Commonwealth v. Carman
2015 WL 737948, 2015 Ky. LEXIS 66, 455 S.W.3d 916 (2015)
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Rule of Law:
Judges are prohibited from engaging in ex parte communications to change a criminal defendant's conditions of release after bail has been initially fixed. Any such modification by a different judge, initiated by an ex parte contact, is a violation of judicial ethics rules that prohibit judge-shopping and require that both parties have an opportunity to be heard.
Facts:
- On July 24, 2013, Louisville Metro Police executed a search warrant, found illegal drugs and paraphernalia, and arrested Kenneth Westbay, Shannandoah Carman, and Robert Jecker.
- The three men were booked into the Jefferson County Jail.
- The 'duty' judge for that day, Judge David Bowles, set full-cash bail bonds for each man: $5,000 for Westbay and Jecker, and $1,000 for Carman.
- Arraignments for the men were scheduled for the following morning.
- Before the scheduled arraignments, a different District Judge, Judge Donald Armstrong, telephoned the Pretrial Services office.
- Following the phone call, Judge Armstrong ordered that Westbay and Carman be released on their own recognizance and postponed their arraignments.
- This action was taken without notice to the Commonwealth.
- Recorded jail phone conversations between Carman and his mother included comments suggesting that someone had 'pulled strings' to bring about his release.
Procedural Posture:
- At the arraignment, the Commonwealth moved to set aside Judge Armstrong's release order and reinstate the original bond set by Judge Bowles.
- The presiding District Court judge, Judge Stephanie Burke, denied the Commonwealth's motion, stating that such ex parte modifications were not uncommon and that she could not pass upon a coordinate judge's order.
- The Commonwealth then initiated a request in the Supreme Court of Kentucky for a certification of law to resolve the question.
- The Supreme Court initially denied the Commonwealth's request.
- The Commonwealth filed a motion for reconsideration, which the Supreme Court granted, thereby agreeing to accept the question for review and hear the case.
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Issue:
Does Kentucky law authorize ex parte communications to change the conditions of a defendant's release after bail has been initially fixed, without providing notice to the Commonwealth?
Opinions:
Majority - Justice Abramson
No, Kentucky law does not authorize ex parte communications to change the conditions of release after the initial fixing of bail. Such communications are a clear violation of judicial ethics rules. Although the court determined that a certification of law was procedurally improper because there was no final adverse order, it chose to exercise its supervisory authority under Section 110 of the Kentucky Constitution to issue a writ of prohibition. The court reasoned that our system of justice requires that opposing parties have a fair opportunity to be heard. The exception in the judicial ethics code (SCR 4.300, Canon 3(B)(7)(a)) permitting ex parte communications for the 'initial fixing of bail' applies only to the very first time a judicial officer sets bail. Once that initial determination is made, as it was by the duty judge here, the exception no longer applies. Any subsequent modification must not be ex parte. To hold otherwise would endorse 'judge-shopping' and undermine the integrity of the judicial process.
Analysis:
This decision establishes a bright-line rule prohibiting ex parte communications for bail modifications after the first bail determination is made, effectively closing a loophole that enabled 'judge-shopping' in the critical pre-arraignment period. By invoking its extraordinary supervisory power to issue a writ of prohibition despite a procedural defect, the Court signaled its low tolerance for systemic ethical violations that erode public confidence in the judiciary. The case extends the principles of Commonwealth v. Wilson, which forbade ex parte actions on arrest warrants, to the context of bail, reinforcing that fundamental fairness requires both sides to be heard on substantive matters. This ruling provides clear guidance to lower court judges that informal, 'business as usual' practices that violate judicial canons will not be permitted.
