'Unprofessional and unethical': Judge castigates attorney general over social media posts

PROVIDENCE – A Superior Court judge has filed a complaint with the judiciary’s disciplinary counsel over “false and disparaging” social media posts by Attorney General Peter F. Neronha that the judge characterized as intended to discredit the court.

“It is this court’s position that the unethical and false statements related to the integrity of the Superior Court bench-trial process and the judge who considers those bench trials … must be addressed,” Judge Daniel A. Procaccini said Friday morning before a packed courtroom.

“The court will not justify or excuse the false and disparaging attacks on the Superior Court, and further it would be disrespectful to all the attorneys in this state who follow the [Rules of Professional Conduct] each and every day,” he continued.

Procaccini proceeded to list five rules he said Neronha had blatantly and recklessly violated:

• A bar on making false statements that undermine the integrity of the court.

• A prohibition on conduct intended to disrupt the court’s workings or statements that would lead to public condemnation of the accused.

• A dictate that a lawyer who is participating or has participated in the legal matter shall not make statements outside the courtroom that the lawyer knows will be disseminated publicly and prejudice the case.

• A bar on lawyers making false statements of fact or law to a tribunal and failing to correct it.

Procaccini said he has filed an official complaint against Neronha with the Office of the Disciplinary Counsel, which reviews and investigates all allegations of attorney misconduct.

More: More than 150 employees have left the AG's office since 2019. What that means for RI.

Why Neronha was not in court

Neronha on Thursday said he had been exposed to COVID, was symptomatic and would not be able to comply with Procaccini’s order that he appear in court over a series of social media posts he made as Procaccini was deliberating in an alleged hate crimes case. Procaccini acquitted the defendant two days later in the hotly argued case.

A swipe at Procaccini’s integrity?

“When some judges never oversee a jury trial, it’s not a coincidence,” Neronha wrote after closing arguments in the case Procaccini was presiding over without a jury.

Many in the legal community viewed the post – and others – as a swipe at Procaccini’s integrity. And more than a half-dozen defense lawyers were on hand at Friday’s hearing in support of Procaccini.

After Procaccini's findings, Neronha was quick to post again.

"I love this work and I will always speak up for victims of crime and the people of Rhode Island. Don’t like my words? Refute them. Or go home." he wrote.

Procaccini cited statistics that showed that he had nearly identical conviction rates of about 60% in bench and jury trials.

Neronha says social posts didn't violate any rules

Neronha issued a lengthy statement Friday in response in which he touted his more than three decades as a lawyer and said he had “never had a dispute with a member of the bench like the one manifested in recent weeks.” He said he tried to resolve the matter informally without success.

“The court today has accused me of conduct in violation of the professional rules of responsibility and more. I categorically reject those accusations and have absolutely no doubt that any forum that may ultimately hear these accusations will reject them as well. I have not violated any rules of professional responsibility, nor have I violated any other rules,” Neronha said.

“As a constitutional officer, I have the right and duty to inform the people of Rhode Island of my view on matters that I believe are of public concern. That was the purpose of my social media posts: to alert the people of Rhode Island to what I believe is a real weakness in Rhode Island’s system of justice. And to rally support for change, change that is very much needed,” Neronha continued.

He vowed to press for a change that would require prosecutors' consent before a defendant can choose to be tried before a judge without a jury. Currently, a defendant can choose that form of proceeding, known as a bench trial, without the agreement of prosecutors.

“This is wrong. It should be changed. And I am determined to fight to change it at the General Assembly on behalf of victims and the public,” Neronha said.

First Amendment, due process arguments

Neronha had argued in papers seeking to vacate the judge's order to appear that he was exercising his First Amendment rights in making the social media posts and that the court’s order violated his due process rights as an officer of the state.

Procaccini didn’t hear those arguments Friday and, instead, lifted the order to appear, saying Neronha had made it abundantly clear in “false” and misleading statements that he would not comply.

Neronha took the judge's decision to lift the order as a victory, though Special Assistant Attorney General Miriam Weizenbaum, chief of the civil division, indicated she was prepared to argue as Stephen Dambruch, the criminal division chief, looked on.

“I am grateful that the court, it seems, has now acknowledged that it had no authority to summons an attorney general, a constitutional officer elected by the people of Rhode Island to advocate on their behalf, for the purpose of accusing him or her of conduct that offends the court. The failure by the court to identify any such authority in any of its oral and written orders for me to appear, and again today, comes as no surprise, as the court has no such authority," Neronha said. He added that he was prepared to appeal the matter to the state Supreme Court if necessary.

Procaccini rejected Neronha's free-speech and separation-of-powers arguments Friday, and instead held firm that Neronha’s "unprofessional," "unethical" and "false" statements clearly violated the rules and that as a judge he was ethically bound to address them.

In concluding, Procaccini quoted the late U.S. Supreme Court Justice Robert Jackson’s observation that a prosecutor “has more control over life, liberty and reputation than any other person in America. His discretion is tremendous.”

“The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman," Jackson wrote. "And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility,” Procaccini said.

This article originally appeared on The Providence Journal: Neronha faces complaint filed by judge over social media posts