Private interviews by judge? No

The article last Sunday about Circuit Judge Joe Baker interviewing his son-in-law and a computer-consultant friend to help him decide whether to reduce a $2 million jury verdict against Disney Vacation Club Management Corp. to $1,000 misses the point.

The issue is not whether the “judiciary is prohibited from informing itself,” as Judge Baker states.

Nor is the issue whether “judges are supposed to make decisions based solely on the information that lawyers provide during the case,” as the article stated.

Rather, the issue is whether a litigant’s constitutional right to due process of law should be repealed in favor of private interviews by the judge.

When a jury, after hearing all the evidence, returns a verdict in the amount of $2 million and the judge reduces the verdict to $l,000 based on private interviews outside the courtroom, that is denial of the plaintiff’s right to a jury trial, secured by Article 7 of the Bill of Rights.

When a judge leaves the courtroom and takes unsworn testimony from his son-in-law and computer-consultant friend and uses that out-of-court evidence as a basis for his decision, the litigants are denied a public trial, and the right to confront and cross-examine witnesses.

The jury system contemplates parties for both sides of a dispute presenting evidence in a public forum where the parties can see, hear and test it. The jurors are instructed to base a verdict on the evidence and not discuss the case with anyone – including his or her spouse – or read or listen to news reports. When a judge goes behind the scene in private and gathers evidence, he is violating the very instruction he gives to the jury.

Imagine a jury verdict in a criminal case being set aside by the judge on the basis of his private investigation that the live witnesses who testified at trial were all wrong. If Judge Baker is convicted of violating judicial ethics in his upcoming public trial, it would be an irony indeed if, after Baker has hired a lawyer to confront and cross-examine witnesses, the decision was based on private interviews outside the courtroom. I have a feeling that his lawyer would appeal and win a reversal as Judge Baker was reversed when he did private interviews.

There is no need for a jurist to conduct a private investigation to supplement “information that lawyers provide during the case.”

Under both the civil and criminal rules of procedure, the judge has the power to summon experts as court witnesses to educate the court. In addition, the judge may participate in the questioning of the witnesses actually called by the lawyers for further elaboration.

Conducting private discussions with people outside the trial setting and using that as a basis for the ultimate outcome is an abnegation of the major tenets of constitutional due process of law.

My Word
By Russell Troutman
The Orlando Sentinel
Sun. February 11, 2001

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