Two recent decisions reflect remarkably different values in how trials are conducted \u2013 one addressing whether we need judges who are awake and alert, the second whether it is permissible to attack defense counsel in a criminal case as a truth-twisting purveyor of information.<\/p>\n
Let\u2019s start with the judges.\u00a0 On November 27, 2019, a unanimous Kansas Supreme Court held it was not \u201cstructural error\u201d \u2013 an error that goes to the “entire conduct of the trial from beginning to end[]” and thus depriving defendants of the “basic protections” of a criminal trial.\u00a0 Neder v. United States<\/u>, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Rose v. Clark<\/u>, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 [1986]).\u00a0 The decision is State v. Johnson, 2019 Kan. LEXIS 340.<\/p>\n
What was the reasoning?\u00a0 There were two components, the first being in effect \u2018well, no other court has called this structural error, so we won\u2019t either.\u2019\u00a0 The second was that the reviewing court could\u00a0 not find a moment where the Judge did not appear to be less than engaged:<\/p>\n
The record of the time-period in question does not suggest an absent judge\u2014quite the opposite. The court did not read its preliminary jury instructions until 3:30 that afternoon. After the judge administered the lengthy preliminary instructions\u201415 pages in the trial transcript\u2014the court instructed the parties to give their opening statements. Following opening statements, the court asked the State to call its first witness.<\/p>\n
During the State’s direct examination, the State offered five exhibits\u2014all of which the trial judge admitted into evidence. When the State finished its direct examination, the judge called upon Johnson to cross-examine\u00a0[*12]\u00a0 the witness. During that cross-examination, the State lodged one objection. The court promptly sustained the objection. After the judge sustained the objection, the defense ended its cross-examination and the judge asked the State for any redirect. The State conducted a brief redirect, and the court recessed for the day. So while the trial transcript contains no notation of when, precisely, the judge was nodding off, it also does not show any lapses of judicial oversight during the window of time in question.<\/p>\n
2019 Kan. LEXIS 340, *11-12.\u00a0 Restated in plain English, when there were objections or procedures needed [e.g. \u2018call your next witness\u2019] the judge did respond.\u00a0 Presumably this is a credibility determination \u2013 there was no real or substantial nodding off.\u00a0 But there is a second point here \u2013 it views the role of judge as reactive, a person who answers to the word \u201cobjection.\u201d\u00a0 There is no vision of the need for a judge to be proactive<\/em> \u2013 to be alert and step in sua sponte<\/em> if matters were to go off the rail.<\/p>\n This notion of the judge as being needed only to be responsive to requests form counsel is not limited to this case.\u00a0 A LEXIS search with the terms identified 27 cases; and in one that same philosophy was made manifest:<\/p>\n Because the evidence in this case was overwhelming and the parties did not call upon the trial judge to make any evidentiary rulings at a time when the judge was asleep,<\/em> the judge falling asleep was harmless error.<\/p>\n People v. Sheley, 2017 IL App (3d) 140659, P21, 90 N.E.3d 493, 498, 2017 Ill. App. LEXIS 669, *12, 418 Ill. Dec. 335, 340.\u00a0 Put more simply, the right to an awake judge depends solely on whether attorneys were themselves awake and responsive to error.<\/p>\n Only one of the 27 cases raised a more cautionary note.\u00a0 \u201cWe caution, however, that having a judge or juror sleep during a trial could be structural error.\u201d \u00a0In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 145, 385 P.3d 135, 145, 2016 Wash. LEXIS 1369, *19<\/p>\n The sleeping judge phenomenon is not new \u2013 a reported decision from 1901 discusses the problem but \u2013 there, in a civil case \u2013 again finds no substantial harm and puts the onus on counsel.\u00a0 .<\/p>\n Conceding the irregularity of the presiding judge going to sleep while a trial is progressing, we cannot hold the mere circumstance of his having slept four or five minutes reversible error<\/strong>. If the judge<\/strong> was asleep<\/strong>, as certified, counsel must have known it, and knowing it they should either have suspended the examination of the witness then testifying until the judge awoke, or have awakened him by calling his attention, in a voice sufficiently loud to awake him, to the fact that the trial was progressing. Counsel did neither,<\/p>\n Chicago C. R. Co. v. Anderson, 193 Ill. 9, 12-13, 61 N.E. 999, 1000, 1901 Ill. LEXIS 2618, *5.<\/p>\n What is the upshot?\u00a0 If judges need only be alert when counsel does object, then maybe these decisions make sense.\u00a0 But if the role of the judge is greater \u2013 to be alert and to step in when necessary \u2013 then the focus of these cases is wrong.\u00a0 Sleeping judge, judge on the telephone, judge off the bench \u2013 does not \u00a0any of those deprive an accused in a criminal case of the \u201cbasic protections\u201d of a civil trial?<\/p>\n Now, on to \u2018lying lawyers.\u2019\u00a0 In what is unquestionably one of the most over-the-top and unprofessional closing arguments ever given in a criminal trial, the following occurred:<\/p>\n Among the several blatantly improper comments the prosecutor made in his closing argument to the jury in Oscar Fortune’s murder trial, he claimed, “My job is to present the truth,” and said, “if you look in the . . . Code of Laws . . . [, I] have to say what the truth is.” “On the other hand,” the prosecutor told the jury, “the defense attorneys’ jobs are to manipulate<\/strong> the truth. Their job is to shroud<\/strong> the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to –without regard for the truth.” The prosecutor explained that if he\u2014the prosecutor\u2014believes “somebody else did the crime,” then he must “dismiss it.” “And [if] I know the person\u00a0 has done something that I think the facts show they’re guilty of, then I can’t [dismiss] it. I have to go forward with it.”<\/p>\n Fortune v. State, 2019 S.C. LEXIS 115, *1-2 (December 4, 2019).<\/p>\n While much of the court\u2019s repudiation of this conduct focused on the prosecutor self-declaring as the apostle of truth, the South Carolina Supreme Court also condemned the attack on defense counsel:<\/p>\n The assistant solicitor in this case also improperly characterized the role of defense counsel. We find this misconduct is also inexcusable. After claiming his role “to show the truth,” the assistant solicitor told the jury,<\/p>\n On the other hand the Defense attorneys’ jobs are to manipulate<\/strong> the truth. Their job is to shroud<\/strong> the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to — without regard for the truth — to get a not guilty verdict.<\/p>\n Courts have universally condemned this type of statement by a prosecutor. As the United States Court of Appeals for the Ninth Circuit has stated,<\/p>\n [It is not] accurate to state that defense counsel, in general, act in underhanded and unethical ways, and absent specific evidence in the record, no particular defense counsel can be maligned. Even though such prosecutorial expressions of belief are only intended ultimately to impute guilt to the accused, not only are they invalid for that purpose, they also severely damage an accused’s opportunity to present his case before the jury\u2026<\/p>\n Bruno v. Rushen<\/em>, 721 F.2d 1193, 1195 (9th Cir. 1983) (per curiam);<\/p>\n 2019 S.C. LEXIS 115, *12-14.\u00a0 The South Carolina Court went on to cite additional caselaw condemning such tactics, tactics that have no place in a trial.<\/p>\n So \u2013 one decision supportive of the right to a fair trial, decided on the facts; and a second that says a little napping is no problem unless<\/em> something really bad happens while the judge is dreaming.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" Two recent decisions reflect remarkably different values in how trials are conducted \u2013 one addressing whether we need judges who are awake and alert, the second whether it is permissible to attack defense counsel in a criminal case as a truth-twisting purveyor of information. Let\u2019s start with the judges.\u00a0 On November 27, 2019, a unanimous<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,11],"tags":[],"coauthors":[238],"class_list":["post-2492","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-trial-advocacy"],"yoast_head":"\n