and 'judicial misconduct'- often in most insulting language.'
And I say this was done here time and time again.
'Those occasions on which the defendants rely to show his intemperate hostility, so far as the record preserves what happened, are completely unconvincing. At times, it is true, he rebuked the attorneys; at times he used language short of requisite judicial gravity; at times he warned them that if they persisted in conducting themselves as they had been doing, he would punish them when the trial was over. (An entirely proper action, for to commit them pending the trial would have broken it up and to be silent might well have misled them.) These cautions they answered most unwarrantable, as threats to prevent the discharge of their duties.'
And again Judge Learned Hand states:
'Justice can be as readily destroyed by the flaccidity of the judge as by his tyranny; impartial trials need a firm hand as much as a constant determination to give each one his due. The record discloses a judge, sorely tried for many months of turmoil, constantly provoked by useless bickering, exposed to offensive slights and insults, harried with interminable repetition, who, if at times he did not conduct himself with the imperturbability of a Rhadamanthus, showed considerable greater self-control and forbearance than it is given to most judges to possess.'
In order that the jury might not be prejudiced by the misconduct of defense counsel, and necessary rebukes that the Court was forced to administer to him. the Court stated on numerous occasions that the only issue the jury would have determine was whether the defendant was guilty of the charges on which he was being tried. In its instructions to the jury the Court emphatically stated that the only question for them to consider is the guilt of innocence of the defendant; that many extraneous matters had crept into the trial; that the jury must disregard them and concentrate their attention on the one question presented to them for determination.
I think the jury followed this admonition, as appears from the fact that the jury found the defendant guilty on one count and not guilty on the other, thereby displaying a keen discernment and an impartiality. On the first count there was corroboration of the victim's testimony. On the second count there was very little corroboration. Surely it cannot be said that the jury was influenced by any unpleasant incidents that occurred at the trial, but if it had been so affected that result would have been due entirely to the actions of defense counsel.
The Court is of the opinion that the verdict as to the first count is fully sustained by the evidence, and that there is no reason justifying a new trial.
Motion for a new trial is denied.
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