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Issue link: https://kentuckybenchandbar.epubxp.com/i/213936
of Canon 2A; was not faithful to the law in violation of Canon 3A and B2; was not patient and courteous to a litigant in violation of Canon 3B(4); manifested bias and prejudice against a pro se litigant in violation of Canon 3B(5); failed to accord a person who had a legal interest in the proceeding the right to be heard according to law in violation of Canon 3B(7), and failed to dispose of judicial matters fairly, in violation of Canon 3B(8). COUNT II In the case of Commonwealth vs. Roger Dale Epperson, Warren Circuit Court Case No. 97-CR-00016, on September 28, 2012 in a hearing regarding Epperson's request for relief from a death sentence conviction, Judge Martin F. McDonald engaged in the following conduct: Judge McDonald addressed the attorney for the Defendant in an intemperate voice and, among other comments, stated "If you ever call me on my cell phone again, I'll strangle you", and that Judge McDonald would try to get the attorney's law license "yanked" if he did it again. When the attorney attempted to explain that he had consent of opposing counsel to make the call, Judge McDonald stated, "negative", "be quiet". In directing the bailiff to bring the Defendant from the holding cell into court, Judge McDonald stated, "Bring his carcass out here." After hearing from only one witness, Judge McDonald stated, "This has been a huge waste of time", and that the Department of Public Advocacy (DPA) attorney's allegations "Have bordered on the ridiculous". Judge McDonald also stated that the DPA was "making a mountain out of a mole hill". Judge McDonald also stated that the nature of ineffective counsel motions in general, "is distasteful to the court. The lawyers who do the work at trial now get criticized by backseat drivers who weren't there, and who didn't try the case". Judge McDonald also stated to the DPA attorney, "You've never been in the heat of battle in one of these cases, and now you're criticizing lawyers that actually are real lawyers that do the work, the dirty work, the down in the trenches work." Judge McDonald's conduct at the hearing in question generated negative coverage in the Courier-Journal, and other media outlets, and brought the Kentucky Judiciary into disrepute. By a vote of 6-0, the Commission finds with respect to this Charge that Judge McDonald violated SCR 4.020(1)(b)(i) and (v), and that the actions of Judge McDonald constituted misconduct in office, and violated SCR 4.300, the Code of Judicial Conduct, in that Judge McDonald failed to observe high standards of conduct in violation of Canon 1; failed to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the Judiciary in violation of Canon 2A; was not faithful to the law in violation of Canon 3A and B(2); was not patient, dignified and courteous to a litigant and the litigant's lawyer in violation of Canon 3B(4), and manifested bias and prejudice against attorneys of the DPA in claims of ineffective assistance of counsel in violation of Canon 3B(5). ORDER Judge Martin F. McDonald has been found guilty of violating the Code of Judicial Conduct and engaging in misconduct in this matter. Judge McDonald is a Former Senior Status Special Judge, who served on the Bench for many years. Judge McDonald's actions in entering an injunction and awarding attorney fees against a pro se litigant without the taking of any proof, merely hearing argument of opposing counsel, is something the Commission would not expect from a seasoned veteran Judge. Judge McDonald completely disregarded his responsibility to provide access to the Court for all litigants in the Commonwealth of Kentucky, and his actions in this matter were so improper as to be reprehensible. Judge McDonald's actions in regard to Count II, which was a hearing relating to a request by the Defendant for relief from a death sentence conviction are likewise something the Commission would not expect from a veteran jurist. The seriousness of this type proceeding and the stakes involved, require the Court to consider the matter appropriately, and not act as Judge McDonald did in this instance. It is important to note that during the pendency of this matter, the majority of the Commission voted to order a temporary suspension of Judge McDonald from acting in his official capacity as a Judge, and from the performance of his duties pending final resolution of this matter. A temporary suspension is only pursued in egregious cases. Suffice it to say that the actions of Judge McDonald in both of these cases were egregious. Judge McDonald is no longer serving in the Kentucky Court of Justice. However, his conduct described in this Order violated the Code of Judicial Conduct and brought the Kentucky Judiciary into disrepute and should be sanctioned. Since Judge McDonald has completed his service, a public reprimand is the most severe sanction available. Were Judge McDonald still a member of the Kentucky Judiciary, a much more severe sanction, perhaps including removal from the Bench, would have been warranted, and would have been ordered. Therefore, for the foregoing conduct, Former Senior Status Judge Martin F. McDonald is hereby publicly reprimanded. Judge David Bowles recused from any consideration of this matter. DATED: August 12, 2013 __________________/s/______________________ STEPHEN D. WOLNITZEK CHAIR OF THE COMMISSION CERTIFICATE OF SERVICE I hereby certify that a copy of the Findings of Fact, Conclusions of Law and Final Order were mailed to Hon. Timothy Dennison, Suite 320, Republic Plaza, 200 South Seventh Street, Louisville, Kentucky 40202, and counsel for the Commission Hon. George F. Rabe, 157 Kentucky Avenue, Lexington, Kentucky 40507, this 12th day of August, 2013. __________________/s/______________________ MS. JIMMY SHAFFER, 31 EXECUTIVE SECRETARY B&B; • 11.13