dissent">SCHLEGEL, Judge

(dissenting).

I respectfully dissent.

The majority duly chastens the trial judge for conduct in his comments on the evidence sought to be solicited by counsel for the defendant. However, having so spoken, the majority excuses the conduct by holding the defendant has failed to show prejudice.

As stated in defendant’s brief: “It is fair to say, however, that no advocative conduct is more damaging to the fairness of the criminal trial than judicial comment on the quality, sufficiency or credibility of evidence in the case. The citations indicated give ample support for the showing of prejudice caused by the improper comments of the court here. The court’s comments could be taken no other way than to disparage defendant’s theory of defense. When the result is a diminution of the fairness of the trial, no further prejudice need be shown.”

The admonition of State v. Cuevas, 288 N.W.2d 525, 531 (Iowa 1980), should not be lessened by our tacit approval of the court’s apparent advocacy in this case. Certainly, even the recent case of Mills v. State, 383 N.W.2d 574 (1986) cannot be understood to lessen the importance of that principle. In Mills, the court held that counsel was not ineffective for failing to object to the court’s questioning of the defendant to clarify the record. It does not alter the rule that judges are not encouraged to enter the fray on behalf of either party.

The trial court in this case demonstrated his impatience with defense counsel, and his concern for the inclusion of evidence that he felt should be objected to. The record shows that there is a strong inference of bias on the part of the trial judge. This is intolerable. I would reverse the trial court’s refusal to declare a mistrial. It is unfortunate that a new trial is required under these circumstances, since apparently the defendant has now been tried for the second time, and the victim has been required to relive the incident in court twice before. None of these misfortunes, however, can justify excusing the demonstration of bias in front of the jury, and the implication of bias in the instructions to the prosecutor, which destroy the fairness of the trial. If a judge cannot maintain an impartial attitude even in the trial of defendants charged with outrageous and heinous crimes, his danger to a system of justice is immeasurable.

I would reverse.

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