by Max Brantley
Whoops. The three-member panel not only strongly disapproved of the idea (even though it would provide no financial benefit to the judge or her staff) it sharply questioned Gunn's current local broadcasting, saying "we are concerned that your current program is inconsistent with the spirit of the Code [of Judicial Conduct] and Administrative Rule 6" of the Arkansas Supreme Court. Rule 6 allows broadcasting under certain circumstances.
The committee — retired Judge Edwin Alderson, retired Judge John Cole and UA law professor Howard Brill — noted that drug court is aimed at rehabilitating often young and vulnerable defendants. It is aimed at avoiding convictions and the notoriety that comes with them. The committee thought it unfair to even ask to defendants to participate in broadcasts.
In this modern media culture once the taping is done and it is released into the public domain it is there forever and can come up from time to time during this defendant's entire life. It could be used against this person in a personal, political, economic or social situation to his or her extreme detriment. Your recitations that the videos in your court are a number one rated show broadcasted to 200,000 households in three counties speak volumes in this regard. How might it appear to a defendant that he or she must be asked by the judge to waive any objection to appear on television? Would they be intimidated by the question knowing that the judge encourages this production?
The panel noted that, even if the defendant agreed to broadcast, there were witnesses to consider. The advisory panel encouraged Gunn to seek Supreme Court guidance on whether "the broadcast of drug court impairs the dignity of the proceedings" and whether they should be "taped or televised in any form."
The committee said, regardless of the propriety of existing broadcasting, that the Code of Judicial Conduct does not permit a judge to participate in broadcasting by a for-profit enterprise.
Does the taping, releasing to the general media and televising of drug court proceedings involving troubled and unfortunate individuals in a 'number one' ranked television show promote public confidence in the integrity of the judiciary? We think that the answer is that it does not.
While the national proposal Gunn mentions provides no money for her or court staff, the advisory committee said it "does advance her personal interests. The judge might not reap immediate economic benefit from this but the fame and public exposure could advance both her economic, personal and political interests."
The committee also raised the possibility that broadcasting could influence her conduct. "A reasonable person could conclude that putting on a 'number one' television show broadcasting people in their most unfortunate times and the possibility of doing this for a national audience could influence the judge's judicial conduct or judgment." The use of the judge, staff and government facilities for such an end "may appear to a reasonable person to undermine the judge's independence, integrity or impartiality."
The ethics committee is only advisory. Any questions about a judge's conduct would be a matter for consideration by the Judicial Discipline and Disability Commission.
In a telephone interview, Judge Gunn expressed surprise at the ruling, given that the court has been operating — and broadcasting — for six years. But she said she "respected" the committee's decision. She said she had not yet decided if she'd continue broadcasting the court, which is next scheduled Sept. 13. She emphasized that she viewed the proceedings as "educational outreach" and a service to others. She said there were no concrete plans about a national broadcast, which she described as being discussed as a "documentary series" but that it was viewed in the same educational vein. She also said she never encouraged participants in the court to waive objections to broadcast and always honored the requests of those who asked not to be filmed. A private production company currently does the filming and provides video to Fayetteville public access and to Madison County, also in the judicial circuit.