Thursday, August 17, 2017

Interference Penalty Is New Trial

The United States Court of Appeals for the Fourth Circuit reversed a conviction due to the conduct of the trial judge

A jury convicted Hemza Menade Lefsih, an Algerian native who entered the United States through the Diversity Immigrant Visa Program, of immigration fraud. During Lefsih’s trial, the district court interjected numerous times, expressing skepticism of the Diversity Immigrant Visa Program and a negative impression of individuals who participate in the program. We find that this judicial intervention was improper and denied Lefsih the opportunity for a fair and impartial trial, and therefore vacate the judgment of conviction.

The court quotes the problematic questions and comments of the judge and notes that defense counsel did not object

The crux of Lefsih’s claim is that the district court improperly interfered with his trial through “ill-advised” questions and comments, see Martinovich, 810 F.3d at 239 (finding error in district court’s “ill-advised comments and interference”), posed to the government’s second witness, Gary Freitas. Specifically, Lefsih argues that the district court impermissibly conveyed to the jury, through questions and comments that otherwise were wholly extraneous, the court’s skepticism of the Diversity Program through which Lefsih entered the country, as well as its negative view of the immigrants– like Lefsih – who avail themselves of the Program. We must agree.

While a judge is not a potted plant nonetheless here

In the context of an immigration-fraud case – that is, with immigration front and center before the jury – the court began with a series of questions and comments suggesting a negative view of thevery immigration program through which Lefsih had entered the country: “[U]nbelievable, unbelievable.” J.A. 149. And contrary to the government’s argument, what reasonably could have appeared to the jury as the court’s disapproval did not stop with the Diversity Program itself, or the Congress that established it. Instead, the court went on to provide a negative assessment of the people – like Lefsih himself – who make use of the Diversity Program to come to the United States. According to the court, such immigrants, unlike those admitted through other programs, need not exhibit the “skill or personal characteristics” to “contribute to the well-being of the United States.” J.A. 148. And the court further questioned whether these individuals – again, including Lefsih, on trial for immigration fraud – act in good faith when participating in the Program, suggesting that lottery winners could abuse the system by “drag[ging] along [their] ten kids and four wives or what[.]” J.A. 152. As we have explained in reviewing the sufficiency of the evidence, this is a case in which the credibility of the defendant was of “crucial importance,” and as a result, aspersions cast by the court on the trustworthiness of Diversity Program entrants would have carried special weight...

Again, we do not doubt that the district court in this case acted without any intent to influence the jury improperly. And we appreciate that the defendant’s failure to object at trial – which might have allowed the district court to correct its error in real time – creates an especially “high bar for appellate review.” See id. at 239. But in the particular circumstances of this case, we conclude that the court’s interventions were not only plainly erroneous but also “so prejudicial as to deny the defendant[] an opportunity for a fair and impartial trial,” thus affecting Lefsih’s “substantial rights.” See id. at 238 (internal quotation marks omitted). And because the error here is of the kind that may seriously affect the “fairness, integrity or public reputation of judicial proceedings,” we will correct it by vacating Lefsih’s conviction.

Circuit Judge Harris authored the opinion. (Mike Frisch)

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