The trial of Paul Manafort has been in the news. I read in the New York Times about the conduct of United States district judge Thomas Ellis III. He is a 78 year old senior judge for the Eastern District of Virginia appointed by Ronald Reagan. His courtroom demeanor is best summarized by what he said at one point which was: “I am a Caesar in my own Rome.” That’s exactly how he has been acting throughout the trial, especially towards the prosecution. For example, in opening statement the prosecutor was describing the wealth of the defendant to support the charge of failure to report income. When he said to the jury “the evidence will show” Manafort was was guilty in that regard, the judge broke in to admonish the prosecutor and then told the jury “it isn’t a crime to have a lot of money and to be profligate in your spending.” During the trial it was reported that he routinely broke into the questioning by the lawyers to involve himself or criticize the questioning. He was generally abusive towards the lead prosecutor Greg Andres and during a recess confronted him angrily. It was reported he said: “look at me” he demanded slamming his hand on the wooden ledge. “Don’t look down. Don’t roll your eyes,” he told Andres. He has been hostile and a judicial bully by treating the lawyers as if they were schoolchildren.
The code of conduct for United States judges , Canon 2, says: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 3 says: “A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in the official capacity.” According to media reports Judge Ellis violated these duties of judicial conduct and ethics.
There is a standard which judges must observe. They are not above the law. Some judges abuse their position by being unjustifiably rude, hostile or unfairly critical and abusive towards lawyers who appear before them. More importantly, judges can communicate loudly and clearly their opinions by their nonverbal conduct as well as their verbal. This kind of conduct very often constitutes a prohibited comment on the evidence. While there is some uncertainty about whether a federal judge is empowered to comment on evidence, it is uniformly observed that great caution is called for in that regard. As United States vs Goodwin 272 F. 3rd 659 (4th circuit 2001) pointed out regarding federal trial judges:
“The trial judge must always remember that he occupies a position of preeminence and special persuasiveness in the eyes of the jury, and, because of this, he should take particular care that his participation during trial – whether it takes the form of interrogating witnesses, addressing counsel, or some other conduct – never reaches the point at which it appears clear to the jury that the court believes the accused is guilty. He is always obligated to retain the “general atmosphere of impartiality” required of a fair tribunal, and must not – under any circumstances – become an advocate for the prosecution. The obligation of the prosecutor is to prosecute, while that of the defense lawyer is to defend, each in an aggressive and professional manner. And the judge must judge – fairly and impartially.”
What about state trial judges? The Washington Code of Judicial Conduct 2.8 regarding treatment of litigants, witnesses and lawyers says:
“(B) 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.” As to conduct which amounts to a comment on the evidence, the Washington Constitution, Article 4, Section 16 prohibits the trial court from “conveying to the jury his or her personal attitudes towards the merits of the case.” Civil Rule 51 dealing with instructions to the jury says: “(J) comments upon evidence. Judges shall not instruct with respect to matters of fact, nor comment thereon.” The trial court commits error when it communicates to the jury it’s feelings as to the value of a witness’s testimony State vs Francisco, 148 Wn App 168 (2009). Furthermore, the trial court’s feelings do not have to be expressly conveyed to the jury. It is sufficient if there merely implied. State vs Levy 156 Wn 2d 709 (2006).
Some judges however, think they know best on all subjects being tried before them and believe they know best about how to conduct a trial as well. Too often, they inject themselves into the trial in a way that demeans the lawyer and communicates to the jury a comment on the evidence through nonverbal as well as verbal communication. Here are are some mild examples of questionable judicial conduct from one jury trial transcript that occurred in a Washington within the last year. The names and content have been changed but not the words.
The judge, apparently not satisfied with the witnesses answer and without any request from the lawyer takes over by saying to the witness: “He’s wondering in March, April and May, was your total bill about $50,000? A. Somewhere in that neighborhood. The court: Was the bill submitted to Mr. Smith for the work you did?” The judge apparently decided the lawyer wasn’t doing a good enough job and he needed to get involved even though no one asked for it. Jurors observing this would draw impressions about both the lawyer and the witness by the nonverbal communication.
On another occasion, after an answer from the witness and the lawyer moved on to a new subject, the court interjected: “It’s still not clear on your answer to the question? Did you get records or not?” Even though the lawyer was satisfied with the answer, the judge decided to interrupt the examination and ask for clarification.
During cross examination, in the trial, another lawyer asked the question “Did you get the depositions?” The witness gave a response. Before the lawyer could continue, and without any request from counsel, the judge took over: “Okay, here is the question he asked you. Whether you knew from your review of the discovery and understood from your review of the discovery, that Mr. Brown had left the public sector and gone to the private sector, and did you know that or not know that or does that accord with your understanding?” Not only is the question confusing and compound it communicates the suggestion the witness was evasive to the point the judge had to jump in without any request to do so.
When one of the lawyers asked a witness a question, the judge, before there was any objection to the question injected: “We covered that. She said she didn’t review anything other than what was in her report. She said she didn’t talk to any collateral sources or review any other material.” This is a direct comment on the evidence and an improper interference in the questioning of the witness.
Demonstrating a lack of knowledge of the rules of evidence, the judge’s response to an objection of lack of foundation, overruled it saying: “The jury will determine if there is a foundation.”
The question is what a trial lawyer should do when you have a judge like federal judge Ellis who is a judicial bully or an undisciplined state judge who prejudicially injects himself or herself into the trial? Gerry Spence wrote a three part blog on “How to Survive a Tyrant Judge” /https://gerryspence.wordpress.com/2008/08/21/how-to-survive-the-tyrant-judge/
But, the truth is that when you are dealing with an incompetent or undisciplined judge your power to do anything about it is like the passenger on the airplane who gets involved in a dispute with the flight attendant. You can get ejected from the airplane and miss your flight whether you were right or not. But, if it is bad enough to impair the fairness of trial you need to act. In trial, one response is to provide the judge with motions to instruct the jury to correct the conduct or to refrain from future conduct or similar remedies to signal the court about the problem. It also lets the court know a record is being made. Filing briefs documenting your legal position educates judges and enhances your record for appeal. Normally, your demeanor should be calm and professional briefly giving your concern or position. Open and truthful concern is better that moral outrage. If the situation becomes so untenable as to substantially risk an adverse outcome, consideration for taking a nonsuit, if possible, should be evaluated.
There are trial judges who do not know the Rules of Evidence and those who apparently believe they are not bound by them and who make up their own rules of evidence. There are trial judges who are rude, hostile and abusive towards lawyers and litigants. And there are trial judges whose demeanor or verbal statements communicate to the jury their opinions about evidence or the case. All who are guilty of these judicial failures violate the most fundamental constitutional right of people to have to a fair and impartial trial.