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U.S. v. Newhoff (9th Cir. - Dec. 16, 2010)

By Shaun Martin

Judges don't have to be unnecessarily harsh.  Or even harsh at all.  Here's a case in point.  In which Judge Kleinfeld says:

"As for whether the error of reading back Officer Cochran?s testimony without an admonition was plain, we conclude that it was. We need not explore the reasons why, because the district judge expressly decided that he should give the admonition against undue emphasis. His exercise of discretion to give the admonition was sound. The only explanation we can see on this record for not giving the admonition was that the judge forgot. That is an easy thing to do in a trial. And it is a reason why judges do, and this judge did, ask counsel for objections. They are called ?counsel,? in part, because they counsel the court. It is incumbent on defense counsel to protect his client and the court from judicial error, including forgetting something, and incumbent on the prosecutor to protect the court from error, even where the error might, at least before appeal and possible reversal, benefit the prosecution. The only explanation for why both attorneys said they had no objection to failure to give the admonition is that they too forgot, again an easy thing to do in a trial. But error it was."

Pretty nice way of saying it.  Guess it's the holiday spirit, eh?

Full post as published by California Appellate Report on December 23, 2010 (boomark / email).