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Judge’s Repeated Interruptions of Counsel: Misconduct?
It is imperative that judges hold themselves out as fair and impartial throughout a trial to preserve the jury’s ability to consider the evidence according to the rules of evidence, the credibility of the parties and the evidence’s relevancy within the context of the charges.
Summary in 50 Words or Less: Sometimes, a judge cannot resist the chance to be a prosecutor, as the following summary of a Solano County burglary case exemplified, resulting in reversal of the conviction by the First Appellate District because it was prejudicial judicial misconduct.
Malik Williams was charged in Solano County Superior Court with one count of felony burglary (Penal Code § 459). Malik allegedly entered “an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by M.T., with the intent to commit larceny and any felony.”
At trial, M.T. testified that as he was driving home from work on March 30, 2016, he found the back door to his home open and two men walking in the alley next to his house. He pursued the men in his vehicle, but lost sight of them as they ran and got into a red Mustang. M.T. identified them as two black men, but “didn’t really get a great look at them” and could only see their silhouettes as the sun was in his face.
M.T. called the police and then returned home to surveil the damage – jewelry, a cash box, and video game equipment had been stolen. M.T. had locked the back door when leaving his house and concluded the point of entry was his window, as it had been pried open and the window lock was broken.
The police officer who responded to the location was able to lift fingerprints from the broken window and booked them into evidence. A fingerprint analyst then compared those with defendant’s fingerprints taken from an Automated Fingerprint Identification System (AFIS) report generated when defendant was arrested in 2014. Mr. Williams’ address was 0.3 miles from M.T.’s house.
Thereafter, the officer showed M.T. a photograph of Mr. Williams, but M.T. could not identify Williams as one of the men he saw in the alley. Williams’ home was not searched for stolen property and none of the property was otherwise located in Williams’ possession. Finally, Williams did not have red Mustang registered in his name. Only his fingerprints tied him to the burglary.
1st Appellate District Court of Appeals San FranciscoAt trial, when the prosecution indicated it intended to call Department of Justice (DOJ) latent print analyst Vivian Zhang, defense counsel moved to preclude or limit her proposed testimony on grounds that fingerprint analysis does not pass muster under Frye v. United States (D.C. Cir. 1923) 293 F. 1013 and People v. Kelly (1976) 17 Cal.3d 24 and requested an Evidence Code § 402 hearing. The judge then belittled defense counsel for not having his own fingerprint analyst expert for trial.
When Zhang then was allowed to testify at trial, Judge Dan Healy interrupted defense counsel with objections of “That’s argumentative” and took over cross-examination of her to rehabilitate the expert and helped the prosecutor.
Williams was then convicted and appealed, arguing that Judge Healy committed prejudicial misconduct during the questioning of the prosecution’s fingerprint expert by repeatedly interrupting defense counsel’s cross-examination to cut off responses or ask its own questions, and then, after redirect, asking a series of questions implying that the defense counsel have, but failed, to hire its own expert.
The First Appellate District agreed that Judge Healy improperly aligned itself with the prosecutor in the minds of the jury by the manner and content of his questioning of the fingerprint expert, and that the questioning constituted prejudicial misconduct that warrants reversal.
The First Appellate District explained its reasoning by tracing its analysis. The initial step in its inquiry was to determine whether the trial court’s examination of a witness constituted judicial misconduct. People v. Perkins (2003) 109 Cal.App.4th 1562, 1567. It then explained that if it found there was misconduct, the court must then assess whether the misconduct prejudiced defendant such that reversal is warranted. People v. Harris (2005) 37 Cal.4th 310, 351.
The First Appellate District acknowledged that under Evidence Code § 775, a judge “may call witnesses and interrogate them the same as if they had been produced by a party to the action, and the parties may object to the questions asked and the evidence adduced the same as if such witnesses were called and examined by the adverse party.” This power is consistent with “the right and the duty of a judge to conduct a trial in such a manner that the truth will be established in accordance with the rules of evidence.” People. v. Corrigan (1957) 48 Cal.2d 551, 559.
However, this in inherently dangerous because jurors rely with great confidence on the fairness of judges and upon the correctness of their view expressed during trials.
Here, Judge Healy’s question aligned the court on the side of the prosecution, so it was judicial misconduct. The next step is to determine if it was prejudicial. Under People v. Watson (1956) 46 Cal.2d 818, 836, the conduct is prejudicial if it is “reasonably probable that the jury would have reached a different guilt verdict had the court refrained from asking such questions.” People v. Harris (2005) 37 Cal.4th 310, 351. Any doubt as to whether prejudice has occurred is to be resolved in favor of the defendant. People v. Campbell (1958) 162 Cal.App.2d 776, 787-788.
Here, the court analogized Judge Healy’s conduct to a judge in People v. Robinson (1960) 179 Cal.App.2d 624, wherein a judge also asked lots of questions that favored the prosecution and tipped the scales in favor of the prosecution.
We bring this summary to the reader’s attention because often this does happen and defendants may feel like there is no recourse. There is: a motion for a new trial, as was done here.
The citation for the First Appellate District Court ruling discussed above is People v. Malik Williams (1st App. Dist., 2021) 60 Cal. App. 5th 191, 274 Cal. Rptr. 3d 242.
For more information about judicial misconduct, please click on the following articles:
