Tuesday, March 8, 2022

Isolated Intemperate Remarks Did Not Establish Judicial Bias

The Connecticut Supreme Court rejected claims of judicial bias in a divorce trial that were raised for the first time on appeal.

The court found isolated "intemperate" comments of the judge did not establish bias

At the outset, it is important to note that the claim of judicial bias is a serious matter, which we do not take lightly. We do not, however, review such allegations in a vacuum, divorced from the context in which the events took place. In order to understand that context, it is important to understand the following background. During the course of the pretrial period, the plaintiff had at least three different attorneys. In addition, the plaintiff, who is an attorney, also entered an appearance as a self-represented party. The trial court allowed the plaintiff to argue on her own behalf when she was in between attorneys and did not have counsel for a particular hearing or conference. This was not a case of hybrid representation, however. Once represented by counsel, the trial court repeatedly reminded the plaintiff, during multiple hearings and conferences, that she could not interrupt the proceedings and must speak through her counsel. Despite the court’s repeated reminders about not interrupting and speaking through her counsel, the plaintiff continued to interrupt the proceedings.

When a zoom-held hearing had a glitch

As a result, one can hear the trial court whispering during the recess. The plaintiff points to one of the statements made during this recess in support of her plain error claim—namely, the trial court said, ‘‘I just am not gonna have that stupid woman talk.’’ Thereafter, the plaintiff’s attorney returned to the call and said ‘‘[h]ello.’’ The defendant’s attorney also said ‘‘[h]ello.’’ The trial court then said, ‘‘[w]e are returning on to the record then.’’ The conference then continued for more than one hour.

The plaintiff then interrupted again, and the court offered another recess. At that point, the trial court clearly said, ‘‘[t]ake a recess.’’ The plaintiff points to statements made during this recess that can be heard on the audio recording. First, while conversing with the court clerk, off the record, regarding the plaintiff’s late disclosure of an expert witness, the trial court commented that, ‘‘[a]t least she’ll pay for an expedited [report].’’ One can then hear laughter, and the trial court said, ‘‘I know, it’s horrible.’’ A few seconds later, the trial court said: ‘‘It’s because of Marianna . . . . She’s not sick.’’ The trial court also said, ‘‘[s]he’s gonna be a mess until we get it done.’’ After the plaintiff finished consulting with her attorney, the plaintiff’s attorney and the defendant’s attorney returned to the call, and the trial court clearly stated: ‘‘We’re back on the record in the matter of Ponns Cohen.’’

A review of the audio recording reveals that these comments were made by the trial court in frustration during recesses from a telephonic conference, in which the plaintiff repeatedly interrupted the proceedings and ignored the trial court’s repeated instructions that she must speak through her counsel. The trial court granted multiple recesses in order to accommodate the plaintiff and to allow the plaintiff to confer with her attorney, but the interruptions continued.  Significantly, there is no indication that the trial court’s annoyance with the plaintiff’s ongoing misbehavior had any effect on the court’s rulings; to the contrary, at the end of this conference, the trial court allowed the plaintiff to disclose her expert, despite her failure to comply with the trial management orders regarding the expert disclosure. Furthermore, a review of the entire record demonstrates that the trial court treated the plaintiff fairly and with consideration throughout the lengthy proceedings. Indeed, the trial court granted many of the plaintiff’s numerous requests for continuances, over the objections of the defendant’s attorney. In doing so, the trial court acknowledged and sympathized with the plaintiff’s health issues and family emergencies. Therefore, although the trial court’s comments were ill-advised, we cannot conclude that they ‘‘constitute[d] an error that was so obvious that it affect[ed] the fairness and integrity of and public confidence in the judicial proceedings,’’ and an error ‘‘of such monumental proportion that [it] threaten[ed] to erode our system of justice and work a serious and manifest injustice on the aggrieved party.’’ (Internal quotation marks omitted.) State v. Silva, 339 Conn. 598, 620–21, 262 A.3d 113 (2021).


In light of the isolated nature of the comments, the fact that they did not reflect an opinion derived from an extrajudicial source, and the trial court’s ultimate award to the plaintiff of approximately 50 percent of the marital assets—hardly an outcome bespeaking bias on the part of the decision maker—we cannot conclude that there was an obvious error that resulted in manifest injustice. These isolated comments would not lead a reasonable person to question the judge’s impartiality in this case. Instead, a review of the record reveals that, despite these comments, the trial court repeatedly accommodated the plaintiff and patiently sought to unravel the morass of discovery and procedural issues that occurred during this litigation, without declaring a second mistrial. Accordingly, we cannot conclude that the doctrine of plain error requires reversal in the present case.


Judicial Ethics and the Courts | Permalink


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