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Can a judge make comments during a trial that favors the prosecutor?


No, he cannot. United States v. Rivera -Rodriguez, decided by the 1st. Circuit Court of Appeals on August 4, 2014, is a good example of what happens when judges decide to get into the action of questioning witnesses on their own. I have witnessed this myself as a Jacksonville criminal lawyer. Carlos Rivera- Rodriguez was convicted of drug possession and distribution charges. He appealed his conviction, claiming that the judge improperly questioned the witnesses against him and further made an unfair comment during the prosecutor's summation. Rivera-Rodriguez and Mr. Mercado-Cruz were among sixty four co-defendants charged with involvement in a conspiracy to distribute various types of illegal drugs. They were the only two who elected to stand trial rather than accept plea agreements.

The main witnesses against Rivera-Rodriguez were two informants (or as the government calls them, cooperating witnesses) who had already plead guilty. During the questioning of those witnesses by the prosecutor, the judge (in order to move things along) asked its own questions about the plea agreement each had signed with the prosecutors. Specifically, the judge hammered home the point that the witnesses were required to testify truthfully and if they did not (as the court emphasized through its questioning) there could be consequences for the witnesses, including charges for perjury, false statements and obstruction of justice, as well as the imposition of sentences beyond the terms of the plea agreements. The judge then clarified for the prosecutors, through another witness, the proximity of lookouts to Rivera-Rodriguez's home, when the witness was having trouble marking the location of the home on an exhibit. Finally, during the prosecutors closing argument, he characterized Rivera-Rodriguez's testimony as inconsistent with that of his own witness. The defense lawyer objected; the judge not only overruled the objection, but added, on his own, "that's exactly what he said', in essence, making the prosecutor's argument for him.

Rivera-Rodriguez's defense lawyer objected to the judge's questioning of the witnesses and the judge's comment during the prosecutor's final argument, which were the correct objections to make. When judges start questioning witnesses and making comments, it gives the questions and answers(and comments) more validity in the jurors eyes. What's worse, it makes the judge appear impartial, as though he's favoring one particular side over the other.

The jury found Rivera-Rodriguez guilty on all counts; the judge sentenced him to 120 months (ten years) imprisonment.

Rivera-Rodriguez appealed his conviction and the appeals court sided with Rivera-Rodriguez, noting that "the court must scrupulously avoid any appearance of partiality." Here, the trial judge appeared to favor the prosecutor's view of the case. Also, the appeals court found that the trial judge became "frustrated' with the prosecutor's questioning and thus intervened, taking over the prosecutor's role. "In short, the court's question[ing] was a much more effective way to accomplish what the prosecutor was trying to accomplish, and it added to the overall sense that the judge was helping the government make its case". The jury cannot perceive the court as biased towards one party or another, but that's exactly what happened here. The "trial court overstepped its bounds" and gave the "appearance of judicial bias. " As a result, Rivera-Rodriguez's conviction was overturned and a new trial was ordered.

Lesson Learned:

This is my third article on defendants who have won new trials because of very obvious mistakes that trial judges have made. Whether in the name of speed, efficiency, moving things along or the like, many judges just can't seem to follow the basic rules of fairness. In this instance, the trial judge was frustrated with a bungling prosecutor who couldn't seem to ask the simple questions of several witnesses. So the judge decided to do it himself. Is this fair? Of course not. I've never read an opinion where a judge decided to help out an inept defense lawyer. This was a good decision. Hopefully, trial judges will start to learn that they are not advocates in the courtroom, but more like umpires, who are there to make sure things are done fairly and the rules are followed. They are not there to help prosecutors win convictions.

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