|Comments: A biased judge can powerfully
influence the outcome of a trial and affect the course of justice.
A results-oriented judge can pretty well assure that a trial produces
the result the judge wants. The New Jersey appellate court which
first reversed the conviction of Kelly Michaels commented on the
judge's biased behavior in that trial. "The judge, in the
televised-view of the jury, played ball with the children, held them
on his lap and knee at times, whispered in their ears and had them do
the same, and encouraged and complimented them. ... The judge
also unduly interfered with defense counsels' cross-examination of the
children and often took charge of the questioning. which in many
instances was overly suggestive. For all appearances, the
State's witnesses became the judge's witnesses. The atmosphere
became such, after this manner of presentation of testimony from 19
children, that a jury considering a verdict in favor of the defendant
might feel that it was personally offending the judge. The
required atmosphere of the bench's impartiality was lost in this
trial." This Michigan case illustrates a scientific method of
reviewing a court transcript to ascertain the level and direction of
the bias revealed by the judge's behavior. This method has been
developed by the staff at IPT.
The assumption is that the attorneys are legally of roughly equal
competence. This is the assumption the Supreme Court has made in
ruling on adequacy of representation. A statistical analysis is
used determine the deviation from expected frequencies of the relevant
behavior. It requires the tabulation of all objections in a
trial, the source of the objection, and the judge's rulings on the
objections. The tabulated results are then subjected to a test
of the statistical significance and the direction of the deviation
from expected values. It produces the same kind of information
which the courts have used in the reasoning to determine cases like
Brown v. Board of Education and many cases involving allegations
of discrimination. It is also used in examining bias in jury
pools and potential police bias in racial profiling.
raised by the prosecution and the defense were tabulated into a 2 x 2
table where the four cells were prosecution objections sustained and
overruled and defense objections sustained and overruled. The
raw count showed an overwhelming number of prosecution objections were
sustained and very few defense objections while defense objections
were overruled. These results were submitted to a Chi-square
statistical analysis. The Chi-square makes it possible to
determine whether an observed frequency is within or departs from
theoretical or empirical expectations. The Chi-square compares
the frequency of occurrence actually observed with the frequency
expected by chance.
X2 = 172, p < .001
The probability of < .001 is that assigned by the tables for a
Chi-square of 10.83 which is the lowest probability contained in the
statistical tables. The Chi-square in this case was 172.
This is an outcome that cannot be a chance result. Unless other
factors can be found to account for it, the results of the analysis
suggest an extreme bias by the trial judge in favor of the state.
In addition to this analysis the trial transcript shows that the judge
was hostile to the defense attorneys and frequently threatened them
with sanctions and contempt citations as well as being highly critical
of them in the presence of the jury. He often criticized them
and their questions, their knowledge of the law, and their demeanor.
Mr. Kaplan was convicted and has been in prison since then.
He still stoutly maintains his innocence but he has exhausted all
possible levels of appeals. The trial transcript also shows the
same factors that have been found by many appellate courts to be a
basis for overturning convictions: repeated leading and suggestive
interrogation by the authorities of young, suggestive children,
development of allegations across time during the process of
interrogation, and highly implausible alleged behaviors.
Type of Error: The level and direction of bias in this case
is such as to show a high likelihood that the judge influenced the
outcome and may be responsible for the conviction of Mr. Kaplan.