Archive for December 19th, 2017

Is it Okay to Occasionally Get Intemperate?

posted by Judge_Burke @ 15:30 PM
December 19, 2017

If you are a trial judge, among your required readings should be Angry Judges by Professor Terry Maroney. None of us were anointed as a saint before we took our position on the bench. So, understanding our own emotions and having the skill do deal with other people’s emotion is critical for trial judges. If you are not careful, you can escalate a manageable situation into something that becomes embarrassing.

A former judge who jumped from the bench, ripped off his robe, and bit a defendant on the nose was acquitted in Clarksburg of violating the man’s civil rights. Joseph Troisi, who was a circuit court judge for four years, was accused of confronting Bill Witten after Witten repeatedly cursed at him while being led from the courtroom. Troisi could have been sentenced to up to 10 years in prison on the federal charge. He has already pleaded no contest to state charges and served five days in jail for assaulting Witten. Troisi said he was caught up in “waves of feeling” and not thinking when he exchanged words with Witten.

With that background, here is a case from Judge Wayne Gorman:

In R. v. Church, 2017 ABCA 421, December 15, 2017, the following exchange took place between the trial judge and counsel (Mr. Brunnen):

THE COURT: Why– I mean I have to tell you both. It’s becoming increasingly clear to me that neither one of you are particularly well prepared for this trial. Just -

MR. BRUNNEN: With respect –

THE COURT: Mister–

MR. BRUNNEN: –that is incorrect.

THE COURT: –Mr. Brunnen? I am speaking.

MR. BRUNNEN: With respect –

THE COURT: Mr. Brunnen?

MR. BRUNNEN: — you are wrong.

THE COURT: Mr. Brunnen? Do I need to call the sheriff?

MR. BRUNNEN: You may if you wish.

THE COURT: Mr. Brunnen?

MR. BRUNNEN: I am very well prepared.

THE COURT: Mr. Brunnen? We’re going to have an adjournment, so you can calm down. You will not speak to me like that again.

MR. BRUNNEN: With respect –

THE COURT: Mr. Brunnen?

MR. BRUNNEN: –I am very well prepared.

THE COURT: Mr. Brunnen? That’s enough.

The accused was convicted.  He appealed arguing that the judge’s threat to call the  Sheriff undermine the fairness of the trial.  The appeal was dismissed.

The Alberta Court of Appeal noted that “tensions can run high during trials” and that “trial judges can be under considerable pressure during a trial.” However, though “judges must strive always to remain patient” a “temporary lapse does not necessarily undermine the overall appearance of trial fairness in the eye of the reasonable objective observer” (at paragraph 29).

The Court of Appeal concluded that the exchange did not “undermine the appearance of fairness” (at paragraph 31):

Whether the conduct of the trial results in a miscarriage of justice depends on many factors, and not every criticism of counsel by a trial judge raises a reasonable apprehension of bias: Nazarewycz v Dool, 2009 ABCA 70 (CanLII) at paras. 67-75, 2 Alta LR (5th) 36, 448 AR 1; R. v Schmaltz, 2015 ABCA 4 (CanLII) at paras. 52-3, 12 Alta LR (6th) 328, 599 AR 76. This trial was not before a jury, and did not involve a self-represented litigant. Fortunately, senior counsel was involved, and he was not intimidated by the trial judge’s words: Lakhoo at para. 6. When court resumed after the adjournment, all involved were (commendably) able to get the trial back on track and focused on the issues at hand. This unfortunate incident (probably consuming less than five minutes) in the middle of a three day trial does not undermine the appearance of fairness.

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