In Azucena v. State of Nevada, the Nevada Supreme Court held that a judge committed judicial misconduct warranting a new trial after the judge, literally, threw a book at a potential juror during voir dire. 135 Nev., Adv. Op. 35, 448 P.3d 534 (Nev. 2019).
If you have ever seen the movie Eurotrip, you understand why I had to write this post, because the judge’s name is Scotti.
If you haven’t, google it.
But even without Eurotrip, Azucena answers a very common question that frequently comes up: When does judicial misconduct warrant a new trial?
During voir dire in a criminal case where the defendant was charged with multiple sex offenses against children, “the trial judge throw a book against the wall, and berated, yelled at, and threatened a prospective juror for expressing the belief that she could not be impartial.” Azucena, 448 P.3d at 536.
Voir dire is the legal term used to describe “picking an impartial jury.” Under the United States Constitution and the Nevada Constitution, every defendant is entitled to a trial by an impartial jury of his or her peers. Nev. Const., art. 1, § 3; U.S. Const., amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”). Voir dire, or questioning of the potential jurors, is how lawyers determine whether a juror may possess a bias which would violate the defendant’s right to an impartial jury.
Because selecting an impartial jury is so important, voir dire can sometimes take days. In Acezuna, when the potential jurors came back for the second day of voir dire, one juror noted that she might have bias towards the defendant because she was a nurse who was frequently exposed to child abuse. 448 P.3d at 536. This is what happened next:
The Court: So you didn’t say that yesterday. All right.
Prospective Juror No. 177: Well, I said I had other issues.
The Court: No, listen – what – what we’re not going to have in this jury is people coming in overnight and thinking up shit and try to make shit up now so they can get out of the jury. That’s not going to happen. All right. All right. Because if I find that someone said something yesterday under oath and changes it because they’re trying to fabricate something to get out of serving on this jury, there’s going to be repercussions. All right.
Id. As he was yelling at the juror, the judge threw a book against the wall. Id.
After the juror was excused, the next prospective juror stated “that she had been sexually abused as a child but stated that she would not be biased.” Id. at 536-37. Unsurprisingly, every other juror stated that they definitely, probably, did not have any potential bias.
The Nevada Supreme Court held that this exchange was “inappropriate and constituted judicial misconduct” in light of the judge’s role as the keeper of civility in a courtroom. Id. at 538. The Nevada Supreme Court further found that this judicial misconduct warranted a new trial because voir dire, one of the most important processes in a jury trial, is only effective “if the prospective jurors answer candidly.” Id. When “jurors are given reason to fear reprisals for truthful responses,” it is presumed that jurors are not answering voir dire questions candidly. Id. at 538-39. Given the judge’s reaction to the juror at issue, the Nevada Supreme Court found that other prospective jurors may have been discouraged “from responding honestly about their own biases out of fear of repercussions.” Id.
Out of fairness to the judge, lawyers and judges hear the craziest excuses from prospective jurors who are trying to get out of jury duty. I once had a juror write on their jury questionnaire that they could not serve impartially because they are prejudiced against people of color. (Unfortunately for that juror, it was a trial involving wealthy, white people.)
The import of the Azucena case is not what actually happened in the courtroom; rather, it is the fact that this is one of the few cases where an appellate court has found that judicial misconduct warrants a new trial. Judges are people too, and they have good and bad days like the rest of us. Sometimes those bad days occur during trial. But not all bad days are misconduct, and not all judicial misconduct is grounds for a new trial. Litigants should be aware of when they should and should not argue it on appeal.
WHEN JUDICIAL CONDUCT DOES NOT WARRANT A NEW TRIAL.
The fact that the judge clearly did not like you or your attorney is not judicial misconduct warranting a new trial. See, e.g. Coddington v. State, 415 P.3d 12 (Nev. 2018) (finding that a judge rolling his eyes and appearing frustrated during closing arguments was not judicial misconduct). In Horton v. Fritz, the Nevada Supreme Court reprimanded the trial judge for threatening the appellant’s counsel with sanctions if the case was lost and commenting that “he was fed up with spurious lawsuits,” but nevertheless found that the appellant received a fair and impartial trial. 113 Nev. 824, 830, 942 P.2d 134, 138 (1997). Another trial judge was reprimanded for commenting on credibility of one party’s witnesses, expressing impatience, rebuffing trial counsel for trial tactics, and asking a juror “isn’t this the most boring case you have ever heard?” in an elevator outside of the courtroom. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 416-17, 470 P.2d 135, 140-41 (1970). However, the Nevada Supreme Court concluded that this misconduct did not deprive the appellant of the right to a fair trial, and did not warrant reversal. Id.
The fact that the judge clearly thinks your witness is lying is not judicial misconduct warranting a new trial. Ginnis, 86 Nev. at 416-17, 470 P.2d at 140-41; see also Garnica-rojo v. State, 387 P.3d 880 (Nev. 2016) (holding that a judge’s alleged questioning of “a witness in such a way that implied disbelief concerning a witness’s testimony” was not judicial misconduct warranting a new trial).
Similarly, the fact that a judge clearly likes a witness of the opposing party is not judicial misconduct warranting a new trial. Brant v. State, 130 Nev. 980, 988, 340 P.3d 576, 582 (2014) (holding that a judge defending a witness’s decision not to answer a certain line of questioning and thanking the witness for his patience was not judicial misconduct warranting a new trial).
Overruling objections to evidence is generally not judicial misconduct warranting a new trial. Cager v. State, 124 Nev. 1455, 238 P.3d 799 (2008) (holding that a judge’s overruling objections with “curt, dismissive instructions to sit down” and stating “we have two of you now objecting?” when second defense counsel attempted to object was not judicial misconduct warranting a new trial).
WHEN JUDICIAL MISCONDUCT MAY WARRANT A NEW TRIAL
Judicial misconduct may warrant a new trial when it interferes with the voir dire process. In contrast to the conduct discussed in Azucena, the Nevada Supreme Court has also found judicial misconduct to warrant a new trial when “the judge’s unfortunate, yet well-intentioned conduct injected an unwarranted levity into the proceedings that may have adversely influenced the [juror’s] perceptions of the significance of the trial.” Parodi v. Washoe Med. Ctr., Inc., 111 Nev. 365, 367, 892 P.2d 588, 589 (1995). In Parodi, the judge turned voir dire into a literal parody by, among other things, leading the “prospective jurors in a standing ovation when appellants’ counsel returned a few minutes late from recess,” informing a tardy juror that “she was ‘eligible for this fun, too,’” joked about the solemn oath jurors must swear, “directed light-hearted comments to a prospective juror, whom he knew from college, regarding the judge’s fitness to serve on the bench,” and “endorsed one prospective juror’s business.” Id. at n.1. The Nevada Supreme Court held that this conduct was both inappropriate and potentially prejudicial, as it led the jurors to make light of the serious situation of a trial. Id. at 370, 892 P.2d at 589.
Interjecting levity into the later stages of the trial may also warrant judicial misconduct, particularly where the levity is aimed at one party’s counsel while excluding the other. In Haluck v. Ricoh Electronics, Inc., the California Court of Appeal held that the judge’s conduct warranted a new trial where the judge “helped create, a circus atmosphere, giving defendants’ lawyer free rein to deride and make snide remarks at the will and at the expense of the plaintiffs and their lawyer.” 60 Cal. Rptr. 3d 542, 548 (2007). The misconduct included, among other things, jokes between the judge and defense counsel about being in the “Twilight Zone,” the judge’s use of a written sign that said “overruled” on almost all of plaintiff’s objections but none of defendant’s, and used a “soccer style” “red card” to stop plaintiff’s counsel from speaking. Id. at 550. The result of this was to make the “plaintiffs’ lawyer the butt of [the judge’s and defense counsel’s] jokes . . . in a way that could only convey to the jury that they were a team and the plaintiff’s counsel was an outsider.” Id.
Judicial conduct that implies favoritism to any party in one manner or another may warrant a new trial. For example, in Oade v. State, the Nevada Supreme Court held that a new trial was warranted due to the judge’s treatment of the “California” attorneys in the courtroom, which included levying fines or issuing warnings for minor transgressions, and “repeatedly express[ing] impatience with Oade’s counsel in the presence of the jury,” expressing an opinion that the evidence presented by Oade’s counsel was not credible and implying that a defense was not tenable. 114 Nev. 619, 623-24, 960 P.2d 336, 339 (1998). While these errors on their own were not sufficient to warrant misconduct, in the cumulative they worked to “lessen the defense’s credibility and prevent the defense from obtaining full and fair consideration from the jury.” Id. at 624, 960 P.2d at 339.
Similarly, in Holderer v. Aetna Casualty & Surety Co., the Nevada Supreme Court held that a new trial was warranted where the trial judge “expressed his negative feelings toward personal injury attorneys” and “facetiously comment[ed] that he could be writing his ‘grocery list’ during trial.” 114 Nev. 845, 850, 963 P.2d 459, 463 (1998). The Nevada Supreme Court held that this conduct put the appellant’s “counsel in a poor light and trivialized the proceedings.” Id. at 851, 963 P.2d at 463.
Judicial misconduct warranting a new trial may also occur when the trial judge makes comments that appear to be giving legal advice to one party’s counsel, as this may also imply favoritism for one party to the jury. Bank of Am., N.A. v. Atkin, No. 3D18-1840, 2018 WL 6595138, at *4 (Fla. Dist. Ct. App. Dec. 14, 2018).
Finally, conduct that interferes with the jury verdict may warrant a new trial. See Taylor Morrison of Texas, Inc., No. 02-13-00364-CV, 2014 WL 487221, at *5 (Tex. App. Feb. 6, 2014) (holding that judicial misconduct occurred when the judge’s communications cause the jurors to “not complete their deliberations, vote on some questions, or render a verdict on all questions because the trial judge instructed them not to answer Question 10 and to stop their deliberations”).
WHAT TO DO IF YOU SUSPECT JUDICIAL MISCONDUCT
Judicial misconduct may arise from one isolated incident, as seen in Azucena, or from multiple incidents which cumulatively taint the trial. See Holderer, 114 Nev. at 850-51, 963 P.2d at 463; Parodi, 111 Nev. at 367, 892 P.2d at 589.
If the judicial misconduct is an overt, isolated incident, you should object at trial to preserve the issue for review on appeal. Ginnis, 86 Nev. at 417, 470 P.2d at 141. If the judicial misconduct is more subtle and cumulative, you have a choice. As explained by the Nevada Supreme Court in Parodi, judicial misconduct is reviewed for plain error. 111 Nev. at 367, 892 P.2d at 589. This means that the Nevada Supreme Court will consider the argument even if not objected to below, provided that the error is plain enough that the record demonstrates an injustice has been done. Id. In cases of cumulative error, multiple objections may not be appropriate as it places the party in “the untenable position of silently accepting the judge’s trivialization of the proceedings, or risking the prospect of alienating the judge or the jury by interjecting a discordant and somber note to the good-spirited trial atmosphere created by the judge.” Id.
THE MORAL OF THIS STORY IS
Do not literally throw books at jurors. And watch Eurotrip, if you have not seen it.