McIntyre v. State

¶1concurring.

¶2There is a significant possibility that a criminal defendant’s trial may be rendered fundamentally unfair by the replacement, after evidence has been introduced but before the verdict is rendered, of the judge originally hearing the trial. In light of the serious consequences of the substitution process on a criminal defendant’s trial, it behooves this Court to set forth guidelines trial judges should follow to ensure against any fundamental unfairness in future criminal trials.

¶3I agree with several of the safeguards detailed in the dissenting opinion that would serve to eliminate the possibility of a substitution rendering a criminal trial fundamentally unfair. I would have the departing judge set forth on the record the reasons for which the departure is necessary. Those reasons must be of sufficient magnitude to justify the departure. Furthermore, all other alternatives to substitution should be fully explored and, except in situations where alternatives are clearly not applicable, the reasons behind the decision not to utilize them should also be set forth in the record. Finally, I would have the replacement judge scrupulously review the prior proceedings and state on the record his or her familiarity therewith so as to establish that the replacement judge is fully prepared to render informed rulings on any matters that might arise and to instruct the jury thoroughly.

¶4Although there was no requirement that the above matters be made of record at the time of McIntyre’s trial, an application of these safeguards to this case reveals no reversible error. The record establishes that the original judge carried on with his duties notwithstanding the personal anxiety that must have resulted from knowing of his grandchild’s critical illness and that it was only with the child’s tragic passing and upon his son’s request for his father’s presence that the judge determined it was no longer possible for him to continue sitting on the bench during the remainder of McIntyre’s trial. There is no question that the death of the judge’s grandchild excused him from the bench and, in light of the devastating and prolonged effect such a loss has on a deceased child’s family, clearly justified the decision not to grant a continuance in the case.

¶5As to the replacement judge’s familiarity with the prior proceedings, I disagree with the dissent’s intimation that the transcript re-*13fleets any impropriety on the part of the replacement judge.2 The replacement judge did have available the transcripts of pre-trial motion hearings (which duplicated in large part the testimony adduced at trial before the original judge) and the replacement judge stated he would examine any portion of the trial transcript brought to his attention that defense counsel considered relevant to any ruling the court would be called upon to make. Because the record reflects that McIntyre failed to request any such examination, it is mere speculation whether or not the replacement judge’s proposed method for rendering rulings would have been sufficient. Finally, while the record does not reflect affirmatively that the replacement judge was able to familiarize himself with the earlier trial proceedings, after a careful reading of the transcript, the objections raised and ruled upon, and the charge conference proceedings, I am convinced that, notwithstanding the absence of an affirmative statement on the record, McIntyre’s right to a fair trial was not infringed upon by the substitution that occurred in this case.

¶6Accordingly, because McIntyre has not shown reversible error and an independent examination of the record establishes that McIntyre’s trial was not rendered fundamentally unfair by the substitution of the original judge, I can therefore concur with the majority’s holding in Division 2. I fully concur in the remaining divisions.