Yesterday, the
Michigan Supreme Court released a unanimous decision in People v Stevens, __ Mich __; __ NW2d__ (July 23, 2015) (Docket No. 149380), where it
reversed a defendant's conviction for second degree murder and child abuse and
remanded to the trial court for a new trial because of the trial judge's
improper conduct that "pierced the veil of judicial impartiality." The Supreme
Court established a new standard to clarify the long history of conflicting
case law to determine what it means to pierce the veil of judicial
impartiality: "A judge's conduct pierces this veil and violates the
constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge's conduct improperly
influenced the jury by creating the appearance of advocacy or partiality
against a party." To help in the application of this test, the Supreme Court
set forth a non-exhaustive list of factors that a reviewing court should
consider when determining if the veil has been pierced: "[1] the nature of the
judicial conduct, [2] the tone and demeanor of the trial judge, [3] the scope
of the judicial conduct in the context of the length and complexity of the
trial and issues therein, [4] the extent to which the judge's conduct was
directed at one side more than the other, and [5] the presence of any curative
instructions." Slip op at 9. The opinion was clear that each of these factors
should be considered under a totality-of-the-circumstances approach, weighing
the relevance and significance of each of the factors as applied to the
specific facts of the case. Slip op at p 10. Justice Bernstein's opinion
provides a discussion of how to apply each of these factors and for what a
reviewing court should look, making sure to again clarify other considerations
outside the factors may be relevant. Slip op at 10-15.
Importantly,
the Supreme Court also held that the harmless-error standard did not apply to
cases where the judge is shown to pierce the veil of judicial impartiality
because "judicial partiality can never be held to be harmless . . . even if no
particular prejudice is shown and even if the defendant was clearly guilty." Slip op at 16-17 (internal citation omitted). The proper remedy, the Supreme
Court therefore held, is to reverse and remand for a new trial.
In
applying the test to the facts before it, the Supreme Court held the trial
court judge's behavior under each factor (other than the curative instruction
factor) under the newly established test indicated that the trial judge pierced
the veil of judicial impartiality. The trial judge undermined defendant during
his testimony and through other witnesses, undermined defendant's expert witnesses,
and severely intruded into the prosecutor's role. The judge's inquiry into the
witnesses reflected its bias, not just in the disparity of the number of
questions against the defense versus the prosecution, but in the content and
tone of the questions. For example, the judge undermined the defendant's expert
by preventing him from fully testifying by asking a lot of questions before the
defense could develop a record of the expert's opinion and by also putting into
question the defense expert's credentials,
after the trial court had already endorsed the witness as an expert. The
judge even used the phrase "that's just your opinion" when questioning the
expert. The trial judge bolstered the prosecutor's witnesses, for example
wanting the prosecutor's expert to emphasize his status as a head medical
examiner when the judge had asked multiple questions about the defense's
expert's credentials regarding his status as an assistant. The Supreme Court's
opinion stressed that judges have authority to question witnesses, but that the
questioning should be impartial and relate to clarifying evidence in the
record. The trial judge here misunderstood his role, even stating when defense
counsel objected to his behavior, "[I]f I have a question I can ask a question,
all right?" The Supreme Court noted that the judge did provide a general
curative instruction, but that the judge's improper behavior was so excessive
and biased that the curative instruction could not overcome the totality of the
circumstances. Therefore, the Supreme Court reversed the case and remanded to
the trial court for a new trial.
Labels: 149380, Bernstein, child abuse, criminal, harmless error, harmless-error, impartiality, judicial bias, michigan supreme court, murder, new trial, People, remand, Stevens, supreme court, veil