Most of the time judges are restrained, but occasionally you see in them glimpses of their true spirit. It was thus as the first of the closing statements were wrapping up in the never-ending Niazi trial that we got just such a glimpse into Judge Stephen Mock.
As the jurors filed out of the jury box, across the well of the courtroom, turning past the public area and through the short narrow passage that leads to the exit of the courtroom, a young lady who had been seated in the public viewing area was walking the opposite way through the group of jurors.
She is a relative of one of the defendants and was walking towards the defendants to speak with them during the break. As this lady was passing juror number two, they looked at one another and smiled .
Juror number two, also a young lady with a warm and pleasant demeanor, commented that it was a lot of information that they had just heard, most likely referring to the closing argument that had just concluded. The young lady replied that yes it was. They passed each other and kept going their own ways.
As the proceedings were set to resume, Judge Mock came out of his chambers, walked across the floor of the court to the threshold where the public sits.
He stood facing the two or three members of the public and explained that the bailiff had informed him that, as the jurors were leaving for the ten-minute break, a member of the public had interacted with one of them. Though he noted that the individual in question was not present in the courtroom at that time, he continued with what he had to say.
In a stern tone he stated that jurors are not to be spoken with under any circumstances. He said that it risks a mistrial and creates the prospect of having to conduct the entire trial again from the very beginning.
He said that if he hears again of any such contact with jurors, that he will have the courtroom closed and will conduct the rest of the trial outside of public access. He said to the observers that if they care about justice in this case that they would not speak to any jurors under any circumstances.
After this, the jury was brought in again and Judge Mock advised them that since there was little time left in the day, that the following closing argument would being at 9:00 AM the following morning and that by some point tomorrow afternoon, after the remainder of the closing arguments were heard, the jury would be sent to deliberate the case. With that, he sent the jury home.
Notably absent from the judge’s comments to the jury at that point was any utterance of an instruction against discussing the case with anyone. Given that the judge had admonished the public about contact with the jury, it would seem a wise precaution to remind the jury of that instruction at this time.
More generally, having seen the numerous trials that we have before Judge Mock, there is a marked absence of repeated reminders to his juries about not discussing the case, that would serve to keep the instruction fresh in their minds. By contrast, at the other end of the building, the juries of Judge Timothy Fall are doggedly reminded on every single occasion before they leave the courtroom that they are not to discuss the case with anyone under any circumstances, that they are not to form any opinions until they have heard all the evidence.
Judge Mock, beyond an instruction at the beginning of a trial, does not remind his juries of this rule. This invites natural complacency which is to be expected, especially during a trial of twenty days, that is in its fourth week now.
Nevermind that the Judge was addressing people who had nothing to do with the transgression. Nevermind he failed to recognize that the juror had approached the audience member, not the other way around.
But most particularly, his threat of banning the public from the courtroom raises all sorts of red flags. That should be the response of last resort, not the first threat that a Judge makes. It should not be taken lightly.
We can contrast this with the December actions of Judge Fall in the Galvan trial.
When Deputy DA Carolyn Palumbo launched into a quasi-tirade decrying the bloggers who are blogging on so many blogs about this case and asking that the Judge clear the chambers to hear something out of the range of the jury, Judge Fall did not even blink.
He carefully weighed the evidence and the need to go into private, and saw clearly that there was no reason to do so. He even lectured the Deputy DA on the need for the public to be able to watch court proceedings and the importance of the Bill of Rights.
Given the fallout back in 2008 from closing the courtroom in the Topete arraignment to reporters and the public, one would think Judge Mock would be more cautious. Alas, based on an incomplete account of what happened, he made a threat to close the courtroom to the public.
Judge Fall, to his credit, understood the importance of a public trial and that was the last thing he was about to do. Judge Mock made the threat far too quickly.
Barring the public is an extreme measure that should be considered in an extreme situation.
Here, a young lady, without harmful intent, interacted with a juror. The judge should have instructed her in particular, as well as the rest of the public in attendance.
Given that she was a relative of the defendants, the bailiff could have easily located her, and she actually happened to be waiting outside on the steps of the courthouse. That would have been a more appropriate remedy. A reminder to the jury would have also been appropriate here.
Given that the juror in this case also wholeheartedly interacted with the visitor, it should be an indicator to the judge that he has not done a sufficient job of explaining to the jury exactly what it is that is not allowed.
—David M. Greenwald reporting