In Re Complaint of Judicial Misconduct

FOR PUBLICATION

JUDICIAL COUNCIL

OF THE NINTH CIRCUIT

  IN RE COMPLAINT No. 08-90211

OF JUDICIAL MISCONDUCT

 ORDER

Filed September 22, 2009

ORDER

KOZINSKI, Chief Judge:

A pro se prisoner has filed a misconduct complaint against a district judge. The subject judge presided over a criminal case in which complainant was a defendant.

Complainant alleges that the judge engaged in improper ex parte communications with a probation officer during which he received “confidential, attorney-client information.” Noth- ing a probation officer learns about a criminal defendant is subject to the attorney-client privilege or any other privilege vis-a-vis the sentencing judge. Off-the-record communica- tions between judges and probation officers are a normal part of the administration of justice, and not the least improper. See Canon 3A(4), Code of Conduct for United States Judges.

We do require judges to advise defendants of any facts con- veyed by probation officers during off-the-record communica- tions, if the judge plans to rely on those facts during sentencing. United States v. Gonzales, 765 F.2d 1393 (9th Cir. 1985). But that rule doesn’t…