Judicial Misconduct During Trials

Defined By Case Law

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Judicial Misconduct During Trials Defined
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The Judicial Doctrine of Immunity
 "Immunity applies even when the judge is accused of acting maliciously and corruptly." -- United States Supreme Court 
See Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) Pierson v. Ray, 386 U.S., at 554, Mireles v. Waco, 502 U.S. 9, 9-10, 112 S.Ct. 286, 287, 116 L.Ed.2d 9 (1991).

The appropriate role for a judge to play in a jury trial has been the subject of a number of appeals. Listed below are several rulings dealing with judges conduct during trials.  Read carefully and you will see how rules of conduct are "creatively" interpreted and, in some cases, actually negated as a result.

Courts have said a trial judge must always remain fair and impartial.  Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 709 (9th Cir. 1989).  "He must be ever mindful of the sensitive role [the court] plays in a jury trial and avoid even the appearance of advocacy or partiality."  Id. quoting United States v. Harris, 501 F.2d 1, 10 (9th Cir. 1974).

At the same time, however, courts have recognized that a trial judge is "more than an umpire."   United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988), cert. denied, 492 U.S. 906 (1989).

It is perfectly appropriate for a judge to "take part where necessary to clarify testimony and assist the jury in understanding the evidence."  United States v. De Sisto, 289 F.2d 833, 834 (2d Cir. 1961).

Trial judge "may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition"  Laurins, 857 F.2d at 537

Finding questions calculated to make testimony clearer to jury not improper.   United States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986) (same); United States v. Poland, 659 F.2d 884, 893 (9th Cir.) , cert. denied, 454 U.S. 1059 (1981).

"[t]he standard for reversing a verdict because of general judicial misconduct during trial is rather stringent." Kennedy, 901 F.2d at 709. To sustain a claim of this kind, there must be an "extremely high level of interference" by the trial judge which creates "a pervasive climate of partiality and unfairness." United States v. DeLuca, 692 F.2d 1277, 1282 (9th Cir. 1982).

"A judge's participation [in the trial] justifies a new trial only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality."   Laurins, 857 F.2d at 537

"Because this case comes to us in the posture of a habeas appeal, the question is whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution."  Gayle v. Scully, 779 F.2d 802, 806 (2d Cir. 1985), cert. denied, 479 U.S. 838 (1986); McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985).

"judge's excessive questions and sarcastic comments did not amount to "extreme overstepping of his proper judicial role"--conviction affirmed)   Mostella, 802 F.2d at 362  

"finding trial judge's impatience with defense, displays of irritation, and use of sarcasm, while inappropriate, were not prejudicial"   Poland, 659 F.2d at 894

"A federal court has no supervisory authority over criminal proceedings in state courts. The only standards we can impose on the states are those dictated by the Constitution."   Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not "of sufficient gravity to warrant the conclusion that fundamental fairness has been denied."  Id. at 1572.

"trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process"   Gayle v. Scully, 779 F.2d at 807  

Trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, "approached but did not cross the line that permits [a ruling] that the Constitution has been violated"   Daye, 712 F.2d at 1572

As far as judicial discipline goes, one state reported that "Private admonishments" were meted out in the following instances:

  • The judge made comments that appeared to criticize the jury after its verdict;
  • the judge made comments to the jury reflecting bias about the case;
  • the judge abused his authority in an order involving payment of fees;
  • the judge improperly threatened an attorney with contempt;
  • the judge made remarks during court proceedings that disparaged the litigants and counsel;
  • the judge demeaned a potential juror;
  • the judge delayed in ruling on four matters and executed an inaccurate salary affidavit;
  • the judge proceeded without appointed counsel despite the defendant's statements that he wanted counsel and the judge made comments that disparaged the defendant's version of the case and fostered the appearance that the judge was attempting to pressure the defendant into pleading guilty

"Private advisory letters" were issued in 19 cases which are also summarized in the commission's report, some of which were:

  • The judge engaged in activities away from the courthouse during working hours;
  • the judge delayed for five month in ruling on an issue;
  • the judge made demeaning remarks about an attorney who was not in court;
  • the judge displayed anger and rudeness toward an attorney in open court;
  • the judge displayed sarcasm and derision in remarks toward a pro per litigant in a civil harassment matter;
  • the judge used judicial stationery to obtain an advantage in a personal business matter;
  • the judge smoked in chambers in violation of law and despite being reminded of the prohibition by the presiding judge;
  • the judge used chambers stationery in connection with a personal business dispute;
  • the judge failed to fully disclose on the record the judge's relationship with one of the counsel and so forth

Only three judges were publicly disciplined:

  • One was a retired judge, who altered the record on a previously set bail bond.
  • Another judge was hardly if ever on the bench for a four year period and engaged in other activities. That judge resigned.
  • A third judge was removed from the bench. The reason for his removal was not for his activities on the bench, but on charges that he provided false information on two Personal Data Questionnaires he submitted to the Governor when seeking appointment to judicial office. Among the charges were that he made false representations about the colleges and law schools he attended, that he falsely stated he had received a master's degree, and that he mis-stated the dates he had attended law school, thus hiding the fact that he had failed to pass the California bar examination on several attempts after completing law school. Also that he falsely claimed he served in the Vietnam War.


Many times the reason or purpose for events in our life initially escapes us,
but I am certain we can find reason and/or purpose in everything that happens!

It takes a short time to learn to exercise power, but a lifetime to learn how to avoid abusing it.

We are no longer a country of laws, we are a country where laws are "creatively interpreted."

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