Judge On Search Warrant Task Force Disciplined For Public Opinions on Search Warrant Procedure
A member of the Kentucky Attorney General’s search warrant task force was sanctioned this year for publicly defending the search warrant process and the judge who approved the warrant for Breonna Taylor’s home.
Jefferson Circuit Court Judge Charles Cunningham received a private reprimand from the Judicial Conduct Commission in January for comments he made in an op-ed published in The Courier Journal. The reprimand doesn’t name Cunningham, but he confirmed to KyCIR that he is the subject of the disciplinary action.
Cunningham was publicly named last week as a member of the task force the attorney general will charge with scrutinizing and suggesting possible reforms for how search warrants are obtained and executed in Kentucky.
In the opinion article published last July, Cunningham shot down the need to randomize search warrant assignments to judges and to record their conversations with law enforcement officers seeking warrants. Both were reforms proposed in an earlier op-ed by Louisville attorney Ted Shouse.
Cunningham went on to defend the integrity of the judge who signed the much criticized search warrant that led to Taylor’s killing.
That warrant is still the focus of an ongoing federal investigation, and the Louisville Metro Police Department fired the officer who obtained it, alleging he lied in his affidavit.
The judicial commission ruled that Cunningham violated the Judicial Code of Conduct by making comments that could affect the outcome or impair the fairness of impending court matters. By personally attacking a local attorney, Cunningham failed to uphold a standard of patience, dignity and courtesy required of judges in Kentucky, the reprimand said.
Cunningham has been on the bench since 2008.
He said in an interview this week that “there is no basis for someone to contend that Charlie Cunningham’s mind is made up” regarding the system of issuing search warrants.
“I never said the policy is perfect,” he said.
Criminal justice reform advocates say the judge’s actions go beyond a mere violation of rules, and instead serve as proof that the deck is stacked against any effort to change the system of search warrant issuance.
“I think it does call into question the viewpoint diversity on that task force,” said Corey Shapiro, the legal director for the American Civil Liberties Union of Kentucky. “We already had concerns that it was not fully representative of what the community wanted to see.”
One judicial ethics expert said Cunningham’s comments — and his position as a sitting judge — should disqualify him from serving on the task force.
“Judges ought to stay the hell out of politics,” said Charles W. Wolfram, a professor emeritus at Cornell Law School. “I find it very disturbing.”
Wolfram said no sitting judge should have been tapped to serve on the task force, which could influence policy decisions. A better choice, he said, could be a retired judge with knowledge of how the system works but no stake in it, or an expert who studies the process of warrant issuance.
“It’s a real mistake and not consistent with the independence of the judicial code for judges to be taking policy positions on political issues,” he said.
Cunningham is one of two current judges the Chief Justice of the Supreme Court, John Minton, appointed to serve on the search warrant task force. Christian County District Court Judge Foster Cottoff will also serve on the task force.
In an emailed statement, Minton’s spokesperson said the chief justice “is confident in Judge Cunningham’s ability to serve impartially on the attorney general’s task force.”
Jefferson Circuit Court Chief Judge Angela McCormick Bisig declined to comment on the particulars of the sanction against Cunningham, but defended the judge, calling him a “hard working, thoughtful colleague.”
Cameron’s spokesperson, in an emailed statement, did not directly address the disciplinary action levied against Cunningham, nor did she respond to the question of if Cunningham should be removed from the group.
“The members of the task force represent every aspect of the search warrant process, and each member will bring his or her own opinions, experiences, and ideas to bear as part of the conversation,” she said.
Task Force Slow To Start
Cameron formed the search warrant task force as a direct result of the police killing of Breonna Taylor. He announced it during a September 2020 press conference, after a grand jury convened by his office brought no criminal charges for the death of Breonna Taylor, 26, who LMPD officers shot and killed in her home during the execution of a search warrant.
Cameron formally launched the task force with an executive order in January.
Now, nearly eight months since the announcement, it hasn’t met. It’s first meeting is set for May 24. Cameron announced the group’s members last week, after KyCIR asked for comment about the task force’s inaction.
Cameron told WDRB News in an interview broadcast on Tuesday that he is hopeful the task force will propel Kentucky to be a national model for how search warrants are processed.
Taylor’s killing sparked change at the executive and legislative branches of government, but judges have been averse to adopting any notable changes. In November 2020, Jefferson District Court judges voted down a proposal from fellow district judge Julie Kaelin that aimed to bring more transparency and oversight to the search warrant system.
Jefferson Circuit Court judges did take one step to promote transparency, however, after a report from KyCIR and WDRB News found their signatures on search warrants were often illegible: The judges began using stamps imprinted with their name.
A Spat in the Papers
Cunningham’s article was a direct response to an op-ed penned by local defense attorney Ted Shouse. He called for pointed reforms to how warrants are issued in articles published by The Courier Journal and in the Louisville Bar Association newsletter.
Shouse wrote that the communication between judges and the law enforcement officers who seek a warrant should be recorded. Additionally, he said there should be a process to randomly assign judges to review search warrants.
Cunningham responded sharply. He shot down the necessity and practicality of the reforms and accused Shouse of trying to mislead the public to gain support for changes that would serve the interests of defense attorneys and defendants.
“Those sorts of misstatements can be chalked up to ignorance,” Cunningham wrote.
The commission noted the judge’s tone in its ruling that Cunningham violated a provision of the Judicial Code of Conduct that requires judges by “patient, dignified and courteous to lawyers and others with whom the judge deals in an official capacity.”
In an interview this week, Shouse dismissed the squabble as a side-show.
“I’ve been called names before,” he said. “The real issue here is that Breonna Taylor was killed by Louisville police officers and it was a search warrant that brought those officers to her door.”
In his op-ed, Cunningham defended Circuit Judge Mary Shaw, who issued that warrant, and her process for that particular warrant.
“Judge Shaw did nothing wrong,” Cunningham wrote. “She methodically applied the law as it then existed to the facts as presented to her.”
The Judicial Conduct Commission ruled that Cunningham’s specific comments violated a rule that prohibits judges from “making public statements which might reasonably be expected to impair the fairness of a matter impending in any court.”
Shapiro, with the ACLU of Kentucky, said in defending Shaw, Cunningham showed a troubling bias that permeates the courts — “that judges can do no wrong.”
When asked if he regrets penning the op-ed, Cunningham declined to comment.
Judicial Discipline Rare, Somewhat Secret
Cunningham has been sanctioned at least twice by the Judicial Conduct Commission since 2013, according to records of judicial disciplinary actions maintained on the commissions website.
In 2018, the commission ruled that Cunningham had failed to notify prosecutors of certain court actions and talked to a defendant’s counsel without the prosecutor’s knowledge. For that, he was publicly reprimanded.
The group issues just a handful of sanctions each year — no more than eight each year since 2013 — and the members don’t discuss their work.
The Judicial Conduct Commission consists of six members and four alternate members, which include judges, attorneys and citizens. The chair, R. Michael Sullivan, an Owensboro attorney, said the group is bound by its rules to keep mum on any investigative matters or disciplinary actions.
Nationally, discipline against judges is also somewhat rare. In 2020, at least 127 sanctions were levied against sitting state judges across the country, according to a report from the National Center for State Courts.
Cynthia Gray, who compiles data about each disciplinary action for the center, said some judges will take the sanctions to heart and try to learn from their mistakes. Others, though, she said, will double down.
A sanction stemming from an op-ed is rare, Gray said. Judges are instead commonly disciplined for demeaning or belittling defendants or attorneys in open court, or for posts to social media.
As for making public comments, there is value in getting an inside look at what a judge thinks about certain issues, especially those that pertain to the administration of justice, said Kevin S. Burke, a former district court judge from Minneapolis.
“Just because you’re a judge doesn’t mean I can’t talk about things about the criminal justice system,” he said. “But you have to be careful, there is a fine line.”
And perhaps most of all, they shouldn’t be rude, Burke said — pointing to a quote from the former attorney and politician Morris Udall, who asked God to “give me the grace to make my words gentle and tender, for tomorrow I might eat them.”