Mediation Message No. 107



As an arbitrator and former judge, I believe trial lawyers want to know what we’re thinking and that we should not “hide the ball” from them. But, when answering questions or thinking out loud, judges must be careful because an erroneous statement about the law can led to a reversal. Which is what happened in People v. Carter (2014) 227 Cal.App.4th 322. In that matter, a jury convicted Carter of burglary and theft but, at sentencing, the trial judge said he had doubts about the evidence and would have acquitted Carter in a court trial. After sentencing was continued, Carter predictably brought a new trial motion. At the second sentencing session, the judge denied the new trial motion because “It was a trial by jury, and there was sufficient evidence presented if the jurors believed it to convict Mr. Carter of this crime … . I would have weighed the evidence differently … , but there was certainly sufficient, in fact more than sufficient, evidence for the jurors to reach the decision they did … . They just saw the case differently than the Court … .” Then, while still expressing doubts about Carter’s guilt, the judge sentenced him to prison.

In vacating the order denying the motion for new trial and ordering a new trial, the appellate court in Carter found that the trial judge’s remarks “reflect a misapprehension of the law upon which that ruling is based.” (At p. 328.) On the other hand, error does not occur where a judge’s “remarks may suggest one result, yet the judge arrives at the opposite result.” (Id.) In Carter, the judge erred in not finding that the jury’s verdict was contrary to the evidence when he was not convinced that the charges had been proved beyond a reasonable doubt. (At p. 327.) “The presumption that the verdict is correct … does not affect the court’s duty to apply its independent determination to the probative value of the evidence.” (At p. 328.) Thus, a “court abuses its discretion … where it misconceives its duty, applies an incorrect legal standard, or fails to independently consider the weight of the evidence.” (Id.)

MDM’s observation: Carter teaches two lessons – don’t be afraid to ask questions of the trial court because the judge’s comments can both guide you and be the basis for reversal if they are legally incorrect. Also, those comments will be forever lost if a court reporter is not present.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, February 2015

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