RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – Prejudicial Statements by Trial Judge

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

JUDICIAL MISCONDUCT

Prejudicial Statements by Trial Judge

State v. Nunes, 205 A.2d 24 (R.I. 1964), sets the standard: “Not only must the judges residing over the courts be honest, unbiased, impartial, disinterested in fact, but it is of the utmost importance that all suspicion to the contrary must be jealously guarded against and if possible be completely eliminated, if we are to give full effect and dignity of the bench and maintain public confidence in its integrity and usefulness.”

• Trial justice granted state’s motion to revoke bail and commit defendant pending sentence after his conviction for assault with intent to commit rape. Noting that defendant’s previous acquittal of rape for related incidents in the same neighborhood on the same day was “a miscarriage of justice,” he referred to defendant’s conduct as threatening “wholesale rape in East Providence.” Id. at 27.
• Even though there was no record of any court ruling that was inherently unfair or hostile to defendant and the comments were made entirely post-conviction, they negated the required impartiality, apparent as well as real.

State v. Nordstrom, 408 A.2d 601 (R.I. 1979). Trial judge should have recused himself after referring to defendants as “bad bastards” in a conversation with defense counsel. R.I.S.C. reversed and remanded.

• The Nunes burden was met. “Although the evidence submitted during the course of the state’s presentation would warrant a person of ordinary sensibilities to be horrified at the conduct ascribed to the various defendants by the prosecution witnesses, it is a familiar principle that judicial officers must keep their minds open until the entire case is concluded and arguments of counsel have been heard. This duty runs counter to human reaction. Nevertheless, it is required in order to vindicate our system of criminal adjudication.” Id. at 602-3.

Taylor v. Wall, 821 A.2d 685 (R.I. 2003). Defendant convicted of burglary, kidnapping, and first-degree child molestation applied for post-conviction relief alleging in part that trial justice made prejudicial comments to jury regarding the use of videotaped testimony of complaining witness given outside the presence of defendant. Specifically, the judge warned that the jury was not to infer from the use of videotape either defendant’s guilt or a need to protect the complaining witness from defendant. R.I.S.C. upheld trial court’s denial of post-conviction relief.

• The court did not address whether the comments were improper because defendant failed to present the issue in a direct appeal taken years prior to the application for post-conviction relief and was therefore barred by the doctrine of res judicata.

State v. Brown, 798 A.2d 942 (R.I. 2002). Trial justice improperly engaged in colloquy with jury foreperson over the meaning of answers given during defense cross-examination of state’s fingerprint expert. When defense counsel objected, the trial justice interrupted and prevented further comment. R.I.S.C. held that although the conduct was impermissible it was harmless, and denied defendant’s appeal.

• Impermissible colloquy with jury:
• “A trial justice should always avoid commenting on the evidence and should always limit his or her response to the actual written question posed by a jury.If jurors do have further questions, the trial justice should send them back to the jury room to put their questions in writing, and the trial justice can then respond accordingly and avoid the danger of responding verbally to jury questions in a manner that could serve to jeopardize the trial process.“ Although the judge committed error, it was harmless in this case. Id. at 948.
• Impermissible conduct toward counsel:
• “The trial justice’s rather premature and brisk, uncourtly cutting off of defense counsel’s attempt to fully voice his objection . . . should be avoided by trial justices in future cases.”. Id.
• “While such conduct by a trial justice is not to be condoned, defense counsel failed to move to strike the trial justice’s earlier comment and failed to move for a mistrial. Defense counsel did not offer any objections until after the colloquy between the trial justice and the jury foreperson had ended, and even then he did not object to any one statement, but to ‘anything more being said by the Court other than a reading of the testimony.’” Id,.

State v. Oliveira, 774 A.2d 893 (R.I. 2001). After discovering that a witness’s microphone was turned off, the trial judge in a first“degree murder case responded, “Sometimes you are just surrounded by assassins.”,Id.at 915. R.I.S.C. held that the trial judge was impartial and did not commit error.

Mattatall v. State, 947 A.2d 896 (R.I. 2008). When sentencing defendant pursuant to habitual offender statute, trial judge articulated his reasons for enhancing sentence by stating that defendant had lied under oath and that record indicated defendant had an “attitude of hostility and a propensity for violent and volatile behavior.” R.I.S.C. held that the statements did not demonstrate prejudice or bias requiring the judge to recuse himself from defendant’s subsequent application for post-conviction relief.

• “The burden is on the party seeking recusal to establish that the judicial officer possesses a ”personal bias or prejudice by reason of a preconceived or settled opinion of a character calculated to impair his [or her] impartiality seriously and to sway his [or her] judgment.’” Id. at 902 (quoting Cavanagh v. Cavanagh, 375 A.2d 911, 917 (R.I. 1977)). Mere criticism is insufficient to establish judicial bias.
• If that burden is not met, judges have a “great obligation not to disqualify themselves.” Id.

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