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JUDICIAL MISCONDUCT

The appropriate role for a judge to play in a jury trial has been the subject of a number of appeals. Courts have said a trial judge must always remain fair and impartial. Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 09 (9th Cir.'89). He ' 'must be ever mindful of the sensitive role [the court] plays in a jury trial and avoid even the appearance of advocacy or partiality.' ' Id. (quoting U.S. v. Harris, 501 F.2d 1, 10 (9th Cir.'74)).

At the same time, however, courts have recognized that a trial judge is 'more than an umpire.' U.S. v. Laurins, 857 F.2d 529, 37 (9th Cir.'88), cert. denied, 492 U.S. 906 ('89). It is perfectly appropriate for a judge to 'take part where necessary to clarify testimony and assist the jury in understanding the evidence.' U.S. v. De Sisto, 289 F.2d 833, 834 (2d Cir.'61). See also Laurins, at 537 (trial judge 'may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition'); U.S. v. Mostella, 802 F.2d 358, 361 (9th Cir.'86) (same); U.S. v. Poland, 659 F.2d 884, 93 (9th Cir.) (finding questions calculated to make testimony clearer to jury not improper), cert. denied, 454 U.S. 1059 (1981).

'[t]he standard for reversing a verdict because of general judicial misconduct during trial is rather stringent.' Kennedy, 901 F.2d at 709. To sustain a claim of this kind, there must be an 'extremely high level of interference' by the trial judge which creates 'a pervasive climate of partiality and unfairness.' U.S. v. DeLuca, 692 F.2d 1277, 1282 (9th Cir.'82). See also Laurins, at 537 ('A judge's participation [in the trial] justifies a new trial only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality.').

Because this case comes to us in the posture of a habeas appeal, the question is whether the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the U.S. Constitution. Gayle v. Scully, 779 F.2d 802, 06 (2d Cir.'85), cert. denied, 479 U.S. 838 ('86); McBee v. Grant, 763 F.2d 811, 18 (6th Cir.'85).

Mostella, 802 F.2d at 362 (judge's excessive questions and sarcastic comments did not amount to 'extreme overstepping of his proper judicial role'--conviction affirmed); Poland, 659 F.2d at 894 (finding trial judge's impatience with defense, displays of irritation, and use of sarcasm, while inappropriate, were not prejudicial).

A federal court has no supervisory authority over criminal proceedings in state courts. The only standards it can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not 'of sufficient gravity to warrant the conclusion that fundamental fairness has been denied.' Id. at 1572. See Gayle v. Scully, at 807 (trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, 'approached but did not cross the line that permits [a ruling] that the Constitution has been violated').

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