Rogue Judge

Eating Candy, Sitting Beside Deliberating Jurors in Jury Box=BenchSlap for Judge Ellender

Rogue Judge  Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #031
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Per Curiams handed down on the 27th day of May, 2016, are as follows:
PER CURIAM:
2015-C -1508 RICHARD BRYANT LOGAN AND CARRIE LOGAN v. DR. DONALD PAUL SCHWAB,
JR. (Parish of Terrebonne)
For the reasons assigned, the judgment of the district court
denying the motion for new trial is reversed. Plaintiffs’ motion
for new trial is granted. The case is remanded to the district
court for further proceedings.
JOHNSON, C.J., concurs and assigns reasons.
WEIMER, J., dissents and assigns reasons.
CLARK, J., dissents with reasons.
CRICHTON, J., dissents with reasons.
05/27/16
SUPREME COURT OF LOUISIANA
NO. 2015-C-1508
RICHARD BRYANT LOGAN AND CARRIE LOGAN
VERSUS
DR. DONALD PAUL SCHWAB, JR.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF TERREBONNE
PER CURIAM
It is well settled that a new trial should be ordered when the court is convinced
by an examination of the facts that the judgment would result in a miscarriage of
justice. Lamb v. Lamb, 430 So. 2d 51, 53 (La. 1983). Having reviewed the record
and considering the briefs and oral argument of the parties, we are convinced that the
trial judge’s actions resulted in a miscarriage of justice. Therefore, considering the
unique and narrow facts presented, we conclude a new trial must be granted.
DECREE
For the reasons assigned, the judgment of the district court denying the motion
for new trial is reversed. Plaintiffs’ motion for new trial is granted. The case is
remanded to the district court for further proceedings.
05/27/16
SUPREME COURT OF LOUISIANA
NO. 2015-C-1508
RICHARD BRYANT LOGAN AND CARRIE LOGAN
VERSUS
DR. DONALD PAUL SCHWAB, JR.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF TERREBONNE
JOHNSON, Chief Justice, concurs.
I agree with the decision of this court, finding plaintiffs are entitled to a new
trial. I write separately to emphasize the unprofessional and inappropriate nature of
the trial judge’s behavior in this case.
In my view, it is undisputed that Judge Ellender engaged in bizarre and
disturbing behavior during the jury trial of this matter such that the jury’s verdict
cannot be allowed to stand. According to plaintiffs, Judge Ellender failed to preside
over the trial from his position on the bench, but rather roamed around the entirety of
the courtroom during much of the trial. Judge Ellender would stop and look out of the
windows in the courtroom while plaintiffs’ counsel was examining witnesses. Judge
Ellender continuously moved around the courtroom, sitting in various chairs, and,
inexplicably, sat in the jury box with the jurors while eating candy – all during
witnesses’ testimony. The record also contains uncontroverted testimony from the
plaintiff that Judge Ellender greeted the defense medical expert, defendant’s medical
partner, with a handshake and embrace in front of the jury. Additionally, although
neither counsel asked plaintiffs’ medical expert, Dr. Leo Murphy, any questions
regarding his fees and expenses during the trial, after Dr. Murphy was released Judge
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Ellender took it upon himself to question plaintiffs’ counsel about the costs paid to
Dr. Murphy in the presence of the jury.
I find Judge Ellender’s actions unacceptable. La. C.C.P. art. 1791 provides:
“The judge in the presence of the jury shall not comment upon the facts of the case,
either by commenting upon or recapitulating the evidence, repeating the testimony
of any witness, or giving an opinion as to what has been proved, not proved, or
refuted.” Judge Ellender’s insidious actions of leaving the bench, wandering around
the courtroom, looking out the windows, eating candy and otherwise failing to pay
attention to the proceedings communicated to the jury in a non-verbal way his opinion
that the trial was not serious and could be treated as a joke.
The inappropriateness of Judge Ellender’s behavior is further emphasized by
La. C.E. art. 614. That provision permits the court to call and question witnesses,
however when the case is to be decided by a jury, the court’s participation in the trial
is expressly limited by subsection D: “In a jury trial, the court may not call or examine
a witness, except upon the express consent of all parties, which consent shall not be
requested within the hearing of the jury.” Although Judge Ellender did not question
Dr. Murphy directly, his questioning of plaintiffs’ counsel regarding Dr. Murphy’s
fees and costs while the jury was present violated the spirit and intent of the rule.
The cumulative effect of Judge Ellender’s behavior and actions can only be
viewed as resulting in prejudice to the plaintiffs’ case. Not only were Judge
Ellender’s actions a continuous source of distraction for the jury, I find his systematic,
intentional and disruptive behavior clearly undermined the seriousness of the court
proceedings and the legitimacy of plaintiffs’ case.
I find Judge Ellender’s actions are even more disturbing considering this courtpreviously disciplined him twice for his conduct both on and off the bench.1 Under
the facts and circumstances of this case, a new trial must be granted.
1 In re Ellender, 09-0736 (La. 7/1/09), 16 So. 3d 351 (Judge Ellender suspended for thirty
days without pay due to his failure to treat a pro se petitioner’s application for protection from
domestic abuse seriously, and acting in a condescending and demeaning manner towards her); In
re Ellender, 2004-2123 (La. 12/13/04), 889 So. 2d 225 (Judge Ellender suspended for one year,
without pay, with six months of that suspension conditionally deferred as a result of his conduct
in appearing in public, at Halloween party, in costume with afro wig, black face makeup, and
prison jumpsuit).
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05/27/16
SUPREME COURT OF LOUISIANA
NO. 2015-C-1508
RICHARD BRYANT LOGAN AND CARRIE LOGAN
VERSUS
DR. DONALD PAUL SCHWAB, JR.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
PARISH OF TERREBONNE
WEIMER, J., dissenting.
The plaintiffs allege that the trial court judge behaved inappropriately during
trial by joining the jury in the jury box where he sat and proceeded to eat candy and
by physically embracing the surgical partner of the defense’s medical expert in front
of the jury. Assuming these allegations are accurate, at a bare minimum, the judge’s
conduct would be an affront to the solemnity appropriate to a trial.
However, as a reviewing court, we cannot and should not simply assume that
these allegations are accurate, let alone make the additional leap that such allegations
justify granting a new trial. It has been aptly stated that “[a]n extraordinary claim
requires extraordinary proof.” 1 Similarly, the law requires that, before we overturn
the work of a jury, comprised of citizens who take an oath to judge fairly and
impartially, we must examine whether the judge has improperly held sway over the
jury. See La. C.C.P. art. 1791 (“The judge in the presence of the jury shall not
comment upon the facts of the case, either by commenting upon or recapitulating the
1 Marcello Truzzi, On the Extraordinary: An Attempt at Clarification, Zetetic Scholar, Vol. 1, No.
1, p. 11 (1978).
evidence, repeating the testimony of any witness, or giving an opinion as to what has
been proved, not proved, or refuted.”).
This examination required by law must be based on evidence, not conjecture,
and begins with the trial record. In the trial record, there is nothing to substantiate the
plaintiffs’ allegations of inappropriate behavior. Most significantly, there is not even
an objection in the trial record for any of the allegations leveled against the judge.
This court has previously found that the lack of a contemporaneous objection about
a judge’s conduct reveals a lack of prejudice. See State v. Shaw, 06-2467, p. 23 n.8
(La. 11/27/07), 969 So.2d 1233, 1247 n.8 (evaluating the claim that a judge
improperly inquired into whether a defendant at a criminal trial had considered
whether to testify, this court observed: “In fact, the record is devoid of a
contemporaneous objection to the trial court’s questions, indicating that, at the time
it occurred, the inquiry was not deemed by either the defendant or his counsel to be
improper or coercive.”).
Casting aside the principles of review just described, in determining the work
of the jury should be discarded, the majority has relied on an affidavit by a single
juror who served as the jury foreperson. To be clear, in the unique setting of a motion
for new trial, it is appropriate to consider evidence outside the trial record if it is
properly admitted into evidence. As previously mentioned, the trial record is the
main evidence for evaluating whether to grant a new trial. In extraordinary cases, the
trial record may be the starting point, rather than the ending point, when looking for
evidence of a judge improperly influencing the jury. However, the law also contains
the counsel of great care and caution in resorting to a juror’s impressions.
Specifically and directly, La. C.E. art. 606(B) limits a juror’s testimony to “whether
any outside influence was improperly brought to bear upon any juror” and prohibits
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testimony as to the “effect of anything upon his or any other juror’s mind or emotions
as influencing him” or “concerning his mental processes” as to reaching a verdict.
Although the plaintiffs’ counsel has argued that the jury foreperson told him
“it was abundantly obvious that [the judge] had a bias in favor of the [defendant],”
the foreperson’s affidavit did not state that the trial judge was biased in favor of the
defendant. Because the affidavit lacks testimony as to “whether any outside influence
was improperly brought to bear upon any juror” pursuant to La. C.E. art. 606(B), the
affidavit would ordinarily be inadmissible for purposes of seeking a new trial. The
affidavit essentially contains the impressions prohibited by La. C.E. art. 606(B) as to
the “effect of anything upon his or any other juror’s mind or emotions as influencing
him” or “concerning his mental processes” when reaching a verdict.2
Just as problematic as the affidavit itself is the route the majority takes to
consider it. The majority absolves the plaintiffs for failing to contemporaneously
object to the trial judge’s behavior. However, the majority considers the content of
the affidavit by reasoning that the defendant failed to contemporaneously object to
its introduction into evidence. Therefore, even if unintentional, it appears the
In 2 Tanner v. United States, 483 U.S. 107, 120-21 (1987), the Supreme Court, interpreting the
analogous federal rule of evidence, held this prohibition barred consideration of evidence that jurors
used drugs and alcohol during the trial. The Court stated:
There is little doubt that postverdict investigation into juror misconduct
would in some instances lead to the invalidation of verdicts reached after
irresponsible or improper juror behavior. It is not at all clear, however, that the jury
system could survive such efforts to perfect it. Allegations of juror misconduct,
incompetency, or inattentiveness, raised for the first time days, weeks, or months
after the verdict, seriously disrupt the finality of the process. See, e.g., Government
of Virgin Islands v. Nicholas, [759 F.2d] at 1081 (one year and eight months after
verdict rendered, juror alleged that hearing difficulties affected his understanding of
the evidence). Moreover, full and frank discussion in the jury room, jurors’
willingness to return an unpopular verdict, and the community’s trust in a system that
relies on the decisions of laypeople would all be undermined by a barrage of
postverdict scrutiny of juror conduct. See Note, Public Disclosures of Jury
Deliberations, 96 Harv.L.Rev. 886, 888-892 (1983).
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majority employs a double standard when applying the contemporaneous objection
requirement.3
As this court previously recognized, there are two rationales behind the
contemporaneous objection rule: “(1) to put the trial judge on notice of the alleged
irregularity so that he may cure the problem and (2) to prevent a defendant from
gambling for a favorable verdict and then resorting to appeal on errors that might
easily have been corrected by objection.” State v. Thomas, 427 So.2d 428, 433 (La.
1982) (on reh’g). A party should not be entitled to stash an objection in his back
pocket and sit on it, only to pull it out after an adverse judgement. Now, however, the
majority’s willingness to overlook the plaintiffs’ failure to contemporaneously object
discourages curing problems during trial and simultaneously casts a cloud of
uncertainty over jury verdicts.
I hasten to add that the jury’s work is not the only effort that has been negated
by the slender reed of an affidavit of questionable admissibility offered at a
questionable second attempt at a new trial. The appellate court applied wellestablished
standards of review to the evidence adduced at trial and found no error
in rejecting the plaintiffs’ case on the merits.
Relying 3 on the lack of a contemporaneous objection by the defendant is all the more problematic
because of the awkward manner the plaintiffs employed to introduce the otherwise inadmissable
affidavit. The plaintiffs did not seek to introduce the affidavit when first presenting the plaintiffs’
motion for new trial. Instead, the affidavit was attached to a supplemental memorandum filed on
the day of the hearing. From the hearing transcript, it does not appear the affidavit was formally
introduced at the new trial hearing. Essentially, the affidavit was in the record, but had not been
introduced into evidence. Subsequent to the denial of the initial motion for new trial, the plaintiffs
filed a motion to recuse the trial judge, which he coupled with another motion for new trial of
questionable efficacy. Although the affidavit was later offered into evidence in connection with the
plaintiffs’ subsequent motion for rehearing/recusal, at that time, the defendant’s counsel mistakenly
believed the affidavit had already been introduced into evidence. Given the unique circumstances,
it would seem that the defendant’s failure to object to the affidavit should be more easily forgiven
than the plaintiffs’ failure to contemporaneously object to the behavior of the trial judge. Regardless,
the motion to recuse the original trial judge was heard and rejected as was the second and
procedurally questionable motion for a new trial.
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In conclusion, I disagree that a new trial is merited. I reiterate that I found the
plaintiffs’ allegations about the trial court judge, when those allegations were initially
presented, to be troubling. However, based on the lack of a contemporaneous
objection coupled with insufficient evidence inside or outside the trial record to
substantiate the allegations, I respectfully dissent from the majority’s decision to
invalidate the work of the jury by granting a new trial.