"Ill-advised" comments by trial judge does not entitle losing plaintiff to a new trial

Taking a case to trial is always a challenge. Get your witnesses and exhibits together. Get your direct and cross examinations together. Draft proposed jury instructions. Prepare for evidentiary objections. And worry about the trial judge.

The case is Henderson v. City of New York, a summary order decided on July 1. This police misconduct case went to trial. The plaintiff lost, and takes up an appeal, arguing that the judge denied him a fair trial because of his conduct on the bench in front of the jury.

The Court of Appeals (Calabresi, Chin and Lohier) says that "Henderson contends that the district court denied him a fair trial by: repeatedly taking over the questioning of witnesses; eliciting testimony that supported the defendantʹs arguments; affirming the testimony of defense witnesses as true; and mocking and chastising his counsel in the juryʹs presence."

In a footnote, the Court of Appeals gives us a taste of what happened in trial: "For instance, in the juryʹs presence, the district court asked Hendersonʹs counsel why he was 'afraid' to directly ask former Commissioner Raymond Kelly why it took so long to reinstate Henderson to full duty: 'Why donʹt you just ask him why did it take so long, I will let you ask that question if he knows the answer. Are you afraid to ask that question for some reason? Do it.'"

The judge told the jury during trial that it should not hold it against plaintiff's lawyer that he "was tough" on him. He told the jury that he was simply trying to manage the trial. This kind of curative instruction can protect the trial court when the losing party takes up an appeal and places the judge's behavior under a microscope. While it says there were "a few perhaps ill-advised comments" by the trial court, the Court of Appeals says the judge's behavior was not enough to grant a new trial. "While the district court was an active participant in the trial, we are not persuaded that it overstepped its bounds to the extent that Henderson was denied a fair trial. The district courtʹs frequent interventions to pose questions to witnesses were, as a whole, attempts to clarify factual issues for the jury or to move counsel along."