Americans who follow the news have seen and heard much about Paul Manafort’s trial.  One of the remarkable takeaways from the trial was the judge’s conduct during the trial.  United States district judge Thomas Ellis II is a 78-year-old senior judge for the eastern district of Virginia appointed by President Ronald Reagan.  His courtroom demeanor is best summarized by what he said at one point: “I am a Caesar in my own Rome.”

That’s exactly how he acted throughout the trial, especially towards the prosecution.  During the trial, it was reported that he routinely interrupted the witness questioning by the lawyers to involve himself or criticize the questioning.  He was generally abusive towards the lead prosecutor, Greg Andres, and during a recess confronted him angrily.  Reportedly, he demanded, “Look at me,” slamming his hand on the wooden ledge.  “Don’t look down. Don’t roll your eyes,” he told Andres.  He has been hostile and a judicial bully by treating the lawyers involved as if they were schoolchildren.

The Code of Conduct for United States Judges, Canon 2, says: “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  Canon 3 says: “A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in the official capacity.”  According to media reports, Judge Ellis violated these duties of judicial conduct and ethics.

There is a standard which judges must observe.  They are not above the law although many think they are.  Too often, we read about or experience judges who abuse their position by being unjustifiably rude, hostile, or unfairly critical and abusive towards lawyers and/or parties to a case.  Just as important as verbal communication is the nonverbal conduct that judges use.  This kind of conduct very often constitutes a prohibited comment on the evidence.

While there is some uncertainty about whether a federal judge is empowered to comment on evidence, it is uniformly observed that great caution is mandated in that regard.  As United States v. Goodwin 272 F. 3rd 659 (4th circuit 2001) pointed out regarding federal trial judges: “The trial judge must always remember that he occupies a position of preeminence and special persuasiveness in the eyes of the jury, and, because of this, he should take particular care that his participation during trial—whether it takes the form of interrogating witnesses, addressing counsel, or some other conduct—never reaches the point at which it appears clear to the jury that the court believes the accused is guilty.”

He is always obligated to retain the “general atmosphere of impartiality” required of a fair tribunal, and must not—under any circumstances—become an advocate for the prosecution.  The obligation of the prosecutor is to prosecute, while that of the defense lawyer is to defend, each in an aggressive and professional manner.  And the judge must judge—fairly and impartially.”

Some judges, however, think they know best about all subjects being tried before them and believe they know best about how to conduct a trial as well.  Too often, they involve themselves in the trial in a way that demeans a lawyer or pro se litigant and conveys to the jury commentary on the evidence through nonverbal as well as verbal communication.

What should you do as a trial lawyer or pro se litigant when you have a judge like federal judge Ellis who is a judicial bully or an undisciplined state judge who prejudicially interposes himself or herself into the trial?  The truth is that when you are dealing with an incompetent or undisciplined judge, your ability to do anything about it is like a passenger on an airplane who gets into a dispute with the flight attendant.  You can get ejected from the airplane and miss your flight whether you were right or not.

But, if such judicial action is bad enough to impair the fairness of trial, you need to act.  During trial, one option is to provide the judge with motions to instruct the jury to correct the conduct or to refrain from future conduct or similar remedies that inform the court about the problem.  It also lets the court know a record is being made.  Filing briefs documenting your legal position educates judges and enhances the record for potential appeal.

Normally, your demeanor should be calm and professional, briefly voicing your concern or position.  Open and truthful concern is better that moral outrage.  If the situation becomes so untenable as to substantially risk an adverse outcome, taking a non-suit, if possible, should be considered.

There are trial judges who do not know the Rules of Evidence and those who apparently believe they are not bound by them and who make up their own rules of evidence.  There are trial judges who are rude, hostile, and abusive towards lawyers and litigants.  And there are trial judges whose demeanor or verbal statements communicate to the jury their opinions about evidence or the case.  All who are guilty of these judicial failures violate the most fundamental constitutional right of people to have to a fair and impartial trial.