State v. Forte

¶1dissenting. I agree the judgment must be reversed but respectfully do not agree that the case should be remanded.

¶2In Forte I, we concluded that the record up to that point was “conspicuously unsupportive of an extraordinary remedy.” State v. Forte, 154 Vt. 46, 48, 572 A.2d 941, 942 (1990). Nevertheless, we left open the possibility that the record could be appropriately supplemented. We dismissed the petition, “without prejudice to bringing a petition for extraordinary relief in superior court if the State be so advised,” with the following observation:

If, as the State argues, the new trial ruling was “an arbitrary abuse of power,” motivated by factors not associated with a sound objective assessment of the demeanor of the prosecutor in question and the fairness of the proceeding, we fail to see why this petition was not initiated in superior court, where the trial record could be supplemented by an appropriate evidentiary foundation.

¶3Id. at 50, 572 A.2d at 943 (emphasis added).

¶4The sole improper motivation suggested by the record was gender bias.1 The district court’s rationale for its new trial rul*563ing, quoted extensively in Forte I, id. at 49, 572 A.2d at 942-43, evoked gender discrimination. Its justification for granting a new trial focused on the female prosecutor, who was described as “a fury seldom seen this side of hell,”2 who “charged” the trial “with emotion.” She reduced a female witness to tears with “[a]n unnecessarily vicious and brutal cross-examination,” causing the female court reporter, also in tears, to abandon her duties, never to return. The court insinuated she was even responsible for reducing two female jurors “to tears” when the verdict was rendered. Characterizing the conduct of the deputy state’s attorney — for example, “the rapidity of her speech and the intensity of her objections” — as “outside the role of prosecutorial propriety,” the court held that her “emotional involvement . . . deprived the defendant of a fair trial.” Id.

¶5Put mildly, the trial court’s ruling was a strong attack on a litigator seldom seen in a Vermont courtroom, yet both the superior court and this Court have tiptoed around the only question posed by it. Did the criminal trial judge grant a new trial because the prosecutor overstepped fair bounds or did he do it because he disapproved of her behavior based on stereotypical notions about how women should act?

¶6Though the district court’s words raise the issue of gender bias, they do not prove the ruling was motivated by it. Those words could also be a metaphorically overblown statement of a real case of prosecutorial misconduct. In short, Forte I posed a simple question: Was the new trial ruling motivated by gender bias?

¶7An extensive record has now been compiled, but we are no further along in answering this question. The superior court did not find any prejudice. Consequently, the petition for extraordinary relief should have been dismissed.

¶8*564In initially dismissing the petition for extraordinary relief, this Court stressed the trial judge’s unique position in assessing whether justice would be served by granting a new trial: “Even if we were to find scant support in the record for the new trial ruling, we are hard pressed to review what the trial court saw and heard.” Id. at 49, 572 A.2d at 942.1 accept the necessity of a superior court granting extraordinary relief in the rare (I would hope) case where a judge unequivocally exceeds the bounds of fair judgment. Making that determination is in itself a matter of discretion, and I would accord deference to the superior court in making it. But I believe at this juncture a remand is not warranted.

¶9The superior court is asked once again to assess the underpinnings of the new trial ruling. I seriously doubt on remand the superior court will countermand its sentiments, with which I agree, expressed in the decision today being reversed and remanded. The court stated in regard to testimony of various trial participants, including jurors, and the issue of abuse of discretion in granting a new trial:

We are asked, in essence, to admit evidence of matters not in the record which relate to the exercise of judicial discretion. The State’s approach would put this Court in the position of judging the Judge, or at best second-guessing him. This type of procedure would lead to disastrous results for the legal system. Litigants dissatisfied with a ruling involving judicial discretion could bring a second action to test the accuracy of the Judge’s observations. Abuse of discretion, like any error, must be ascertained from the physical record. As a result we decline consideration of the jurors’ testimony, or that of the prosecutors and court reporter.

. . . Observation of matters concerning the conduct of trial are solely within the trial court’s domain. Decisions concerning the conduct of the trial and the demeanor of the participants are not subject to review absent clear and serious abuse of discretion on the record. . . . [T]he trial court’s assessment of the live proceedings before it must prevail. The trial court’s assessment is, and in the longer view, should be given greater weight than that of a reviewing court. Put more plainly, this court can not ascertain *565whether or not there was over emotionalism and fury or whether demeanor was prejudicial from a transcript.

¶10(Emphasis added.)

¶11In my opinion, the threshold level for extraordinary relief was not reached for reasons stated in the quoted portion of the superior court’s opinion. To grant relief, the evidence must lead to the ineluctable conclusion that no reasonable basis could support the ruling granting a hew trial. That the record in this case is insufficient to establish extraordinary relief does not mean that gender bias can never be the basis for overturning a new trial ruling. Another forum is also available to review such misconduct. Allegations of gender bias that are insufficient to support extraordinary relief may warrant sanctions before the judicial conduct board, where the standard of review is not as high as in an action for extraordinary relief. See In re Hill, 152 Vt. 548, 562, 568 A.2d 361, 368 (1989) (evidence of judicial misconduct must be clear and convincing).

¶12Even though other observers of the criminal trial did not share the judge’s perception of the deputy state’s attorney’s demeanor, no person is better situated than the district judge to make such an assessment. Indeed, that is why we entrust the governing of the trial to the trial judge. Other trial participants — jurors, attorneys, court reporters — have other functions and other perspectives. It is not their duty to view the trial as a whole, and their testimony on the fairness of the trial is largely irrelevant. The only relevant testimony from these participants would be evidence of prejudice, evidence beyond that shown on the record, for example, unrecorded statements that would support a such a conclusion. The use of extrinsic testimony here went much too far. Jurors were even asked their opinions on whether the prosecutor was so overzealous as to be fairly characterized by the trial judge as “a fury seldom seen this side of hell.”

¶13Under the circumstances of this case, it was error to permit jurors to testify against the presiding judge. Cf. Peterson v. Chichester, 157 Vt. 548, 552, 600 A.2d 1326, 1329 (1991) (jurors forbidden to testify about deliberative process). Demeanor — including tone of voice, body language, look in the eye, etc. — is hardly an event subject to a swearing contest among trial participants. If trial observers’ opinions about the prosecutor’s de*566meanor were admissible, then, to be evenhanded, the judge’s testimony should also be included. But calling the trial judge to the stand to defend his observations and judgment would be a travesty, and it is no wonder that our rules of evidence flatly prohibit it. V.R.E. 605 (judge may not be witness to matter in which the judge sits). On the other hand, not listening to the judge’s side of the controversy in the face of juror criticism of the judge would be an ambush. In short, in such a situation, neither jurors nor judge should be permitted to testify as the other’s critic.

¶14Finally, this case was tried in December 1988. The alleged incidents occurred nearly five years ago. The motion for a new trial was granted “in the interests of justice,” V.R.Cr.P. 33, the petition for extraordinary relief was granted “in the interests of justice,” and presumably this Court is remanding “in the interests of justice.” I do not believe “the interests of justice” are being served by the enormous delay caused by the procedural course taken in this case.

¶15I would reverse.