there who are white and middle class, you don’t know. You don’t have relatives who live in the ghetto. You don’t have black relatives who live in the ghetto who are trying to get over who are not that way. So you may think what I am saying, you shouldn’t interject that. I have to, because that is where I come from. That is where I go to. These are the People I talk to.[8]

B

The two allegations in paragraph 19 of the complaint stem from People v Eklour, Recorder’s Court Case No. 94-4189. The defendant was accused of attempting to defraud an insurance company by [103]*103falsely claiming that his business was robbed. The defendant was acquitted.

The commission determined that Judge Moore would not permit defense counsel to assert objections or make a record and that he made derogatory comments toward counsel in the presence of the jury. Further, the commission found that during a trial recess, when the court was off the record, Judge Moore commented to the prosecutor that the only reason he wanted to cross-examine the witness is because she was not wearing a bra.

c

The incidents on which the allegations of paragraph 20 of the complaint were based occurred during People v Payton, Recorder’s Court Case No. 95-006206. The defendant, who was charged with first-degree murder, was acquitted. The commission found six instances of misconduct during this matter.

First, the commission found that Judge Moore ridiculed a prospective juror, who did not think that he could sit on a jury because he had a difficulty with memory, by mispronouncing the juror’s name and joking with him about whether he could remember his name or where he worked.

Second, the commission determined that Judge Moore, for no apparent reason, inquired about whether a potential juror used drugs, asking her when she had last “smoked a joint or something.”

Third, the commission found that Judge Moore had become argumentative with defense counsel after the attorney attempted to explain the basis for a particular line of questioning. Judge Moore instructed coun[104]*104sel that he should not whine and cry, and stated that he sounded like “a little spoiled kid.” The jury was not present when this exchange occurred.

Fourth, the commission determined that Judge Moore had deferred his role as judge to the prosecutor by inviting the prosecutor to join in a disagreement with defense counsel, asking the prosecutor to explain if he [Judge Moore] was in error some way. This exchange also occurred outside the presence of the jury.

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Cite This Page — Counsel Stack

Bluebook (online)
626 N.W.2d 374, 464 Mich. 98, 2001 WL 577196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-moore-mich-2001.