The United States Court of Appeals for the Sixth Circuit ruled today in Gordon v Lafler that a judge’s conduct could not arise to a due process violation. Throughout the trial the judge and defense lawyer had exchanged comments that certainly could influence a jury. In addition, the judge found the defense lawyer in contempt and chastised him before the jury.

When does judicial conduct become misconduct and prejudice the defendant’s right to a fair trial before a fair judge? The Sixth Circuit did give some guidance by writing the following: “The Due Process Clause establishes a “Constitutional floor”, which requires the parties be given a “fair trial or fair tribunal” before a judge with no actual bias against the defendant or interest in the outcome of a particular case.” So central is this right that failure to have a trial before such an impartial adjudicator can never be a harmless error. Though trial by an impartial judge is a court right, we must consider the judge’s alleged bias in light of his or her role in the court room. During a jury trial, “the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct.” So “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” In “the rarest circumstances,” judicial rulings can constitute the basis for a biased claim if they “display a deep-seated favoritism or antagonism that would make fair judgment impossible.” However, even if a judge makes remarks that are critical, disapproving, or even hostile to counsel, or if a judge conveys feelings of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display, his or her conduct will not amount to a Constitutional violation. An example of this sort of deep-rooted antagonism that would constitute a due process violation is a judge describing German-American defendants as having “hearts reeking with disloyalty.” In short, most allegations of judicial bias will not give rise to a Constitutional call of action.

There is no cause for a judge ever acting as though he might be biased or has animosity towards the litigants or counsel. Such behavior is beneath the dignity of a judge and should not be tolerated. Further, it risks compromising the verdict in a case if the judge has stepped over the line. The Sixth Circuit went on to say that “it is true that various statements made by the judge could certainly be considered inappropriate and lacking in tact. We also emphasize that our holding today in no way relieves judges of their duties not only to refrain from presiding over cases in which they harbor a bias against an attorney or party, but to avoid the mere appearance of impropriety. Parties have the right to an impartial judge, and we must stand unwavering in our commitment not to impinge on this right.” Yet the judge’s critical remarks reflected “impatience, dissatisfaction, annoyance, and even anger…are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.”

Our friends on the bench need to be patient, understanding, neutral, and sensitive to the difficulties and emotions of trying cases.

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