When the umpire joins the game

THE witness was halfway through a second day of testimony, impervious to the young defense counsel's vigorous cross-examination. As far as the judge could tell, the lawyer's frustration came not so much from the inherent strength of the evidence as from his inability to exploit an opening. Suddenly the witness seemed to drop his guard. During direct examination the day before he had said that when he first noticed the defendant, outside the bank, the man had been leaving the driver's side of the car the bank robbers used a few minutes later for their getaway.

Now, answering an unrelated question, he had plainly put the defendant on the sidewalk, walking in the direction of the bank. Properly emphasized, the discrepancy could, at a minimum, cause the jury to discredit both the witness's ability to observe accurately and the value of his memory. Indeed, a lawyer of average skills might even convert it into the kind of reasonable doubt that prevents a guilty verdict.

Troubled by the lawyer's apparent insensitivity to the advantage the witness had handed him, the judge also anguished silently over his own inability to assess the situation. Had the worth of the nugget completely escaped the lawyer? Or was he planning to use it later in his closing argument when the witness could not ``explain''? Experienced advocates might play it either way.

Beyond that, the judge wondered whether, as an umpire merely calling balls and strikes, he ought to get into the game at all. ``For goodness' sake, your honor,'' a lawyer once said to an overquestioning judge, ``I don't mind your winning the case for me. But please don't lose it.'' Another old-timer was more blunt: ``If the court's inquiring on my opponent's behalf, I object. If the question's for me, I don't want it.''

In short, a judge rushing to the rescue can frequently only make a good situation bad, and a bad one hopeless. Even if his forensic skills are sound and his instincts true, is it proper for the arbiter to lend his intellectual and moral weight to one side?

Some people think that judges do this all the time, either silently, through body language; or vocally, through the tone and content of the charge (what cynics call ``the final argument'').

The judicial thumb can slide onto the scale in more subtle ways. Often, in the heat of trial, a lawyer objects to evidence viscerally, without knowing the precise rule on which he relies. ``State your ground,'' says the judge. ``Hearsay,'' the lawyer answers. If the evidence is not hearsay, but is nonetheless excludable on another ground, one that the harried lawyer has not articulated, a judge who wants the other side to have the benefit of the evidence can ensure admission by suavely replying: ``On that ground, the objection is overruled.''

Similarly, if the judge thinks the evidence should stay out, he does not ask the objector for a reason. Instead, he merely says ``sustained.'' If the other side is not quick enough to point out the alternative, the judge's ruling will withstand appeal.

A colleague was trying a murder case in which the pivotal issue was identification. Although the defendant's name was Arthur Jones, several witnesses indicated that his companions had called him ``Leon.'' The prosecutor had not explained the discrepancy, nor had defense counsel emphasized it. But the judge began his jury charge by saying, ``The government accuses -- '' at which point he looked at the formal indictment and read aloud: ``Arthur Leon Jones.'' The rest of the instructions were routine, and the jury returned a guilty verdict.

Did that judge unfairly tip the balance? Or did he make certain that the jury had before it everything necessary for a fully considered result? If a judge helps defense counsel emphasize the inconsistency of damaging evidence, is he assisting a miscreant to avoid punishment? Or is he discharging a duty to ensure fairness?

An umpire must stay behind the plate. Can a judge occasionally go to bat for justice?

Hiller B. Zobel sits on the Massachusetts Superior Court.

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