The “Tri-Pellate” Lawyer: Improper Judicial Comments
Chief Justice Roberts famously told the Senate Judiciary Committee during his nomination hearing that “[j]udges are like umpires…it’s my job to call balls and strikes and not to pitch and bat” because “[n]obody ever went to a ball game to see an umpire.” This common refrain from judges seemingly conflicts with Judge T.S. Ellis’ reported conduct during the recent Paul Manafort trial. At that trial, Judge Ellis repeatedly rebuked the lawyers in front of the jury. He interrupted the prosecutor’s questions to witnesses about Manafort’s spending habits and said in front of the jury “[t]his is hardly a good expenditure of time” because [i]t isn’t a crime to be profligate in your spending.” He also chastised defense counsel in front of the jury while he was questioning witnesses about Manafort’s contribution to politics, stating “I take it you plan to offer evidence.” After a witness testified that Manafort “was good at knowing where the money was and how to spend it”, Judge Ellis interjected in front of the jury that Manafort “wasn’t that great at it.” When do a judge’s comments in front of the jury transition from keeping a case under control to erroneously compromising a litigant’s right to a fair trial?
Generally, judges must remain impartial and avoid any appearance of partiality. State v. Bible, 175 Ariz. 549, 595 (1993). A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. Ariz. CJC R.1.2 “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.” Ariz. CJC R.2.8A
A trial judge must also refrain from taking any action calculated to influence the jury or likely to prejudice the defendant.” Bible, above. It is error for a judge to make remarks in the presence of the jury “indicating his opinion as to the credibility or lack of credibility of a witness.” State v. Garcia, 138 Ariz. 211, 217 (App. 1983). This is, seemingly, because “[j]uries entertain great respect for [the judge’s] opinion and are easily influenced by any suggestion coming from him. As a result, he must abstain from conduct or language which tends to discredit or prejudice (any party) or his cause with the jury.” Searcy v. Justice, 202 S.E.2d 314, 317 (N.C.1974)
It is also error for a judge to express an opinion “as to what the evidence proves.” State v. Barnes, 124 Ariz. 586, 590 (1980). Courts should also refrain from humor that might denigrate a party or attorney. People v. Monterroso, 34 Cal.4th 743 (Cal. 2004).
“Statements by the judge that are neither an improper comment to the jury nor prejudicial…do not constitute error.” State v. Williams, 113 Ariz. 14, 16 (1976); “A claim of improper judicial remarks must be evaluated according to the circumstances of each case.” State v. Barr, 183 Ariz. 434, 442 (App. 1995). However, “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge . . . [however,] they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). “Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as . . . judges, sometimes display.” Id. at 555-56.
Judges have, in front of the jury: asked attorneys whether they were not taught better in their first year of law school; referred to attorney behavior as “shyster stuff”; and called attorney examinations “ridiculous.” A. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex.L.Rev. 629, 683 (1972). A New York trial judge recently erred by telling counsel during closing argument that he was “turning this into a comedy and its not” and to “please behave like a professional, please and not like a clown. People v. Damian Liggett, 76 A.D.3d. 860 (N.Y.App. 2010) Another judge, when asked to excuse some defendant town officials to attend town business, replied in front f the jury that “[i]t would suit me just fine they never come back” because “[a]ll politicians go to all meetings. I imagine they will have a pigpicking on the grounds” Russell v. Town of Morehead City, 370 S.E.2d 56 (N.C.App. 1988). On the other hand, “[a] tart remark [by the trial judge] or two might be what is needed to keep a lengthy trial on track.” United States v. Ecklin, 528 F.App’x 357, 363 (4th Cir. 2013).
A tri-ppellate lawyer that believes a judge has made inappropriate and prejudicial comments in front of the jury has to make a very difficult decision: object and risk the judge’s further ire or not object and risk waiver (except for fundamental error). This decision seemingly hinges on whether counsel truly believes that the judge’s comment is likely to transform the outcome of the trial. Such prejudice is a necessary predicate to a successful appeal. Thus, if counsel truly believes the judicial remark rises to that level an objection should be made in order to preserve that issue for appeal.
This article is intended for litigators to consider issues from both a “trial” lawyer and “appellate” lawyer perspective, and not just one or the other. Hence, a “tri-pellate” lawyer perspective is encouraged.
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