Sunday, June 6, 2010

Looks like the backs of Santa Barbara "GANGS" or the illegal Trial of Jesse James Hollywood will not get Mr. Lynn elected Santa Barbara District Attorney.

Dear Jack and family,

As you can tell I am going to stay on Josh Lynn's ass with out regard to me. I think the D.A. race will not be close and he will lose, or that is the heads up I was given. The situation with the legality of the Superior Court bench here is real and Judge Sterne should have been on the ballot for this week if you have kept up with my blog, funny how that just does not seam to bother any one. What if I am right about Judge Sterne and she became the vocal point to start the avalanche we need? Some times we need to look beyond ourselves and look for map that gets us all what we want exposure. Exposure will bring us all the results we desire! To be honest law enforcement behind the scenes are really pissed off about this pension fund. I really feel the more corruption and proof I can expose is actually welcome by law enforcement to strengthen there hold. 2 weeks ago the Sheriffs replaced there Union reps based on the corruption from the pension plan. 1 rep covered up the investigation about me sitting in Jail 3 months when there was no protection order. I guess they realize now if they will lie to me they will lie to them as well. We need to take advantage of that. Yesterday on my shift 3 cops came in for coffee, we chatted for about 20 minutes and the PENSION FUND was on there mind and I was even told thank you as far as my work in regards to that. I am always looking for media exposure because I feel that is the only way we can get enough eyes looking over there shoulder.

In closing Jack have you given much thought into a publicist? I really feel that not only you but xxxxxx and others even myself belong on radio or in the print media bringing the focus. It seams that the courts will not be effected enough to give us equal access to them until the eyes of the public are monitoring. Funny thing "We The People for The People" has nothing to do with sitting in a court room.

Below is a document my friend xxxxxx sent me and I thought the Hollywoods might find use of it. I am going to post this on my blog so Mr. Lynn knows we have not stopped!

Best Regards as Always

Larry Mendoza

Protecting the Client, the Case and Yourself from an Unruly Jurist
By Charles M. Sevilla

O! It is excellent to have a giant’s strength; but it is tyrannous to use it like a giant.”1

In memorable words to the jury in discharging them, the trial court said this of defense counsel: “`I also realize that you had a difficult and a disagreeable task in this case. You have been compelled to sit through a disgraceful and disreputable performance on the part of a lawyer who is unworthy of being a member of the profession; and I, as a member of the legal profession, blush that we should have such a specimen in our midst.2

There are few hurdles to trying a criminal case more daunting than that of judge misconduct. It is as fundamental an issue as can be faced at trial and this article is written to sensitize the practitioner to the issue and provide legal and practical ideas for obtaining relief when it occurs.

Statement of the Problem
We meet all types of judges in the practice of law. Most are decent most of the time. They don’t view their courtrooms as their private workshops, but rather as the people’s court where all who enter are entitled to respect — including the defense lawyer and client. Everyone knows that a fair trial cannot occur before a biased judge. Constitutional precedent is emphatic on this point.3 But writing or reading about the issue is nothing compared to experiencing the trauma of trial before an arbitrary or biased judge.4

Occasionally, we meet the bully, the 100 percent pure-beef black-robed jackass, who promises to make life a living hell. Fortunately, such judicial donkeys are few and far between. More often, problems with judicial conduct occur with an ordinarily decent judge who is just having a bad day and acts out against the defense because we, as the wave-makers, are the obvious, closest and most vulnerable targets in the courtroom. We are targeted because, if we do our jobs, we obstruct the state’s case with such incendiary devices as the effective assistance of counsel, the presumption of innocence, demanding proof beyond a reasonable doubt and adherence to rules of procedure.

This article discusses the problem of dealing with the bullying judge– be it the full-time or part-time variety. Recognizing the problem, of course, is not difficult. Nothing could be more obvious than being on the short end of repeated judicial barbs. Figuring out what to do, and then doing it, are more complicated.

One thing is clear. If the judge is acting like an ass toward the client or defense counsel, it does no good to engage the court with in-kind retorts. That only provokes predictable responses none of which will be helpful in front of a jury. This article gives suggestions for dealing with judicial misconduct in a way that protects the client’s right to a fair trial and defense counsel from an undeserved sanction for attempting to call the court’s attention to the misconduct.
The varieties of judicial misbehavior are limited only by the imagination as any review of the cases in which judges have been disciplined would reveal.

If during the course of pre-trial litigation, judicial bias appears, one can try to disqualify the judge by timely use of a challenge for cause. Assuming the bias is predictable, an early filing of a peremptory challenge can assuredly work to get the case away from a bad judge,5 unless the state court’s unspoken policy is to assign parties who peremptorily challenge a judge to a like-minded jurist — out of the judicial frying pan and once more into the line of fire. In federal court, peremptory challenges to judges are unavailable and one must seek the far more difficult course of recusing the judge under the appropriate statute.

When faced with serious judicial misconduct, complaints may and should be filed with the relevant governing commissions. For example, the Ninth Circuit, as most if not all federal circuits, has an elaborate set of regulations governing a complaint procedure, the Rules of the Judicial Council of the Ninth Circuit Governing Complaints of Judicial Misconduct Or Disability, available on-line complete with a sample complaint form. These federal rules are enacted under enabling legislation,6 the “Misconduct Statute.”

The states have similar bodies. The California Commission on Judicial Performance has exercised its powers to discipline and remove, suspend, or censure an errant judge.7 But this takes time, often years, and is no immediate aid to counsel or client facing the immediate problems of trial before the bully.

Next, common examples of misconduct are set forth. The suggested remedy for most of them is a specifically stated objection, perhaps a request for a curative instruction, and/or a mistrial. Whenever making an objection to judicial misconduct, it cannot be emphasized enough that the objection must be stated for the record, and it must be based on a denial of the Fifth and/or Fourteenth Amendment due process rights to a fair and impartial tribunal. Failure to do so may result in a waiver.8

Examples and Suggested Remedies
• Pre-trial Sentence Intimidation
Say the court threatens the defendant that if he goes to trial and loses, he faces far in excess of the time the plea bargain offer would bring. Punishing a defendant for exercise of the constitutional right to trial by jury is misconduct.9

• References to the Complaining Witness as the ‘Victim’
In cases where the question of whether the complaining witness is a “victim” is one the jury will decide, the court’s reference to the witness as the “victim,” should be corrected by at least adding the preface “alleged.” It is an argumentative description favoring the state prior to the verdict.10

• Unfairly Admonishing the Defendant and Counsel Before the Jury
The gratuitous comment unfairly denigrating a defendant before the jury can be devastating. “Our courts have on many occasions pointed out the duty of a trial judge before a jury, both in criminal and civil cases, not to do anything which would lead the jury to believe that the judge was of the opinion that one party or the other should receive the verdict, nor to appear to throw his [or her] judicial weight on one side or the other. These cases reiterate the fact that jurors are eager to find, and quick to follow, any supposed hint of the judge as to how they should decide the case.”11 Of course, an unfortunately all too common problem is the court’s taking offense at defense counsel during the trial and dragging him off in chains. 12

The remedy for most of these examples is the properly based constitutional objection, a request for a curative instruction, and/or motion for mistrial.

• Denigrating Defense Witnesses
The classic example of this is when the judge disparages a class of witnesses (say psychiatrists) and the next witness is the defense psychiatrist.13 But any statement of low opinion of the witness qualifies for the remedy of an objection, curative instruction, and/or mistrial.

• Taking Over the Examination of a Witness
A judge may ask questions of a witness, but only when it appears relevant matter is not going to be asked by counsel. Further, the court cannot cast aspersions or ridicule the witness or otherwise become an advocate.14

• Coercing Defense Witnesses
This occurs when the judge, for example, repeatedly admonishes a defense witness about lying or the penalty for perjury. In Webb v. Texas,15 the Supreme Court found this type of coercion (which caused the witness to refrain from testifying) reversible error. The effort may take other forms such as by informing the witness in front of the jury of the privilege against self-incrimination. Remedy: objection, curative instruction, and/or mistrial.

• Denigrating Counsel Before the Jury
When the court makes biased comments during the trial such as by making the jury aware of his negative personal views concerning counsel, this is misconduct. “It is completely improper for a judge to advise the jury of negative personal views concerning the competence, honesty, or ethics of attorneys in a trial.”16

In reversing a tax case for the court’s repeated disparaging interventions in the trial, one court noted: “[J]uries are highly sensitive to every utterance by the trial judge, the trial arbiter, and ... some comments may be so highly prejudicial that even a strong admonition by the judge to the jury ... will not cure the error.”17

• Encouraging or Otherwise Allowing Spectator Misconduct
Expressed judicial bias may itself spur members of the audience to follow suit with their own misconduct in castigating the defense lawyers or their witnesses. Even if not encouraged by the court, the judge has a duty to nip this in the bud. “[The court] has the responsibility to ensure that litigants before it are not subjected to such an indignity of having to run the gauntlet in order to present their case. We thus conclude that the mob atmosphere so tainted the proceedings ....”18 Trial in the midst of a mob atmosphere is the most fundamental deprivation of human rights, and renders any trial a mockery of justice. Thus, when the court fails to quell a disturbance or the gallery’s open association against the defense as by wearing distinctive anti-defendant insignias,
19 the U.S. constitutional assurance of a fair trial is denied.

• Ex Parte Comments to the Jurors
Judicial suggestions given ex parte during the deliberative process or during the trial taint the result and deny the defendant his right to be present.20 The remedy here is illusive because it cannot be addressed until discovered — usually after the verdict. Remedy: if the error is in the record and timely found, direct appeal; if the contact is not in the record, use a petition for habeas corpus.

• Telling Jury It Will Now Entertain the Defense Motion for Judgment of Acquittal
Telling the jury that it is going to rule on a defense motion for acquittal at the conclusion of the prosecution case (and then, of course, denying it), gives a message to the jury. As one court put it, the belief engendered is that the judge believes the “defense was incompetent and a sham and the jury should convict.”21

• Physical Conduct During Defendant’s Testimony
How many times have you seen a judge whose attention has been serious, if not laser-focused, during the prosecution’s case, and then totally disinterested when defense witnesses testify? Perhaps the judge turns his or her chair away from the witness, engages in eye-rolling, or talks with the courtroom clerk. This is as clear a communication of disbelief as if the judge were orally telling the jury to not believe the witness. It is misconduct and the remedy will first include making a record at side-bar of what the judge is doing. If it continues, then object and/or move for mistrial.22

• Comment on the Evidence During Instructions.
The court cannot, under the guise of the right to comment, use that as an opportunity to give a biased view. Thus, the court cannot instruct jurors that it believes the defendant is guilty.23 Any judicial comment on the evidence “must be accurate, temperate, non-argumentative, and scrupulously fair. The trial court may not, in the guise of privilege, withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate fact finding power.24 In essence, the trial judge cannot become an advocate in the guise of commenting on the evidence.25 Remedy: When I was a federal defender, we had a mantra when the judge appeared to be crossing the Rubicon from that of referee to showing bias: “Your honor, I object. The court appears to have left its role as a neutral and detached magistrate and has taken up the role of the prosecutorial partisan.” Then, we would articulate the reasons, and move for a mistrial if it continued.

• ‘Tell it to the Appeals Court’
With the bully judge, respectfully made, proper objections to misconduct will not only engender more misconduct, but a typical retort of, “save that bilge for the appeal.” This too is misconduct. 26 The judge’s expectation of an appeal manifests his belief in the certainty of a jury conviction,27 and this is not a message the jury should be receiving.

• Judge as Witness in the Case
This can come up in two ways. The court makes comments from the bench to the jury about facts without taking judicial notice. This is error because the judge has become an unsworn witness. Another way is for the judge to actually take the witness stand either in the case he or she is trying.28

Judges also may be called to testify in someone else’s case.29 In Merritt v. Reserve Insurance Co.,30 an action involving a bad faith claim against an insurer, the appellate court commented on the impropriety of the judge from the underlying civil action testifying as an expert witness on the persuasiveness of a defense witness at the prior proceeding. The court cited Canon 4 of the Canons of Judicial Ethics which states, “‘A judge’s official conduct should be free from impropriety and the appearance of impropriety....’” For a judge to testify as an expert witness “with respect to matters that took place before him in his judicial capacity” prejudices the other party.31 The court stated, “In such instance the judge appears to be throwing the weight of his position and authority behind one of two opposing litigants.”32 The court held that the trial court erred in allowing the judge to testify as to matters that had come before him in his judicial capacity.

• Negative Reaction to Aggressive Advocacy
Some judges react negatively to thorough representation. Trials are simpler when no one objects or makes motions. Most of this is explained by the judge’s impatience with the case not “moving” along as fast as the judge would like defense counsel is busy record-building, making objections and motions. Remind the court in writing of the defense obligation and right to make a record. Right or wrong, counsel “has the right to an opportunity to present his theory of the case on any occasion where the exigency of the pending point in his judgment requires or justifies....” This includes the right to press a legitimate argument and to protest an erroneous ruling.33

• ‘I’m Going to Talk to Your Boss’
For public defenders, this bit of intimidation is not rare. It is a form of economic intimidation aimed at coercing defense counsel to conform to the court’s expectation of a compliant “officer of the court.” While the court has a right to talk to whom it pleases, it cannot use the threat of calling superiors to punish counsel for advocacy. Any dispute the court has with counsel should be aired with counsel.

• Comments to the Press While the Case is Pending
This is an obvious no no.34

• Personally Challenging the Legal Actions of the Defense
It is not unheard of for judges to file pleadings against the defendant such as when a defendant succeeds on a challenge against the judge for bias. A judge has no authority to attempt to personally appeal a disqualification for cause.35

• Sentencing Misconduct
Inappropriate statements (as opposed to simply legally erroneous ones) crop up from time to time and must be objected to as considerations in sentencing.36 Thus, a sentencing judge who made negative remarks about the defendant’s being on welfare and fathering children out of wedlock, 37or threatened to have the defendants castrated,38 or punish them more severely for demanding jury trials39should be subjected to immediate objection and requests for a new sentencing judge.

The Next to Last Resort
Assume that you have tried everything to bring the judge into line and have been unsuccessful. Presumably, mistrial motions on the issue have been made and denied. The client is most definitely not getting a fair trial, yet the trial is on-going with no prospect for relief in sight. What to do? It’s time to file a motion entitled, “Motion for Fair Trial or for Mistrial.” In this motion, counsel begins with a short statement of the law and ethical mandates that a judge give a defendant a fair trial. Then, in detail, counsel should set forth the pattern of misconduct — everything the judge has done to deny the defendant his constitutional right to a fair trial.40 If possible, attach portions of the reporter’s transcripts, declarations of co-counsel, paralegals or other witnesses who were in court when the conduct took place.

If this motion is to be filed, in all likelihood the caption will emphasize the mistrial request rather than any notion that the demonstrated unfairness plaguing the trial is somehow reparable. One must expect that the judge is going to deny that motion. Perhaps, however, seeing the seriousness with which the record of unfairness had been made and documented, the court may back off from the pattern of misconduct and, in rare cases, solicit suggestions for improvement. The first suggestion to make is that the judge cease the offending conduct. Then, counsel should have ready an instruction more strongly worded than the usual one that the jury must not take any cue based upon anything the judge has said or otherwise communicated. Add, “it has been pointed out to me that some of my words and actions could be misconstrued as biased, and if you have taken them that way, I apologize because in no way should that influence your judgment.”

Final Argument
If the trial has been marred with a number of acrimonious comments and orders from the bench and all remedial efforts have failed to deter the misconduct, the issue must be addressed in final argument. Most of the time when court-counsel battles take place, jurors will side with the court, but if the conduct has been repeatedly overbearing, and if counsel has at all times been respectful, yet tenacious, in not being intimidated into silence, jurors will grow to respect counsel. During final argument, a comment like this may be appropriate to explain counsel’s dilemma:
The court will instruct you that nothing in its conduct or comments during the trial are to be deemed an alignment with the court with either side. Now, given what has transpired during the trial, you may find that hard to follow. You have seen and heard the judge not only rule against me, but do so using very harsh terms. A court once wrote that the “ideal of our legal system is that the judicial should be equated with the just.”

41 I ask that you heed the instruction and not be influenced by the court’s conduct toward me. My client deserves a fair trial by fair jurors in front of a fair judge, and because you are the ultimate decision-makers, into your able hands falls the final burden of fairness. I ask that if you have perceived a bias on the part of the judge that you not let it influence you in any way.

Dealing with a biased judge in trial is as difficult a challenge as can be faced by defense counsel. A trial before a biased judge precludes “that atmosphere of austerity which should especially dominate a criminal trial and which is indispensable for an appropriate sense of responsibility on the part of court, counsel and jury.”42 As long as the defense response is kept professional and the record is properly made, then even if the court does not correct its conduct, there will be a foundation for relief with the jury, on state appeal, or in the federal courts.


1. Shakespeare’s Measure for Measure, act II, scene 2, quoted in many cases to warn against the abuse of judicial power including U.S. v. Worchester, 190 F. Supp. 548, 561 (D.C. Mass. 1960); Gardiner v. A.H. Robins Co, 747 F.2d 1180, 1194 (8thCir. 1984); People v. Fatone, 165 Cal. App. 3d 1164, 1180-1181 (1985), to say nothing of the Bard’s original text. It should be noted at the outset that the tyrannous exercise of power by a judge often means finding counsel in contempt. This paper does not deal with the issue of handling judicial contempt; rather, it is intended to advise on how to avoid such orders. Judicial tyrants have used contempt no matter how respectful counsel may be or how innocent his/her conduct. Contempt should be the last, not the first means of controlling judicial proceedings. Cannon v. Commission on Judicial Qualifications, 14 Cal. 3d 678, 706 (1975). Abuse of that power is a basis for removal from the bench. Ibid. Often, when the bully issues a contempt, it is part of a pattern of misconduct and subject to attack procedurally because of its being a product of judicial misconduct. See, e.g., Ryan v. Commission on Judicial Performance, 45 Cal. 3d 518, 532 (1988) (“ignorance of proper contempt procedures, without more, constituted bad faith.”)

2. Offutt v. United States, 348 U.S. 11, 17 (1954).

3. The right to a fair and impartial judge is central to the guaranteed due process right of a fair trial under the 5th and 14th Amendments to the U.S. Constitution. Bracy v. Gramley, 520 U.S. 899; 138 L.Ed. 2d 97, 104 (1997)(“...the floor established by the Due Process Clause clearly requires a `fair trial in a fair tribunal,’ Withrow v. Larkin, 421 U.S. 35, 46 (1975), before a judge with no actual bias against the defendant or interest in the outcome of his particular case”); Gray v. Mississippi, 481 U.S. 648, 668 (1987)(impartiality of the adjudicator goes to the very integrity of the legal system). The constitutional point is that a “fair trial in a fair tribunal is a basic requirement of due process”); In re Murchison, 349 U.S. 133 (1955)(trial by a judge with an interest in the case is not a fair trial; the same judge presided over a contempt hearing as presided over the grand jury out of which the charges arose); Tumey v. Ohio, 273 U.S. 510, 535 (1927)(“No matter what the evidence was against him, he had the right to have an impartial judge”); Haupt v. Dillard, 17 F.3d 285, 287 (9th Cir. 1994) (the right to a fair trial is a basic right of due process and that this includes the right to an unbiased judge). See Reserve Mining Co. v. Lord, 529 F.2d 181, 185-6 (8th Cir. 1976)(“Judge
Lord seems to have shed the robe of the judge and to have assumed the mantle of the advocate. The court thus becomes lawyer, witness and judge in the same proceeding, and abandons the greatest virtue of a fair and conscientious judge — impartiality.”)

4. I distinguish between the arbitrary and biased judge. The latter is by definition biased and thus invariably prone to rule against the subject of his or her bias. The arbitrary judge is by definition erratic and thus, perhaps by chance, might be fair on occasion. And, a judge can be both. See, e.g., Geiler v. Commission on Judicial Qualifications, 10 Cal. 3d 270 (1973) (judge removed for engaging in bizarre conduct like poking an attorney with a dildo and then threatening to use it in court to curtail cross-examination; he was also found biased against public defenders.) If the judge is a one-hundred percent bully, one has to deal with that judge differently than with the more common situation of the judge who is ordinarily decent, but is having a bad day. The latter is educable and thus may respond to having the misconduct respectfully pointed out. The full-time bully, on the other hand, will deem an effort to point out the problem as a frontal assault of the dignity of the court and most likely will respond with, metaphorically speaking, a nuclear counterattack to intimidate the complainant into silence or jail.

5. No doubt, the exercise of such challenges to the judicial bully will provoke only more bullying. In McCartney v. Commission on Judicial Qualifications, 12 Cal. 3d 512, 531-532 (1974), the judge was removed in part for his vehement criticism of public defenders for exercising such challenges.

6. 28 U.S.C. 351-364.

7. See, e.g., Cannon v. Commission on Judicial Qualifications, 14 Cal. 3d 678 (1975)(judge ordered immediate jailing of public defenders who displeased her and substituted unprepared counsel whom she forced to proceed with the defense of the accused.

8. See, e.g., Ramirez v. United States, 294 F.2d 277, 283-284 (9th Cir 1961)(waived because defendant didn’t raise the issue at trial); People v. Camacho, 19 Cal. App. 4th 1737, 1745 (1993)(failure to timely and specifically object to each of the judge’s questions on the court’s examination of the defendant waives the issue). It will be a rare case where the failure to object at all is excused. See State v. Larmond, 244 N.W.2d 233, (Iowa 1976) where the oppressiveness of the court’s conduct deters an objection, the lack of one will not preclude a later motion on the issue.)

9. In re Lewallen, 23 Cal. 3d 274, 278-281 (1979) (judge’s rhetorical question at sentencing, which revealed he gave consideration to defendant’s election to plead not guilty in imposing sentence, constituted reversible error.)

10. Allen v. State, 644 A.2d 982,983 n.1 (Del. 1994)(“when, as here, consent is the sole defense in a rape case, the use of the term “ victim” by a prosecutor at trial is improper and to be avoided”) accord Veteto v. State, 8 S.W.3d 805, 816-817 (Tex. App. 2000); State v. Wright, 2003 Ohio 3511, P6 (Ohio Ct. App., 2003).

11. People v. Cole, 113 Cal. App. 2d 253, 261 (1952).

12. See Meeks v. U.S., 163 F.2d 598, 601 (9th Cir. 1947)(judge rebuked and then held counsel in contempt for asking key witness highly relevant and proper questions about his criminal record; murder conviction reversed.)

13. People v. Terry, 2 Cal. 3d 362, 298 (1970).

14. McCartney v. Commission on Judicial Qualifications 12 Cal. 3d 512, 533 (1974).

15. 409 U.S. 95 (1972).

16. People v. Fatone, 165 Cal. App. 3d 1164, 1174-1175 (1985), and cases cited. Repeated dyspeptic comments and one-sided rulings cannot be easily erased in juror’s minds. See, e.g., Maheu v. Hughes, 569 F.2d 459, 472 (9th Cir. 1977). Federal appellate courts frown upon such partial or arbitrary displays of judicial conduct and reverse convictions when the conduct could affect the fairness of the outcome. See, e.g., Walberg v. Israel, 766 F.2d 1071, 1073 (7th Cir. 1985); Ah Kee Eng, 241 F.2d 157, 161 (2nd Cir. 1957) (“...repeated indications of impatience and displeasure of such nature to indicate that the judge thinks little of counsel’s intelligence and what he is doing are most damaging to a fair presentation of the defense”); see also U.S. v. Carreon, 572 F.2d 683, 686 (9th Cir. 1978); U.S. v. Harris, 501 F.2d 1, 10-11 (9th Cir. 1974); U.S. v. Pena-Garcia, 505 F.2d 964, 967 (9th Cir. 1974). Sometimes the criticism comes in the form of attempts at humor and that too can be misconduct. People v. Melton, 44 Cal. 3d 713, 753-754 (1988). See Rigney, “Gestures, Facial Expressions, or Other Nonverbal Communication of Trial Judge in Criminal Case as Ground for Relief,” 45 ALR5th 531.

17. Bursten v. U.S., 395 F.2d 976, 983(5th Cir. 1968).

18. Altemose Const. Co. and Energy Contracting Co. v. N.L.R.B., 514 F.2d 8, 13 (3rd Cir. 1975). In California, as in all states, “[t]he trial judge is under a duty to preserve order in his courtroom. [Citations].” People v. Slocum, 52 Cal. App. 3d 867, 883 (1975), cert. denied, 426 U.S. 924 (1976) (the judge must prevent conduct which would obstruct administration of justice, such as expression of opinion about merits of case in jury’s presence). As stated in People v. Fleming, 166 Cal. 357, 377 (1913):
While the courts cannot and do not desire to control public sentiment as to the merits of a cause, they are required, if there be anything in the guaranty of a fair and impartial trial, to see that such public sentiment is not expressed to or in the presence of the jury in such a way as to be likely to influence their determination. It goes without saying that a trial court should take every precaution to prevent anything by which, to use the words of the supreme court of South Carolina in State v. Weldon, 91 S.C. 40, [39 L.R.A. (N.S.) 667, 74 S.E. 45], the jury may `be overawed, or their minds influenced by an atmosphere surcharged with hostility or partiality.’”

In Arizona v. Gevrez, 148 P.2d 829 (1944), a murder trial with an insanity defense, the defendant was held not to have received a fair trial in part because the mother of the deceased, who sat in close proximity to the jury, on different occasions wept openly such that the bailiff went over to her to console her. In reversing the conviction, the appellate court noted: “The best witness in a trial sometimes never takes the witness stand; the greatest influence often comes from the unsworn person who is allowed to parade before the jury. We cannot, however, find fault with the mother of the deceased, but we do say the laxness of the court in permitting her to remain so near the jury, and her deportment while there, were very prejudicial to the rights of the appellant and should not have been allowed. Id. at 305-306. In Commonwealth v. Hoover, 75 A. 1023 (1910), another murder case where insanity was the only defense, spectators frequently made obvious their hostility to the defense. Reversing, the appellate court stated: this “should not have been tolerated [by the trial court] for a moment.” Id. at 1023. The spectator misconduct included, as in petitioner’s case, sneering and snickering while the defense mental health expert testified. Reversing the conviction, the court ruled: “the [trial] atmosphere was polluted by the breath of hostile public sentiment, which had no right to breathe in the court room. The right of the prisoner was to be tried there decently and in order, as if there was no public sentiment against him, and the duty of the court was to see that he was so tried; but he was not. A resentful and jeering audience treat his only defense with open contempt and ridicule, with the evident purpose of trying to influence the jury against him. Our imperative duty is to direct that he be tried again.” Id. at 1024.

19. Demonstrated partisan conduct of a dedicated group can prejudice a defendant’s right to a fair trial. Woods v. Dugger, 923 F.2d 1454, 1459-1460 (11th Cir. 1991); Rodriguez v. Florida, 433 So. 2d 1273, 1276 (1983) (repeated emotional outbursts by wife of deceased created an “atmosphere in which appellant could not receive a fair trial.”)

20. Rushen v. Spain, 464 U.S. 114, 117-118 n. 2 (1983); People v. Knighten, 105 Cal.3 128 (1980).

21. U.S. v. Coke, 339 F.2d 183, 186 (2nd Cir. 1964)(“When the attention of the panel was focused on the ultimate issue of the guilt or innocence of the accused, the trial judge’s abrupt denial of the motion following the repeated deprecating interjections in the examination of witnesses by the defendant’s counsel, may well have implied that the defense was incompetent and a sham and that the jury should convict. Such damage could not very well have been prevented by the perfunctory instructions given.”) Remedy: objection, curative instruction, and/or mistrial.

22. See, e.g., Spruance v. Commission on Judicial Performance, 13 Cal. 3d 778, 797 (1975)(judge made “raspberry” sounds to register his disbelief of defendant’s testimony; this was found a contemptuous, deliberate and malicious attempt to prejudice the defendant’s case); People v. Mays, 188 Ill. App. 3d 974; 544 N.E.2d 1264 (Ill. 1989)(judge slammed pencil down during testimony, but no timely objection; held: issue raised on motion for new trial sufficient to warrant review and reversal.)

23. People v. Cook, 33 Cal. 3d 400 (1983).

24. People v. Rodriguez, 42 Cal. 3d 730, 766 (1986).

25. People v. Cummings, 4 Cal. 4th 1233, 1305 (1993).

26. People v. Alfaro, 61 Cal. App. 3d 414, 426 (1976)(remarks that if trial court were in error, defense counsel could “tell it to the Court of Appeals [sic]’’ were possibly indicative of judge’s belief in defendant’s guilt and inappropriate; in a close case “one such remark could be prejudicial.”]

27. Cf., Caldwell v. Mississippi, 472 U.S. 320, 328-329 (1985).

28. See, e.g., Brown v. Lynaugh, 843 F.2d 849, 851 (5th Cir. 1988)(where the presiding judge took the stand in a bail jump trial to say he was the judge when the defendant fled, in reversing, the appeals court wrote: “It is difficult to see how the neutral role of the court could be more compromised, or more blurred with the prosecutor’s role, than when the judge serves as a witness for the state.” See also McCartney v. Commission on Judicial Qualifications, 12 Cal. 3d 512, 534 (1974).

29. See People v. McGhee, 193 Cal. App. 3d 1333, 1347-1348 (1987)(court noted in dicta that if judge’s testimony is necessary to a case, he or she should be subpoenaed and cited the commentary to Canon 2 of the Code of Judicial Conduct: “‘The testimony of a judge as a character witness injects the prestige of his office into the proceedings and may be misunderstood to be an official testimony.’”)]

30. 34 Cal. App. 3d 858 (1973).

31. Id. at 883.

32. Ibid.

33. Lambert v. U.S., 101 F.2d 960, 963 (5th Cir. 1939); Bennett v. Superior Court, 99 Cal. App. 2d 585, 595-595 (1950).

34. Ryan v. Commission on Judicial Performance, 45 Cal. 3d 518, 543 (1988)(“Judges should abstain from public comment about a pending or impending proceeding in any court....”); In Re Boston’s Children First, 244 F.3d 164(1st Cir. 2001)(district judge’s comments to the press about case required recusal); U.S. v. Microsoft Corp., 253 F.3d 34, 107-111 (D.C. Cir. 2001) (same).

35. Curle v. Sup. Ct., 25 Cal. 4th 1057 (2001) (the Court of appeal lacked authority to hear a disqualified judge’s appeal because the statute authorizing appeal refers to the litigants in underlying action, not the judge disqualified from presiding.)

36. See People v. Scott, 9 Cal. 4th 331, 353 n. 16 (1995), which holds that defense counsel’s failure to object to sentencing errors will bar raising those errors on appeal except for those errors deemed jurisdictional.

37. In People v. Bolton, 23 Cal. 3d 208,217 (1979), the Court wrote:

Consideration of a defendant’s family life may be highly relevant at a probation and sentence hearing. However, the trial court’s remarks were unrelated to any rational attempt to assess the effect appellant’s home environment had on his criminal conduct, or was likely to have in the future. Neither the fathering of children out of wedlock nor the receipt of welfare support had any relevance to the question of whether appellant could best be rehabilitated by allowing him to continue normal community contacts. (ABA Standards, Probation (1970), std. 1.2(ii).) Nor were these factors relevant to the questions of whether confinement was necessary to protect the public from appellant or whether a sentence of probation would “unduly depreciate the seriousness of the offense. . . .” (ABA Standards, Probation, supra, std. 1.3(a)(I), (iii).).... A trial court’s discretion does not extend to basing a sentence, even in part, on the fathering of children out of wedlock or the receipt of welfare. To hold otherwise would be to introduce an invidious discrimination into our sentencing procedures as well as to undermine numerous standards of judicial conduct.”

38. In United States v. Duhart, 496 F.2d 941 (9th Cir. 1974), the judge stated he could put defendant in the same room with husbands of sex offense victims and possibly cut “something” out of the defendant’s body.

39. In re Lewallen, 23 Cal. 3d 274, 281 (1979), held that a judge is precluded from imposing a more severe sentence based on the accused’s demand to proceed to trial because it chills the exercise of the constitutional right to trial by jury. In Ryan v. Commission on Judicial Performance (1988) 45 Cal. 3d 518, 534, the judge was removed in part for using harsh sentencing as a punishment for going to trial. See also Schaffner v. Greco, 458 F.Supp. 202 (S.D.N.Y. 1978)(trial judge’s bias during trial and repeatedly trying to get the defendant to plead guilty invalided the guilty plea.)

40. See, e.g., People v. Santana, 80 Cal. App. 4th 1194, 1210 et seq. (2000).

41. Geiler v. Commission on Judicial Qualifications, 10 Cal. 3d 270, 286 (1973)(“No more fragile right exists under our law than the rights of the indigent accused; consequently these rights are deserving of the greatest judicial solicitude. The ideal of our legal system is that the judicial should be equated with the just. Such an ideal cannot be achieved if one man clothed with judicial power may ignore with impunity such a basic institutional mandate as the sanctity of the attorney-client relationship merely because the attorneys are young deputy public defenders and their clients are indigent.”

42. Offutt v. United States, 348 U.S. 11, 17 (1954). See also United States v. Bland, 697 F.2d 262, 265-66 (8th Cir. 1983) (“A judge’s slightest indication that he favors the government’s case can have an immeasurable effect upon a jury”)

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