In re Barnack ( 2013 )

No. 6 February 7, 2013 205
IN THE SUPREME COURT OF THE
STATE OF OREGON
Inquiry Concerning a Judge
Re: THE HONORABLE TIMOTHY BARNACK,
Accused.
(CJFD No. 12-24; SC S060976)
En Banc
On review of the Commission on Judicial Fitness and
Disability Stipulation to Facts and Consent to Censure.
The Honorable Patricia Sullivan, Chair, Oregon
Commission on Judicial Fitness and Disability, submitted
the stipulation.
PER CURIAM
The accused is censured.
206 In re Barnack
PER CURIAM
This is a proceeding to inquire into the conduct of a
circuit court judge. ORS 1.410 establishes the Commission
on Judicial Fitness and Disability (Commission), and
ORS 1.420 to ORS 1.430 set out procedures by which the
Commission may investigate any complaint concerning the
conduct of a judge. Those procedures permit the Commission
and a judge who is the subject of a complaint to enter into
a stipulation as to the facts and the appropriate sanction.
ORS 1.420(1)(c); ORS 1.430(2). One permissible sanction is
censure by this court. ORS 1.430(2); see also Or Const, Art VII
(Amended), § 8(1)(e) (authorizing censure by the Supreme
Court as sanction for violation of rule of judicial conduct).
In this proceeding, the Commission and the accused, the
Honorable Timothy Barnack, a judge of the Circuit Court
of the State of Oregon for Jackson County, have agreed to a
Stipulation of Facts and Consent to Censure (stipulation),
in which the accused has stipulated that he engaged in
conduct that violated the Oregon Code of Judicial Conduct
JR 1-101(A) (judge shall observe high standards of conduct
so that integrity, impartiality, and independence of the
judiciary are preserved) and JR 1-101(C) (judge shall not
engage in conduct that reflects adversely on the judge’s
character, competence, temperament, or fitness to serve as
a judge).
We set out the stipulation in pertinent part:
“The accused stipulates as follows:
“1.  If a contested hearing was held in this matter,
clear, cogent and convincing evidence would be presented
sufficient to establish the facts that follow;
“2.  At all material times herein, the accused was
a judge on the Circuit Court in Jackson County, State of
Oregon.
“3.  In October 2011, defendant Richard Lee Taylor was
convicted of 21 sex crimes including five counts of using a
child in a display of sexually explicit conduct, one count
of sexual abuse in the first degree, one count of sodomy in
the second degree, three counts of encouraging child sexual
abuse in the first degree, and three counts of encouraging
child sexual abuse in the second degree.
Cite as 353 Or 205 (2013) 207
“4.  Taylor’s victims were two 12 year old boys. The
evidence included about 30 video recordings showing
Taylor sexually abusing the boys. The recordings were so
disturbing that jurors thanked Judge Barnack for stopping
some of the video shown during the three day trial. Several
jurors cried. Three jurors asked Judge Barnack whether
there was counseling available to them.
“5.  On January 21, 2012, Judge Barnack sentenced
Taylor to 21 life sentences in prison without the possibility
of parole. Taylor declined to comment during his sentencing
when asked by the judge if he wished to do so.
“6.  Judge Barnack referred to Taylor as a ‘piece of
shit,’ repeatedly asked Taylor if he wanted to salvage his
soul, commented that community members might ask why
Taylor isn’t ‘hanging from a tree’ and that he personally
hopes that Taylor rots in prison.
“7.  Judge Barnack, like the jurors, says he was
traumatized from viewing the videos of the abuse.
“8.  Judge Barnack acknowledges he lost control of his
emotions when Taylor declined to speak at his sentencing.
Judge Barnack felt Taylor evidenced an indifferent and
unsympathetic attitude towards his victims, one of whom
was in the courtroom. Judge Barnack acknowledges that
his comments were inappropriate.
“9.  After sentencing, Judge Barnack sent an email to
the other Jackson County Circuit Court Judges apologizing
for his remarks at the sentencing of Taylor. Judge Barnack
sought counseling from more experienced judges regarding
how best to manage emotionally charged courtroom
situations. Furthermore, Judge Barnack has adopted
procedures such as a prepared script for sentencing to
ensure that such behavior is not repeated.”
Pursuant to ORS 1.430(2), the court has reviewed
the stipulation of facts and the disciplinary action to which
the accused has consented. The court approves the consent
to censure.
The accused is censured.