CHARLESTON – Circuit Judge Richard Facemire biased Clay County jurors against a defendant by acting like a prosecutor, the West Virginia Supreme Court of Appeals unanimously ruled May 15.
The Justices ordered a new trial for Gerald Thompson Jr. In 2005, jurors convicted him of operating a clandestine drug laboratory.
At trial, Facemire asked witnesses about 180 questions.
That alone raised a red flag for the Justices, for a judge at trial should question witnesses sparingly and only for clarity.
Still, the frequency of Facemire's questions did not upset the Justices as deeply as the attitude he betrayed.
To rebuke him for acting as prosecutor, however, the Justices had to act as defense attorneys.
They found that Thompson's attorney, Jerome Novobilski of Clay, did not effectively challenge Facemire's conduct at trial or on appeal.
Novobilski sent the Court only two examples of Facemire's behavior toward witnesses.
The Justices finished his job, loading a 17 page opinion with examples.
They found that after testimony from the first witness, state police trooper Richard Stevenson, Facemire kept him on the stand with 83 questions.
Facemire asked him if Lieutenant Michael Goff had training on handling hazardous waste and "meth labs like this." Stevenson said yes.
Facemire said, "I note that you said Lieutenant Goff destroyed the methamphetamine other than some samples. Is that right?"
Stevenson said, "Yeah, he destroyed all this liquid stuff contained within the Mason jars and such."
Facemire said, "Lieutenant Goff took up this meth and gave you samples. Did he give them directly to you?" Stevenson said yes.
Facemire said, "I note that you say that the meth lab was not active at the time you responded to the scene. Is that correct?" Stevenson said yes.
Goff testified next. Facemire asked him 20 questions.
Facemire said, "I assume those recipes aren't for making a cake?"
Goff said, "Not a cake I'd want to eat."
Facemire said, "So those recipes are consistent for making what?"
Goff said methamphetamine.
Facemire said, "Anybody that possessed that wouldn't have any other reason to possess it?"
Goff said he knew of no other reason.
Kermit Sanford, Thompson's father in law, testified first for the defense.
Facemire kept him on the stand and said, "You don't want to see anything bad happen to Mr. Thompson?" Sanford said no.
Facemire said, "Likewise, you don't want to see anything bad happen to your daughter?" Sanford said no.
Facemire asked what he saw in photographs of Thompson's residence. Sanford said he had never seen those items.
Facemire said, "Under penalty of perjury and false swearing, you are telling –"
Sanford said, "I'm telling the truth. I'll take a polygraph, sir."
Facemire said, "I'm the one talking here, sir, not you."
Thompson's mother, Jesse Thompson, testified next. She described a fight between her son and his wife that led to gunshots and a 911 call.
Facemire asked what the fight was about. Jesse Thompson said, "They didn't have to have anything to get in a fight over."
Facemire said, "You want this jury to believe that they just like to fight and it wasn't anything they were fighting over that day?"
Jesse Thompson said, "He was telling her to leave and she was crying. She didn't want to leave. And then she was gonna leave and he told her not to leave so that's all I know it was about."
Facemire asked if she saw her son shoot. She said, "After I got outside. He shot maybe once before I got outside. Then he shot a couple of times after."
Facemire said, "Well, which was it? You're telling this jury first now that you were inside when he shot and so you didn't see him shoot. Now you're saying –"
She said, "No, I said –"
He said, "other –"
She said, "Okay, pardon?"
He said, "No, no. I'm talking right now."
She said, "Okay, you talk to me. You tell me."
He said, "You see, there's a procedure here. I get to ask the questions. You get to answer them, okay?" She said okay.
Facemire asked the defendant's wife, Kristin Thompson, 13 questions. The Justices did not pass along any of that dialogue.
Gerald Thompson Jr. testified last. He said police threatened him.
After cross examination, Facemire asked him if he told the magistrate that police threatened him.
Thompson said, "No sir, I was scared to."
Facemire asked if he mentioned it at circuit court hearings.
Thompson said, "No sir, I was scared and I'm scared now. I don't know what's gonna happen when I get out of here, if I do."
Facemire said, "You would agree, you would have more to lose in this case than the troopers do?" Thompson said yes.
After jurors convicted Thompson, Novobilski appealed. He and assistant attorney general Robert Goldberg argued before the Justices Feb. 27.
Starcher's opinion in Thompson's favor quoted from West Virginia Rules of Evidence that, "…in jury trials the court's interrogation shall be impartial so as not to prejudice the parties."
Starcher quoted a Supreme Court of Appeals opinion that, "A judge may ask questions for the purpose of clearing up points that seem obscure, and supplying omissions which the interest of justice demands, but it is not proper that he conduct an extended examination of any witness."
He quoted a 1907 Georgia decision that, "It is almost an intellectual impossibility for a judge to engage in an examination of a witness on vital questions of the case on trial without in some manner and to some extent indicating his own opinion."
The Georgia court noted that, "Every practitioner knows how eagerly alert jurors are to every utterance from the bench, and how sensitive is the mind of the juror to the slightest judicial expression."
Starcher wrote, "…the nature of the questions, especially when coupled with the questioning of trooper Stevenson, suggested to the jury that the trial judge had assumed the role of the prosecuting attorney."
He wrote, "…the language chosen by the judge often seemed to be an attempt to demean the credibility of those witnesses."
He wrote that Facemire "betrayed to the jury that the judge had formed a negative opinion of the appellant and that the judge did not believe the defendant's testimony…"
He wrote, "Therefore, we find that the judge in this case abandoned his role of impartiality and neutrality..."
He wrote that it was not necessary to pry into Facemire's mind or speculate to his motives.
He wrote, "We need only to view the judge's conduct from the perspective of the members of the jury."