What is the role of a trial judge? This question may often be debated among lawyers and between lawyers and judges themselves and maybe even by law students in school, but rarely is it a hot topic discussed in the public by non-lawyers. Until now. You may be following the Paul Manafort trial, in which the trial judge has been both criticized and congratulated for his conduct in presiding over that trial. As I write this, the jury is out. By most news accounts, that trial judge, Hon. T.S. Ellis, has often made known his likes and dislikes to the jurors and the prosecution seems to be taking the brunt of the abuse. So much so, that the prosecution has filed at least two motions requesting the trial judge apologize and make it clear to the jury that his remarks are not to be taken as commentary on the strength or weakness of the prosecution’s case. Things seem to have finally boiled over when, one morning, the trial judge did just that, he essentially admonished himself to the jury for his comments and said “Put aside any criticism. I was probably wrong in that,” and Ellis said, concluding, “Any criticism of counsel should be put aside — it doesn’t have anything to do with this case.” “This robe doesn’t make me anything other than human.”
“This robe doesn’t make me anything other than human.” Think about that for a second. Who else wears a cape at work? A Super Hero? Every word that comes out of a trial judge’s mouth in front of a jury has some persuasion attached to it…some hidden meaning. Jurors often take their cues from the trial judge. If the trial judge doesn’t seem to like a certain attorney, well, guess what? The jury probably won’t like that attorney, either. Jurors may be thinking: “Who does the judge think should win? He’s the expert, he knows. Does he like the defense attorney better than the plaintiff’s attorney? Does she think the plaintiff is exaggerating? He was rude to the female lawyer…maybe he thinks she is incompetent? What will he think of us if we find for the plaintiff? And return a large verdict? Maybe he thinks that shouldn’t happen in his courtroom?” As one trial lawyer said about Judge Ellis. “He can be very dominating,” said Jim Brosnahan, a California trial lawyer who defended John Walker Lindh in the American Taliban casebefore Judge Ellis. “The interesting question is: Is it aimed fairly at both sides, or is it particularly at one side?” Also, keep in mind how extraordinary it is that Judge Ellis essentially apologized to the jury for his own comments, recognizing they may have sent the wrong signal to the jury. This is a very rare occurrence for a judge to do that.
First, let me say, that we are blessed with many wonderful trial judges in Georgia. I have tried nearly 75 jury trials in the last 30 years of practicing law, all in Georgia, and with the very blatant exception of one Superior Court judge (she knows who she is), I have always been treated with the utmost respect and courtesy by our trial judges. Even when we may disagree, we do so with civility, not taking personal shots at one another. That is not to say that some aren’t demanding, or controlling, or picky, or even temperamental. Many trial judges are all of those things, because they are human and sometimes the stress of a trial gets to them the way it gets to everyone involved or they simply see their role as being in command of their courtroom. It has been my experience that our Georgia trial judges treat all those who come before them with the civility expected out of someone who wears a robe, has her name on a courtroom and has been given the authority by the State to preside over a trial, which is often one of the most important moments in a citizen’s life.
So what is a trial judge’s role? Many lawyers would tell you it is simply to call balls and strikes, to make sure the case is tried fairly to both sides according to the laws of the State and the Constitution. In a criminal trial it is to ensure a defendant receives a fair trial that complies with the Constitutional requirements for such. Trial judges should not insert themselves into the trial. The trial is not about them. It is not the duty of trial judges to find the truth. They are there to make sure the process is fair. Just one great example of this is a trial I was watching the other day in Fulton County. I walked into a packed courtroom where an expert witness was on the stand being cross-examined. The attorney asking questions had numerous charts and maps displayed before the jury, so that it was difficult to see everyone from the back of the court where I was sitting. When I first walked into the courtroom, I immediately noticed there was no judge on the bench! I thought: that’s odd…they can’t be questioning a witness without a judge in the courtroom. And then defense counsel objected to a question and I heard in a loud, commanding voice: Objection sustained! It was from the trial judge, who I couldn’t see but could hear from the corner behind the jury box watching the cross-examination. And I thought that’s exactly how a trial judge should be, calling balls and strikes but only when asked to get involved. And when not asked to be involved, he is an observer, like most others in the courtroom. This takes great patience and wisdom. Even Judge Ellis admitted “Judges should be patient — they made a mistake when they confirmed me.” “I’m not patient. So don’t try my patience.”
Recently, the Chief Judge of the Fulton Superior Court said in an interview, as to what litigants and lawyers can expect in his courtroom, “they should expect that I will listen respectfully and let them speak their piece, that I will respond appropriately,” he said. Judge McBurney also said, “No matter how annoying a lawyer may be, no matter how unrepentant a defendant may be, they should always feel like they had an opportunity to be heard. ” Probably one of the best examples I have seen by a trial judge in letting voices be heard comes from the criminal sentencing hearing of Dr. Larry Nassar in January of this year. You will recall that Larry Nassar was the U.S. Gymnastics physician who sexually abused hundreds of gymnasts under the guise of “medical treatment.” The trial judge was Judge Rosemarie Aquilina who had this to say about making sure people in her courtroom are heard:
“I do one case at a time and I really so very much appreciate all of your thank yous. I’ve read some of the Twitters and Facebooks and all of what’s going on in media. I’m not special, I’m doing my job. If you come into my courtroom any Wednesday and watch sentencing, I give everybody a voice. I give defendants a voice, their families when they’re here, I give victims a voice. I treat everyone like family because that’s the justice system I was raised to believe in.”
Some observers thought Judge Aquilina went too far with her words during Nassar’s sentencing. As one writer put it: “perhaps without realizing it, Aquilina overstepped her bounds as a judge and adopted the role of victim advocate.” Others think Judge Aquilina handled the sentencing with dignity, respect and grace.
So, what is the role of a trial judge? In the end, it is to faithful to the law and the Constitution, to do everything to insure a just trial under law, and sometimes to show mercy.
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of he American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.