Roaming, Hugging and Eating Candy Is No Way To Judge (If True)

The behavior of the trial judge requires the grant of a new trial, according to a decision issued Friday by the Louisiana Supreme Court.

The jury had returned a defendant’s verdict in a medical malpractice action

Having reviewed the record and considering the briefs and oral argument of the parties, we are convinced that the trial judge’s actions resulted in a miscarriage of justice. Therefore, considering the unique and narrow facts presented, we conclude a new trial must be granted.

Chief Justice Johnson concurred and explained

In my view, it is undisputed that Judge Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury’s verdict cannot be allowed to stand. According to plaintiffs, Judge Ellender failed to preside over the trial from his position on the bench, but rather roamed around the entirety of the courtroom during much of the trial. Judge Ellender would stop and look out of the windows in the courtroom while plaintiffs’ counsel was examining witnesses. Judge Ellender continuously moved around the courtroom, sitting in various chairs, and, inexplicably, sat in the jury box with the jurors while eating candy – all during witnesses’ testimony. The record also contains uncontroverted testimony from the plaintiff that Judge Ellender greeted the defense medical expert, defendant’s medical partner, with a handshake and embrace in front of the jury. Additionally, although neither counsel asked plaintiffs’ medical expert, Dr. Leo Murphy, any questions regarding his fees and expenses during the trial, after Dr. Murphy was released Judge Ellender took it upon himself to question plaintiffs’ counsel about the costs paid to Dr. Murphy in the presence of the jury…Judge Ellender’s insidious actions of leaving the bench, wandering around the courtroom, looking out the windows, eating candy and otherwise failing to pay attention to the proceedings communicated to the jury in a non-verbal way his opinion that the trial was not serious and could be treated as a joke. 

A footnote to the concurrence notes prior judicial discipline imposed on the judge

In re Ellender, 09-0736 (La. 7/1/09), 16 So. 3d 351 (Judge Ellender suspended for thirty days without pay due to his failure to treat a pro se petitioner’s application for protection from domestic abuse seriously, and acting in a condescending and demeaning manner towards her); In re Ellender, 2004-2123 (La. 12/13/04), 889 So. 2d 225 (Judge Ellender suspended for one year, without pay, with six months of that suspension conditionally deferred as a result of his conduct in appearing in public, at Halloween party, in costume with afro wig, black face makeup, and prison jumpsuit).

Justice Weimer dissented and noted that the allegations came from a single post-verdict affidavit rather than a contemporaneous objection

…as a reviewing court, we cannot and should not simply assume that these allegations are accurate, let alone make the additional leap that such allegations justify granting a new trial. It has been aptly stated that “[a]n extraordinary claim requires extraordinary proof.” Similarly, the law requires that, before we overturn the work of a jury, comprised of citizens who take an oath to judge fairly and impartially, we must examine whether the judge has improperly held sway over the jury…

This examination required by law must be based on evidence, not conjecture, and begins with the trial record. In the trial record, there is nothing to substantiate the plaintiffs’ allegations of inappropriate behavior. Most significantly, there is not even an objection in the trial record for any of the allegations leveled against the judge. This court has previously found that the lack of a contemporaneous objection about a judge’s conduct reveals a lack of prejudice.

Justices Clark and Crichton also dissented.

Justice Crichton wrote

I respectfully dissent from the majority’s finding that plaintiffs are entitled to a new trial in this case. Although the majority finds that there is sufficient evidence in the record establishing that the trial judge’s actions during the jury trial of this matter resulted in a miscarriage of justice, in my view, the trial record is devoid of any specific evidence documenting the trial judge’s alleged behavior. Counsel for both parties conceded that they personally did not witness much of the alleged behavior, as it was “behind” them in a large courtroom. As a result, the only “evidence” presented at the post-verdict motion hearing is set forth by the jury foreperson in her arguably inadmissible affidavit and the self-serving testimony of one of the plaintiffs. Plaintiffs’ counsel has also offered little explanation as to why he did not issue subpoenas or compel testimony of others who were in the courtroom during trial to testify regarding the judge’s behavior (such as the bailiff, deputy clerk of court, court reporter, or even Judge Ellender), when the trial judge’s alleged actions are paramount to the plaintiffs’ claims of prejudice resulting from his behavior. Consequently, in my view, there is insufficient evidence to warrant a second bite at the apple…

However, and though the cumulative effect of Judge Ellender’s conduct is troublesome, I fear that this judge’s institutional history of untoward behavior has perhaps influenced the majority’s decision today, which should instead be focused on the evidence presented in this record in this case. In my view, the unsupported allegations of improper conduct in this instance do not warrant the reversal of a jury verdict and remand for a new trial.

Houma Today reported on the 2009  judicial discipline matter involving the judge. (Mike Frisch)