You can read the California Supreme Court's entire 144-page (death penalty) opinion if you want, but what I found to be the most interesting -- or at least the most unusual -- part starts on page 120.
It's about penalty phase stuff, and in particular, the victim impact testimony here. Appellate courts grant lower courts huge leeway in this arena, so I'm not surprised in the slightest that the California Supreme Court finds that there was no reversible error.
Nonetheless, I thought the dynamic in the trial court warranted at least mention.
It's a murder case (of course), so at the penalty phase, the prosecution has the murdered victim's seven year old brother testify. That testimony is heart-rendering, as might perhaps be expected. The boy talked about how his brother was in heaven now, how they used to play together, how much he missed him, etc.
What I thought was unusual was how the trial judge reacted. He's a judge, obviously, but he's also human. And he was particularly struck by the little brother's testimony. So much so that, essentially, he started to "nearly" tear up.
As he felt himself doing so, he turned away from the jury so they wouldn't see him. And at the end of the little boy's testimony, the judge was still so verklempt that he didn't even feel like he could excuse the jury himself; he wrote a note and had the clerk do it. Presumably so the jury wouldn't hear his voice potentially break as he did so.
(Here's a snippet of what the trial judge put on the record in that regard: “I will say that during the testimony yesterday afternoon, when that little boy . . . testified and with tears streaming down his face, talking about never seeing his brother again and missing his brother because he wouldn’t be able to play with him again, it did affect me and — however, I was on the verge of having a reaction. In other words, I didn’t have tears in my eyes, but I didn’t want the jury to see me, so I turned so the jury would not see me. But I will say I didn’t trust myself to speak. . . . Not even to say recess, and so that’s why I wrote to my clerk to have — to have her recess the jury and I left because I didn’t want the jury to see me, and — although I didn’t have — in other words, while I wasn’t crying, half the courtroom was crying, I could hear, but it was just one of those situations where, yes, that little boy affected me and I will say this, I have a weakness for small children in distress and it’s the first time that’s ever happened to me in court in almost 22 years, but my main concern was to hide my reaction from the jury. So far as I know, the jury didn’t see anything. Judges are human, too. So I will put this in — make this part of the record.”)
I get it. It's emotional. Even for judges sometimes. No harm in being human. And it seems to me like the judge was totally careful and professional here. No reversible error.
Still. Unusual. This type of stuff doesn't usually get to judges, who are used to hearing some incredibly disturbing (and sad) stuff.
But sometimes it does.
