Judge Asked Too Many Questions, Requiring New Trial

Constitutional Law

Judge Asked Too Many Questions, Requiring New Trial

Posted Oct 7, 2008, 05:50 pm CST
By Martha Neil

In a rare rebuke to the chief judge in Baltimore, a Maryland appellate court has found that he asked too many questions during a jury trial of an armed robbery case last year, requiring a reversal of the defendant's conviction and a new trial.

The 125 questions that Baltimore City Circuit Judge John Prevas posed to witnesses violated the constitutional right of defendant Antwan Derrell Smith to a fair trial, the Court of Special Appeals held. Although it did not question the judge's motives, the three-judge panel found that the questioning created an appearance of partiality, noting that the questioning was “acutely suggestive, coercive and manipulative," according to the Daily Record.

Smith was represented on a pro bono basis by Paul Solomon, an associate at Skadden Arps Slate Meagher & Flom for whom the appellate victory came in the first case he ever argued before the court. His 25-year-old client, who is serving a 30-year prison term at the Maryland Correctional Institution in Hagerstown, couldn't be reached for comment.

The judge and the lawyer for the state didn't respond to the Daily Record's requests for comment.

Updated at 6:50 a.m. Friday to add more detail from the opinion and correctly note that the issue was the "appearance of partiality."

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Posted by That Lawyer Dude - 1 month, 1 week, 6 days, 23 hours, 27 minutes ago

Reminds me of the old story where the lawyer says to the judge “Your honor, if you’re going to try my case for me, do you mind not losing it…“
Posted by Andrew Paterson - 1 month, 1 week, 6 days, 9 hours, 27 minutes ago

This seems to be a distinct difference between American and the English system. I sat in at Old Baily on a visit and heard the Judge make numerous comments - even including the credibility of the witness- in a statutory rape case. I agree with the prior post but sometimes doesn’t it seem appropriate for the Court to ask a question or comment on the proceeding?
Posted by Joan Meyler - 1 month, 1 week, 4 days, 16 hours, 46 minutes ago

Yikes! What’s wrong with “an appearance of impartiality”?
Posted by Ellen Barshevsky - 1 month, 1 week, 4 days, 14 hours, 28 minutes ago

Joan is RIGHT. That is EXACTELY what I said to myself.

My law school teacher said that a judge is SUPPOSED to be impartial. He is NOT supposed to be prejuded, or show he is favoring one side or the other side.

I think there is a BIG mistake, and mabye the judges made a mistake. That is very WRONG. Or mabye the mistake is in the article.

I THINK a JUDGE has to ask alot of questions so he can make a good decision. Also, I know that it can be BOREING sitting up on the stage wearing a robe.

At least judges here don’t have to wear those smelly wigs, like in London. I told my boyfriend I would only go to a Haloween party with him if he dressed up like a London judge. But he said could NOT find one of those silly wigs.
Posted by JME - 1 month, 1 week, 4 days, 13 hours, 52 minutes ago

I am beginning to think I read these only for Ellen’s comments. I love her typos, her EXCITEMENT, her thought process. I imagine this short, fat, blonde thing, sort of like that one toady professor at Hogwarts who was into punishing Harry Potter for whatever slight she could imagine. I can’t remember which movie it was, though, the 3rd or 4th, I think. Maybe I’m wrong. Still, that is the image I have of her. Kinda fun.
Posted by Bill - 1 month, 1 week, 4 days, 13 hours, 33 minutes ago

Is Ellen B a real person or a charicature? I’m beginning to wonder. It’s like a bad Saturday Night Live skit.
Posted by JJH - 1 month, 1 week, 4 days, 13 hours, 29 minutes ago

The Daily record says the concern was an appearance of PARTIALITY, which actually makes sense.
Posted by Molly McDonough - 1 month, 1 week, 4 days, 13 hours, 16 minutes ago

Thanks Joan and JJH. The post has been corrected.
Posted by Dan - 1 month, 1 week, 4 days, 12 hours, 43 minutes ago

JME - Nah, I picture her more as one of those law school/sex and the city types who’s like a 5 everywhere else but of course that translates into an 8 in law school, so now she’s out in the real world thinking she’s a 8 or 9 when she’s actually gotten older and is now only a 4 or so…

But you’re right, it is fun to imagine. This is the only place her name turns up in google, so it’s probably a pseudonym.
Posted by deebs - 1 month, 1 week, 4 days, 12 hours, 37 minutes ago

Ellen and her boyfriend should go find a new forum to spew their stupidity - albeit, it is generally entertaining. And good luck finding one of those wigs and robes for Halloween - huh? Who cares!!
Posted by Willem DeDonis - 1 month, 1 week, 4 days, 12 hours, 36 minutes ago

Agree somewhat with Dan. In law school, women who are maybe average in the real world become goddesses. The image is perpetuated when they are admitted to the bar, as good looking women are hard to find in law firms.

Then, when they make money, they spend money on accessories and make up so they look better. Men who work in the law do not see much of the real women, so they too believe what they see is the best they can get.

I envision this Ellen as like the lawyer on the Sex in the City. Small, somewhat attractive and outspoken. Not someone to spend a lifetime with.
Posted by getalife - 1 month, 1 week, 4 days, 12 hours, 20 minutes ago

What a bunch of neanderthals! Apparently a law degree gives men license to manufacture evidence based on nothing more than juvenile speculation.
Posted by Diamond Jim - 1 month, 1 week, 4 days, 12 hours, 15 minutes ago

I think Ellen works as a cleaning lady at a large law firm.Someone accidentally left a computer on set to the ABA site and now we have the dumpy janitorial perspective. Come on Ellen get back to work, Those urinal cakes need to be changed..pronto.
Posted by Level 70 Litigator - 1 month, 1 week, 4 days, 11 hours, 44 minutes ago

Ellen Barshevsky is the only commenter whose posts I will actively hunt down. I’ve spent enough time on the intarwebs to recognize a troll when I see one. With a troll, you really have only two options: A) Don’t feed it, or B) Enjoy the ride.

Keep trollin’, EB.
Posted by Matt - 1 month, 1 week, 4 days, 11 hours, 33 minutes ago

I have got to assume that Ellen is a satirical construct. No one is that obviously dim witted and inane.
Posted by Wait what - 1 month, 1 week, 4 days, 10 hours, 58 minutes ago

#13: For the Horde. :-D
Posted by Brian - 1 month, 1 week, 4 days, 10 hours, 53 minutes ago

Hey Ellen, the U.K. has decided to eliminate wigs in civil court so all you need to do is contact Rumpole of the Bailey and he’ll probably get you a good deal for your bf.

I follow the British shows, several of which involve courtroom scenes and since moving to Canada have observed the Canadian system. At first my mouth dropped at the activism of the judges in trials but now that my American sensitivities have been neutralized I can see the other side of the arguement about judicial activism in trials and now wonder if the US system should revisit the question.
Posted by I fell for it, too - 1 month, 1 week, 4 days, 10 hours, 51 minutes ago

14, you’re right - “she” has been doing this so long, she has to keep gaming the posts and vomiting more ridiculous things so she can achieve the bigger thrill of f***‘g with lawyers.
Posted by jmkp - 1 month, 1 week, 4 days, 10 hours, 34 minutes ago

Maybe the ABA Journal should do an article on Ellen and all of the postings surrounding her…
Posted by Joan Meyler - 1 month, 1 week, 4 days, 10 hours, 22 minutes ago

Yikes! So many sexist, elitist responses!
Posted by Longtime Post Reader - 1 month, 1 week, 4 days, 10 hours, 15 minutes ago

Ellen as “she” calls herself now is not a she. She is actually a he. If you have been reading posts for awhile, he has used several pseudonyms. One of many was vulgar - which he stopped using once people figured out what it actually meant. I can only assume the ABA forced him to stop using the name after all of the complaints. The only reason he posts is to spark comment. I can’t believe anyone that actually could pass a bar exam would fall for such poor writing, obvious misstatments, and plain stupidity.
Posted by R - 1 month, 1 week, 4 days, 7 hours, 39 minutes ago

Anyone who wonders who “Ellen” is: google “Lazlo Toth” and “Don Novello.“ I have no doubt “she” is one of those.

It’s a relatively harmless diversion but is growing rather tiresome over time.
Posted by Where are the good-looking lawyers? - 1 month, 1 week, 4 days, 6 hours, 43 minutes ago

#11, Willem DeDonis—The assertion goes both ways. Substitute the word “women” for “men” and you will have the complaint of countless female law students and lawyers - there simply are NO good-looking guys in the realm of law! It was the running joke with my fellow female classmates and associates. Many male lawyers usually compensate for lack of good looks with an above-average ego size and arrogance.
Posted by I Know Ellen Barshevsky - 1 month, 1 week, 4 days, 6 hours, 15 minutes ago

I know Ellen Barshevsky, HE is a GUY that I work with. He likes to anger people with his stupid postings instead of getting his work done. Pay no attention and do not respond or he will keep doing it.
Posted by Ted McGinley - 1 month, 1 week, 4 days, 6 hours, 12 minutes ago

in the words of my hero - Ric Flair - to be the best, you have to beat the best!!!!!!! - ELLEN is the best poster in this posting party and her posts always make me smile to myself on the inside. Ellen, please never stop, keep following your dreams, keep posting, never, never, never stop. We need you ELLEN, you are our hero… you are our only hope. without you life would be meaningless. FREE TIBET!
Posted by Pacific Time - 1 month, 1 week, 4 days, 5 hours, 24 minutes ago

Ellen - What time zone are you in? How do you always manage to be one of the first to post? Or are you one of those lucky types who only need 3-4 hours of sleep a night and wake up at 4am every day?
Posted by VJE - 1 month, 1 week, 3 days, 8 hours, 7 minutes ago

Google says Ellen Barshevsky graduated high school in 1998. That would mean she graduated law school in 2005, which means she has only been practicing, for at most, 3 years.
Posted by At Tidom - 1 month, 1 week, 3 days, 2 hours, 52 minutes ago

Yes, another case of a loudmouth judge. When will they learn to shut up and let the plaintiff make out the prima facie case? If not, then the judge can dismiss the caes, go home early and call it a day.

Will someone tell this yutz that he is working too hard to be a civil servant? Oy vey!
Posted by Eliyahu - 1 month, 1 week, 1 day, 8 hours, 35 minutes ago

While I agree that there are some good points to the British system in which judges participate more actively in the questioning of witnesses, it’s still not permitted here and for that reason it’s inappropriate for a judge to do so.

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