JUDICIAL MISCONDUCT

I. Introduction

The main sources of law that pertain to judicial misconduct are Articles VI § 18
and 18.5 of the California Constitution, the California Code of Judicial Ethics, the
California Judicial Conduct Handbook (3 rd edition) written by David M. Rothman, and
case law.

In exercising the broad power to control the trial proceedings, a judge has, first
and foremost, a duty to remain impartial. (See California Code of Judicial Ethics, Canon
3B.) Violation of this duty to remain impartial may be so serious as to constitute
reversible error. The defendants right to a fair trial presided over by a fair and impartial
judge may be violated when a judge is seen to have abandoned thIs role as a fair and
imp'artial judge by becoming embroiled in the proceedings, assuming the role of
prosecutor, making disparaging remarks about defendant, defense counselor defense
witness, considering matters not in evidence, fonning an opinion in trial court before the
defense is presented, andlor exhibiting clear bias or prejudice.

II. The leading case in California, People v. Mahoney (1927) 201 Cal. 618.

A. Witkin identifies Mahoney as the leading case in California on judicial

misconduct.

B. Mahoney appealed his conviction for manslaughter. Mahoney was a

contractor who built a viewing grandstand at Colorado and Madison
Avenues in Pasadena for the Rose Parade. The grandstand collapsed
injuring many and killing some.

C. Mahoney appealed and argued judicial misconduct over "twenty-three

utterances by the trial judge and numerous instances where he took to
himself the task of examining witnesses, which appellant says conveyed to
the mind of the jury the impression that the judge was convinced of the
guilt of the defendant and that his sympathy was wholly with the
prosecution. No assignments of error were made at the time of the
occurrences by defendant's counsel and no opportunity given to the court
to right the wrong done, if such it was." (People v. Mahoney (1927) 201
Cal. 618, 622. [emphasis added].)

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D. California Supreme Court overlooked the lack of objection because this
case was one of those instances where objection "would be entirely
fruitless; no retraction sufficient to undo the harm; and the effort made
might result in further error. Further, it is evident from the attitude of the
trial judge, as shown by the record, that any assignment of misconduct
would have been disregarded. Counsel for the appellant, by making an
assignment, would have brought upon himself further attack." (People v.
Mahoney (1927) 210 Cal. 618, 622.) .

E. California Supreme Court then takes 5 pages to list the questions and
intemperate comments ofthe judge in the case. The Court then rejects the
government's Watson argument of harmless error and finds reversible error
as follows:

. "We have presented sufficient to show a state of affairs which trial judges
should not permit and which may be pointed to as an example of what they
should not do in the trial oflawsuits. If they will lend themselves to such
methods, if they will so intemperately espouse the cause ofthe prosecution
in criminal cases, no man charged with a penal offense is safe, whether he
be guilty or innocent. Every defendant under such a charge is entitled to a
fair trial on the facts and not a trial on the temper or whimsies of the judge
who sits in his case. Whatever the degree of guilt of appellant here, those
who know the circumstances surrounding his conviction are likely to feel
that the verdict resulted from the conduct of the judge and not from the
evidence. [Emphasis added.]

"Jurors rely with great confidence on the fairness of judges, and upon the
correctness of their views expressed during trials. For this reason, and too
strong emphasis cannot be laid on the admonition, a judge should be
careful not to throw the weight of his judicial position into a case, either
for or against the defendant. ...

"When, as in this case, the trial court persists in making discourteous and
disparaging remarks to a defendant's counsel and witness and utters
frequent comment from which the jury may plainly perceive that th~
testimony of the witnesses is not believed by the judge, and in other ways
discredits the cause of the defense, it has transcended so far beyond the
pale of judicial fairness as to render a new trial necessary. Neither can a
plea for the application of the section of the constitution save this situation.
The fact that a record shows a defendant to be guilty of a crime does not

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 necessarily determine that there has been no miscarriage of justice. In this
case, the defendant did not have the fair trial guaranteed to him by law and
the constitution." [Emphasis added.]

(People v. Mahoney (1927) 210 Cal. 618, 622-627.)

F. Mahoney is noteworthy for five reasons:

1. Supreme Court reached issue despite lack of objection;

2. Supreme Court appears to review the record de novo for error;
3. Supreme Court adopts standard of appearance of bias;
4. Supreme Court rejects harmless error argu111ent . ~. '''"If'l)
5. Although nearly a century old, courts contin\ue to quote from it (Jtu, 0\
when deciding judicial misconduct cases. \ U\" \ ((IV C\.\r\'~(1''I.~ ~lI'-). )'
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C\\\;\J oW ~ If ~~
III. Is The Issue Preserved? 9"~lJIVV5-t ). I
'('"\
A. Tension between general rule requiring objection and exception
finding no objection needed due to incurable harm or futility.

1. The California Supreme Court case of People v. Sturm (2006) 37

Ca1.4th 1218, 1237, states the general rule that an objection is
required to preserve a judicial misconduct issue for appeal. But the
Court immediately relies on the exceptions that no objection is
necessary where objection and admonition would not cure the harm
or when objecting would be futile to reach the issue. In Sturm the
Supreme Court reached the issue of misconduct because the trial
court repeatedly disparaged defense counsel and defense witnesses,
conveyed to the jury that he disbelieved critical defense testimony,
repeatedly intervened in the defense case, and created the
impression that he was aligned with the prosecution. (Id. at pp.
1233-1243.)

In People v. Abbaszadeh (2003) l06 Cal.App.4th 642, 646, the

court reached the misconduct claim that trial judge's instruction and
comrnents effectively told the jurors to lie to get off of jury duty
rather than to admit racist feelings because objection would have
been futile and prosecutor had equal duty to object.

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 3. Cases invoking the objection requirement tend to find issue is
waived where the alleged misconduct either is minor, although not
minor is merely the trial judge exercising control of the
proceedings, or is a manifestation of the inevitable conflicts
inherent in a criminal trial. (People v. Snow (2003) 30 Cal.4th 43,
77-78; People v. Fudge (1994) 7 Cal.4th 1075,1108; People v.
Anderson (1990) 52 Ca1.3d 453,468.)

B. The Trap of California Code of Civil Procedure section 170.1 and

170.6 Disqualification Motions. .

1. California Code of CivilProcedure section 170.1 provides a

statutory mechanism for moving to disqualify a judge based on bias
or other grounds. '

2. Exclusive means of appellate review is petition for writ of mandate.

(Code Civ. Proc., § 170.3, subd. (d).) Denial of motion to
disqualify is not reviewable on appeal from final judgment. (People
v. Panah (2005) 35 Ca1.4th 395, 444-445.) Same rule holds for
appeal from denial of motion under section 170.6. (People v. Hull
(1991) 1 Ca1.4th 266,268,276.)

3. However, appellate review is available on non-statutory grounds

where appellant claims denial of ~ue p..IQ.C.eS.S-.riUQ an impartial
-:iudge. (People v. Mayfield (1997) 14 Ca1.4th 668, 811; People v.
Brown (1993) 6 Ca1.4th 322, 335.) In Mayfield, the Supreme Court
construed appellant's challenge to denial of motion to disqualify as
a due' process claim and reached merits of the issue.

C. Disqualifying Judge on Remand Pursuant to California Code of Civil

Procedure, section 170.1, subdivision (c).

1. This subdivision provides the following: "At the request of a party

or on its own motion an appellate court shall consider whether in
the interests of justice it should direct that further proceedings be
heard before a trial judge other than the judge whose judgment or
order was reviewed by the appellate court."

2. Erroneous rulings without more do not justify removal of a trial

judge from further proceedings in a case. (Blakemore v. Superior

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 Court (2005) 129 Cal.App.4th 36, 59-60.) Mere sentencing error
does not justify removal of judge from case on remand. (People v.
Gulbrandsen (1989) 209 Cal.App.3d 1547, 1563.)

3. Removal from case is warranted where sentence of the original

judge indicates an animus inconsistent with judicial objectivity.
(People v. Gulbrandsen (1989) 209 Ca1.App.3d 1547, 1562.)
Removal is also warranted in case where trial judge's imposition of
banishment as term of plea bargain made bargain void and judge's
indicated sentence displayed "an animus toward petitioner
inconsistent with judicial objectivity." (Alhusainy v. Superior Court
(2006) 143 Cal.App.4th 385, 394.)

4. Grounds for exercising removal power include "where a reasonable

person might doubt whether the trial judge was impartial or where
the trial court's rulings suggest the 'whimsical disregard' of a
statutory scheme." (Alhusainy v. Superior Court (2006) 143
Cal.AppAth 385, 394.) In addition, where "a person aware of the
facts might reasonably entertain a doubt that the judge would be
able to be impartial" removal is appropriate. The court need not
determine whether there is actual bias. {In re Wagner (2005) 127
Cal.App.4th 138, 148; Ng v. Superior Court (1997)52 Ca1.App.4th
1010,1024.)

IV. Standard of Review is De Novo.

1. Cases rarely explicitly state standard of review but all cases appear
to undertake an independent analysis of the facts to determine
whether judicial misconduct occurred. (People v. Sturm (2006) 37
Ca1.4th 1218,1237-1243; People v. Snow (2003) 30 Ca1.4th 43,77-
·82; People v. Fudge (1994) 7 Ca1.4th 1075, 1108-1109; People v.
Mahoney (1927) 210 Ca1.618, 622-627.)

2. In the context of reviewing disqualification motions, on undisputed

facts the question of law is subject to independent review and the
test is an objective one that asks whether a reasonable person
knowing the facts would fairly entertain doubts regarding the
judge's impartiality. (People v. Panah (2005) 35 Ca1.4th 395, 446;
People v. Briggs (2001) 87 Ca1.AppAth 312, 319; Flier v. Superior
Court (1994) 23 Cal.AppAth165, 170.)

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V. Standard of Prejudice: Argue Structural Error.

1.. In People v. Sturm (2006) 37 Ca1.4th 1218, 1243, the Supreme

Court found prejudice under either the federal constitutional
Chapman standard of the state's Watson standard. (Chapman v.
California (1967) 386 U.S. 18,24 [87 S.Ct. 824,17 L.Ed.2d 705];
People v. Watson (1956) 46 Ca1.2d 818, 836.)

2. Argue structural error and reversible per se. (Arizona v. Fulminante

(1991) 499 U.S. 279, 309-310 [111 S.Ct. 1246, 113 L.Ed.2d 301].)
The premise of structural error review is that even convictions
reflecting the right result are reversed for the sake of protecting a
basic right because the error affects the fundamental integrity of the
proceedings. For instance, in People v. Mahoney (1927) 210
Ca1.618, 627 Supreme Court reversed despitethe fact that record
shows defendant to be gUilty. Likewise, in Hernandez v. Pacius
(2003) 109 Cal.App.4th 452, 461, a civil case, the court explicitly
departed from the requirement that prejudice be shown and reversed
because "the appearance of judicial bias and unfairness colors the
entire record ... The test is not whether plaintiff has proved harin,
but whether the court's comments would cause a reasonable person
to doubt the impartiality of the judge or would cause us to lack
,confidence in the fairness of the proceedings such as would
necessitate reversal." In addition, in People v. Hernandez (1984)
160 Ca1.App.3d 725,747, the court reversed because of an
appearance of bias.

V. Types of Judicial Misconduct

A. Abandoning the judicial role

1. Embroilment

Embroilment is a general tenn and can encompasses bias,

abandoning the judicial role, etc. "Embroilment is the process by
which the judge surrenders the role of impartial fact finder/decision
maker and joins the fray." (California Judicial Conduct Handbook
§ 2.01.)

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Offuttv. United States (1954) 348 U.S. 11,17 [75 S.Ct. 11; 99L.Ed
11.]
"The record is persuasive that, instead of representing the
impersonal authority of law, the trial judge permitted himself
to become personally embroiled with the petitioner. There
was an intermittently continuous wrangle on an unedifying
level between the two. For one reason or another, the judge
failed to impose his moral authority upon the proceedings.
His behavior precluded that atmosphere of authority which
should especially dominate a criminal trial and which is
indispensable for an appropriate sense of responsibility on
the part ofthe court, counsel, and jury."

People v. Weaver (2004) 118 Cal.App.4th 131,146-150.

Facts: Trial judge improperly thrust himself into the middle

of case settlement negotiations and therefore abandoned his
role as neutral arbitrator. "No one, not even appellant,
doubts that it was the trial judge's intention to encourage a
plea bargain that was in everyone's best interest. The judge,
however, went too far ... At any given time he seemed to fill .
the role of judge, jury, defense counsel, prosecutor,
psychiatrist, social worker and victims' advocate." (p. ,149.)

Held: Trial judge's undue pressure on defendant to plead

guilty constituted good cause to ,allow withdrawal of the plea.
(p. 150.)

People v. Sandoval (2006) 140 Cal.AppAth Ill, 126-127

Facts: Trial judge exerted significant and inappropriate

pressure on defendant to accept a plea offer.

Held: Trial court erred in refusing to allow defendant to

withdraw his gijilty plea.

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2. Assuming the role of prosecutor

People v. Raivairt (2001) 93 Cal.AppAth 258, 269-272

A trial judge asking questions of a witness does not engage

in misconduct unless in doing so he shows bias or
"persistently makes discourteous and disparaging remarks so
as to discredit the deferise or create the impression it [was]
allying itself with the prosecution."

People v. Santana (2000) 80 Cal.AppAth 1194, 1206-1208

"A court may control the mode of questioning of a witness

and comment on the evidence and credibility of witnesses as
necessary for the proper determination of the case. Within
reasonable limits, the court has a duty to see that justice is .
done and to bring out facts relevant to the jury's
determination. A court commits misconduct if it persistently
makes discourteous and disparaging remarks so as to .
discredit the defense or create the impression it is allying
itself with the prosecution." (P. 1206-1207.)
However, here, the trial court's questioning of defendant
consumed more time than was necessary to elicit the point
the court sought to make. "By belaboring points of evidence
that were clearly adverse to [defendant], the trial court took
on the role of prosecutor rather than that of impartial judge.
By continuing this adversarial questioning for page after·
page of the reporter's transcript, the trial court created the
unmistakable impression it had allied itselfwith the
prosecution in the effort to convict [defendant]. These
instances of impropriety are so egregious as to require
reversal of [defendant's] conviction."

People v. Sturm (2006) 37 Cal.4th 1218, 1235

Judge committed misconduct when he imposed his own

objections to questions asked by defense counsel.

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3. Disparaging remarks concerning the defendant, defense counsel, or
defense witness.

People v. McNeer (1935) 8 Cal.App.2d 676, 680-681

Facts: Defendant, suffering from a bullet wound, groaned

and made noises that interrupted the proceedings. The trial
judge instructed the jury to ignore his remarks, calling it
theatrics, and later told declared that the defendant was
faking it. .

Held: The remarks constituted reversible error.

People v. Williams (1942) 55 Cal.App. 2d 700, 700-703

Facts: After defense counsel referred to defendant as "the

gentleman on the right", the judge interrupted to say "I think
the word gentleman is not only unnecessary but inappropriate
to these men" and "I can think of a better one for them."

Held: Tlie remarks constituted reversible error.

People v. Sturm (2006) 37 Ca1.4th 1237, 1238

Held: Trial judge committed misconduct when he engaged in

a pattern of disparaging comments to defense counsel and
defense witnesses injury's presence and conveyed
impression that he favored prosecution by frequently
interposing objections to defense counsel's questions.

People v. Santana (2000) 80 Cal.AppAth 1194, 1208-1209

Held: Trial judge committed a reversible error in repeatedly,

disparagingly, and prejudicially questioning defense witness.
The evidence was entirely circumstantial and without the
trial judge's interference the jury might have found
defendant's explanation of the circumstances sufficient to
conclude that the case against him was not proved.

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4. Considering matters not in evidence

People v. Andrews (1970) 14 Cal.App.3d 44, 45

Held: Reference to prosecution witness' lie detector test was

a prejudicial error.

People v. Handcock (1983) 145 Cal.App.3d Supp. 25, 29-34

Held: Judge's independent investigation of accident and

calling of witness to offer evidence derived from that
investigation was a prejudicial error.

People v. Ramirez (1952) 113 Cal.App.2d 842, 852

Held: Without notifying defendant, the judge directed the

. clerk to have police chemist analyze powder found in capsule
form in defendant's lamp. This was held to be a prejudicial
error.

People v. Armstead (2002) 102 Cal.App.4th 784, 792-794

Held: Trial judge's response to jury query after submission

was prejudicial error because it effectively directed the jury
to consider evidence for the purpose other than that for
which it was admitted at trial.

People v. Archerd (1970) 3 Ca1.3d 615,638

Held: Judge's consultations with medical experts outside of

court was a harmless error. Alleged error in conferring with
prosecutors and prosecution investigator in chambers was
waived by defense counsel's failure to make objections or
note matter for record.

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5. Forming an opinion in court trial before the defense is presented.

People v. Barquera (1957) 1~4 Cal.App.2d 513

Facts: Defendant was charged with possession of narcotics

and it was stipulated that the case be submitted on the
preliminary hearing transcripts with the right reserved to
produce additional evidence. The judge stated that he had
read the transcripts, wouldn't take the defendant's word
against the police officer and that the defendant didn't have
any defense. (p. 515.)

Held: Reversible error. "When a judge becomes a trier of

fact as well as of the law, the defendant is entitled to the
same presumption of innocence and the same right to present
a defense that he would have ifhe were being tried by a jury.
In the instant controversy, the judge without specific
intention to do hann, deprived the defendant of such rights."
(p.519.)

6. Comments in court.

People v. Cook (1983) 33 Ca1.3d 400,413.

Facts: Trial court commented to deadlocked jury on his

views of the evidence and credibility of witnesses.

Held: Although trial court has authority to comment on the

evidence it may not comment on the evidence to a
deadlocked jury and "may not directly express its opinion on
the ultimate factual issue of the accused's guilt or
innocence. "

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 People v. Anderson (1990) 52 Ca1.3d 453,469.

Facts: Judge told jury that issue of intent to kill was a "fairly
simple question" and verdict could be reached within 2 or 3
hours.

Held: Court overlooked failure to object to find reversible

error due to trial court's coercive comments.

VI. Commission Cases

The Commission on Judicial Perfonnance, established in 1960, is the independent

state agency responsible for investigating complaints of judicial misconduct and judicial
incapacity and for disciplining judges, pursuant to article VI, section 18 of the California
Constitution. The Commission's jurisdiction inc1udesall judges of California's superior
courts and the justices of the Court of Appeal and Supreme Court. The Commission's
authority is limited to investigating allegations of judicial misconduct and, if warranted,
imposing discipline. The Commi~sion cannot change a decision made by any judicial
officer; this is a function of the state's appellate courts. After investigation, and in some
cases a public hearing, the Commission may impose sanctions ranging from confidential
discipline to removal from office. (www.http://cjp.ca.gov/)

McCullough v. Commission on Judicial Performance (1989) 49 Ca1.3d 186,191

Judge committed obvious misconduct when he gave a directed verdict for

the prosecution during closing arguments.

Gonzales v. Commission (1983) 33 Ca1.3d 359,371

It is judicial misconduct for a judge to conduct proceedings in the absence

of counsel.

Ryan v. Commission on Judicial Performance (1988) 45 Ca1.3d 518,536.

Trial judge committed misconduct by conducting his own investigation in

a criminal trial, with little notice to either counsel, and then interrupted
defense case to bring his own witness whose testimony was severely
damaging to the defense. Further misconduct committed by imposing and
extracting an admission to probation violation in the absence of counsel.

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Defendant's resulting conviction was later set aside in People v.
Hancock (1983) 145 Cal.App.3d Supp. 25, 31, because the court
found no authority for the judge's investigation. The Gourt held that
although a judge may call and examine witnesses, the manner in
which the trial judge placed his own witness on the stand, by
interrupting defendant's testimony, seriously prejudiced the
defendant.

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