Now in Legal Rebels:
Posted Feb 18, 2010 02:34 pm CST
A federal appeals court has upheld a defendant’s conviction for possession of child pornography despite the judge’s 6-minute absence during the defense lawyer’s closing argument.
The judge left the bench because it was “his secretary’s afternoon to play canasta and he had to get a couple of letters out,” according to the opinion by the Denver-based 10th U.S. Circuit Court of Appeals (PDF). How Appealing noted the ruling.
As the judge left the bench, he told the lawyers to “go right ahead.” But the lawyers paused until the judge returned. The 10th Circuit said it was error for the judge to leave, but the defendant, Nathaniel Solon, had not shown a reasonable probability that the result would have been different if the judge had stayed.
A federal court in Wyoming heard the case, but the opinion did not identify the judge. Pacer documents (PDF), however, identify him as U.S. District Judge Clarence Brimmer of Cheyenne.
A dissenter said the judge left the bench as the defense lawyer discussed the testimony of a star witness, an expert who said Solon’s computer was infected by a virus and there was no evidence the child porn files were opened or viewed.
The judge had also made previous remarks labeling a portion of the expert’s testimony as “absolutely untrue” and a “falsity,” the dissenter said. The testimony concerned the expert’s assertion that her work had been stopped; the judge countered that rather than stopping the witness, he had merely stopped her from submitting excessive bills to the government.