Photo by Bill Oxford on Unsplash
Chloe Knue, Blog Editor, University of Cincinnati Law Review
I. Introduction
Courtrooms, by design, are formal places. They are adorned with wood-paneling, rich colors, and the official state or federal seal. The setting is intended to convey the seriousness of the matters at stake. People go to court to resolve life-changing issues, like disputes over large sums of money. Some disputes can even result in a person’s physical imprisonment. And one individual is responsible for leading these formal proceedings—the judge. Thus, judges are bound by their respective state’s Code of Judicial Conduct. These codes demand that judges act with and maintain strict professionalism.
A trial judge in Colorado had an interesting take on what it means to be a professional.[1] Not only did Judge Thomas Ensor allow his wife to sit on a jury that returned a criminal conviction, but he repeatedly joked about his connection to the juror.[2] He said things like, “‘Be nice to Juror 25. My dinner is on the line;’” “‘You forced her to spend more time with me;’” and “‘I’m getting chicken again? Oh God.’”[3] But the Colorado Supreme Court let these comments, and several others, slide when it upheld the conviction this past June.[4]
II. Background
In Richardson v. People, the defendant, Gary Val Richardson, faced a slew of criminal charges.[5] He allegedly fired one or two shots at police officers while in possession of a controlled susbtance.[6] On top of that, he was a repeat offender.[7] The jury found him guilty of several crimes, including attempted second degree assault.[8] Judge Ensor sentenced him to 16 years in prison.[9] Mr. Richardson appealed his conviction all the way to the Colorado Supreme Court.[10] But unfortunately, that appeal had nothing to do with the merits of the case.[11] The defense impliedly called into question the judge’s professionalism.[12] And the record speaks for itself.[13]
It all starting during voir dire.[14] Juror 25 indicated on her juror questionnaire that she was married to the judge.[15] Outside the presence of the prospective jurors, Judge Ensor told the prosecution and the defense to “‘[b]e nice to Juror 25.’”[16] Apparently, both attorneys took that advice seriously—neither moved to strike Juror 25.[17] Thereafter, the record reflects the following conversation:
[DEFENSE COUNSEL]: I think we’re both afraid to challenge her.
[THE COURT]: That wasn’t a stupid idea. Thank you. I appreciate it.[18]
From then on, the judge’s relationship to Juror 25 was a source of comic relief.[19] Judge Ensor joked about what he and his wife were having for dinner, the fact that “[he] said no to [his] wife[,]” and that his wife was forced to spend time with him.[20] The Colorado Supreme Court reviewed the record and released two opinions on June 1st.[21]
The majority and the dissent analyzed the issues differently.[22] The majority asked three main questions: “[1] whether [Mr.] Richardson waived his challenge to Juror 25 . . . [2] whether the trial judge had a duty to sua sponte excuse Juror 25 or [3] recuse himself from the trial.”[23] The majority answered all three questions in favor of the People.[24] It pointed out that the defense had an opportunity during voir dire to object to Juror 25 but failed to do so.[25] It also noted “‘a trial judge is not required to excuse a prospective juror sua sponte.’”[26] In addition, the majority explained that “neither a statute nor the [Colorado] Code [of Judicial Conduct] expressly requires a judge to sua sponte disqualify himself when he is related to a juror.”[27]
The dissent, on the other hand, employed a two-prong analysis.[28] First, it asked whether there was an error.[29] It named several but mainly pointed to a judge’s duty to “‘avoid impropriety and the appearance of impropriety.’”[30] Second, the dissent asked whether this was a structural error.[31] A structural error is something that would “taint” the whole trial.[32] The dissent answered that question in the affirmative; the prejudicial effect was beyond measure.[33] Thus, the dissent would have reversed and remanded the case.[34]
This case presents some interesting issues. As a result, it was covered by various news outlets, including the American Bar Association.[35] Part III will weigh in on the unconventional conversation surrounding this case.
III. Discussion
Judge Ensor should have removed his wife from the jury sua sponte. This position can be broken down into two subpoints: (1) a judge’s duty to conduct him or herself as a professional; and (2) the intent behind the Judicial Code of Conduct. These two points will be addressed in that order.
It is important that all members of the workforce carry themselves in a professional manner. This is the only way to earn respect. And people will take the things you say more seriously. But this point is particularly important for judges. Judges serve on the bench as government representatives; they are lawyers who have attained a prestigious role. For those reasons, judges have a heightened duty to carry themselves as professionals and conduct their courtroom in a professional manner. When members of the public go to court, it is never a joyous occasion. There is time, money, and—most significantly—liberty on the line. A judge should never be making jokes on what is potentially the worst day of a person’s life. Mr. Richardson received a sentence of over a decade in prison. When you lose in court, it can be earth-shattering. But what makes that loss even more devastating is walking out feeling like you did not get a fair shake. Every state and federal judge has a responsibility to legitimize the American court system. Each time Judge Ensor joked about having chicken for dinner or saying no to his wife, he set the perception of the American court system back. He failed as a leader and as a dignified arbitrator. And that is unacceptable. Whether a judge is presiding over a murder trial or a trial for attempted second degree assault, he or she should take it seriously and be a professional.
True enough, there is no explicit duty in the Colorado Judicial Code of Conduct to remove your spouse from the jury. But as the dissent pointed out, there is an overarching duty to avoid the appearance of impropriety, which is a critical responsibility. The entire court system hinges upon one principle—fairness. If that comes into question, the court system’s integrity could fall apart. That is why this decision should not come down to a mere technicality. No, the Judicial Code of Conduct does not instruct judges, verbatim, to remove their spouses. But the drafters of the Code should not be forced to sit down and think of every possible way that unfairness could creep into a criminal trial. Judges are smart people. They are leaders, scholars, and problem-solvers. They know—hopefully—right from wrong. They should be able to reflect upon the overarching purpose of their state’s Judicial Code of Conduct and make an ethical decision. Judge Ensor should have asked himself: How will it look to have my wife deliver the verdict? And, before making jokes about the circumstances, he should have asked himself: Will this undermine public confidence in my sentencing? And if there was any doubt, Judge Ensor should have instructed the attorneys to find a new Juror 25. There were literally thousands of other people who could have fulfilled the role.
IV. Conclusion
Legitimate legal arguments can be made on both sides of this case. The majority argued that Judge Ensor could have carried himself in a more professional manner, but his jokes probably did not influence the outcome of the trial.[36] The dissent disagreed, feeling strongly about the duty to avoid the appearance of impropriety. But at this point, it is necessary to hit pause and ask: Is a legal analysis really necessary here? Or could a person arrive at the correct conclusion by relying on a much simpler skill—say, common sense?[37] The question is: Should you bring your spouse with you to work? No. That single question could end the inquiry.
[1] Richardson v. People, 2020 CO 46, 2020 WL 2829847, *1 (Colo. 2020).
[2] Id. at *2.
[3] Id. at *2-*3, *6.
[4] Id. at *2, *19.
[5] Id. at *2-*3.
[6] Richardson at *2-*3
[7] Id. at *3; *2 (Gabriel, J., dissenting) (referring to Mr. Richardson as “a habitual criminal”).
[8] Id. at *6-*7 (“The jury ultimately found [Mr.] Richardson guilty of two counts of attempted second degree assault, three counts of attempted third degree assault (as lesser included offenses), one count of violation of bail bond conditions, and one count of possession of a controlled substance.”).
[9] Id. at *7.
[10] Id. at *7-*8 (citing n. 1).
[11] Richardson at *7-8 (The Colorado Supreme Court summarized the argument made at the appellate level as follows: “[Mr.] Richardson appealed, contending among other things that Juror 25’s participation on the jury violated his constitutional right to a fair trial before an impartial jury and was therefore structural error mandating reversal.”).
[12] Id.
[13] Id. at *2-*6.
[14] Id. at *3.
[15] Id.
[16] Richardson at *3.
[17] Id. at *4-*5.
[18] Id. at *5.
[19] Id. at *5-*6.
[20] Id.
[21] Richardson at *8 (citing n. 1).
[22] Id. at *2-*19; *1-*13 (Gabriel, J., dissenting).
[23] Id. at *8.
[24] Id.
[25] Id. at *10 (“Crim. P. 24(b)(2) instructs that ‘[a]ll matters pertaining to the qualifications and competency of . . . prospective jurors shall be deemed waived by the parties if not raised prior to the swearing in of the jury to try the case.’”) (citing Section 13-71-140, C.R.S. (2019); *11 (“The trial judge even seemed to invite defense counsel to exercise a peremptory challenge to Juror 25 when he stated, ‘[Juror 25]? We have the defendant’s fifth peremptory challenge . . . . I need you to make the call.’ Defense counsel responded by excusing a different juror. Thus, Richardson, through counsel, intentionally relinquished his right to challenge Juror 25.”) (citing n. 2).
[26] Richardson at *14 (People v. Abu-Nantambu-El, 454 P.3d 1044, 1052 (Colo. 2019)) (citing People v. Coney, 98 P.3d 930, 934 (Colo. App. 2004)).
[27] Id. at *17.
[28] Id. at *4-*5 (Gabriel, J., dissenting) (citing Hagos v. People, 288 P.3d 116, 118-19 (Colo. 2012).
[29] Id. at *7 (Gabriel, J., dissenting).
[30] Id. (Gabriel, J., dissenting) (citing Colorado Code of Judicial Conduct 1.12) (emphasis added).
[31] Richardson at *11 (Gabriel, J., dissenting).
[32] Id. (Gabriel, J., dissenting).
[33] Id. at *6 (Gabriel, J., dissenting) (“An error is also structural when ‘the effects of the error are simply too hard to measure,’ as, for example, when a defendant is denied the right to select his or her own attorney.”) (quoting Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991); *12 (“Because these facts defy any showing of prejudice, I would conclude that the errors here were structural.”) (citing Weaver v. Massachusetts, 137 S. Ct. at 1907-08).
[34] Id. at *1, *13 (Gabriel, J., dissenting).
[35] Debra Cassens Weiss, http://www.abajournal.com/news/article/man-convicted-by-jury-that-included-judges-wife-isnt-entitled-to-new-trial-top-state-court-says, ABA Journal (June 4, 2020) (This article notes that Judge Ensor is now retired).
[36] Richardson at *2 (“While the trial judge could have handled this unusual situation in a more restrained manner, his failure to do so did not create a reversible error.”)
[37] Id. at *12 (Gabriel, J., dissenting) (Justice Gabriel refers to this as “the intuitive result[.]”).
