filthy and i represent charles jackson in this matter a judge has the discretion to question the witness to elicit the truth or to bring in light men to material issues which seem of scare as long as he does so in a fair and impartial manner here the judge took over the proceedings and crossed the line assuming the role prosecutor when he took it upon and you know he he took over he acted as a presser it wasn't just clarify some of the questions indeed work clarification questions but many many of the questions here want i mean some of the questions   judge goes about asking these questions i mean the judge you really need to consider the record as a whole to really get a feel for what the judge did in this case but also the timing of these questions is very important the questions beg early on during direct examination when the judge does not yet know what the witness is going to testify to and doesn't know yet how this testimony is going to be developed the judge when the judge interrupts during direct examination it can't be said that he's attempting to bring in alignment to obscure mental illness they are given proactively for people in incarcerated circumstances the judge's comments there show personal knowledge there is no evidence at all in trial that psychotropic medications are given proactively some mac the problem this is that we just don't know whether the judges knowledge is correct or not says untested by cross examination we just don't know if it's reliable another problem is that the judge isn't always right and one point the trial judge just about a week after the shooting he was put on anti psychotic medications i mean the judge of talking about this brain damage and he's saying that no and he's also talking about jackson's mental status immediately after some and one of the things he's talking about is that jackson immediately has prescribe illness they're given proactively for people incarcerated circumstances he's dismissing the but that this is psychotropic medication this isn't just some sort of proactive medication it's given at some act which suggests that there's someone at sarma that says prescribed anti psychotic medication right away the judge kind of not sound the judge also does this with the evidence of i q the other the most significant from can evidence of brain damage is this i q evidence from ken provides misrepresented in the circumstances of the testimony that i hear from the witness stand in this building and when there's a divergence like this i personally view this as being more predicated on factors relating highly individual reacts to t heartburn or to look into whether there was a brain damage the reason is justin was not born with low mental ability he was in gifted programs in high school he was even called a nerd growing up in school he received a two year associate of arts degree from a junior college believe dr frankenstein degree but regardless the fact is at this point dr franken is saying that jackson's i q scores are placing him in the lowest seventh percentile of the population so this is a big change from even though to start your phone can testify is that not all brain jam it shows up on scans and that there's no psychological tests are a established battery of tests that are known to pick up brain damage w don't always pick up on it but the judge you know so a spontaneous asks about this can be scans on a couple of different in some instances this these questions show predisposition and the fact that the judge is suggesting that there must be  scans to show brain damage but i'd like to go back to the i q evidence briefly because the problem there's a few problems with what the judge was stating about the i q evidence first of all thank you evidence as i mentioned was relevant to show jack the decline in jackson's mental functioning and the brain damage also calling it could not but there is no evidence to believe that this is this is a deception a con comes from the french word meaning to cheat and  that's a false or unfounded report of story especially if ever created report there's just no evidence to believe that that's what this is also the judge is dismissing the i q evidence based on what he's heard in other cases in the building he can't do the overlay between that the mental illness and the mental defect which was shown by the i q evidence along with the battery of tests that dr harbor owner did that showed his his decreased mental ability and his brain damage it was questionings questions greatly disrupted the flow of defense counsel's presentation of its expert witness also dr something was the only witness for the defense and as such his testimony was critical to jackson's case as it was the whole case the judge's questioning interrupt defense counsel's planned presentation at times the defense the judge e mails the line of defense counsel's questions for example defense counsel asks about the dia asked dr from kind about the d s m four and the judge interrupts her i would say on a day that i mean obviously not every question is is over the line i mean i can't possibly say that to you guys it's not there are some clarifying questions but the problem here is that there is a large quantity of questions here that is over the line it's what he did i mean you to look at the record as a whole he jumps into the proceedings he takes over there's a section during direct examination where the defense counsel just starts asking dr frank and about the certain act records and the judge just johnson takes over for eight pages it's just the judge asking questions of the defense witness for eight pages but again this isn't just clarifying because dr franken has not yet asked about it i think the timing is critical here this is a case where  the expert testified on direct hit so the defense was able to present its defense in the way that it has a right to the prosecutor got a chance to poke holes in it as prosecutors do maybe there is a crop redirect another cross and then the judge says you know there's still some issues i'm unclear about that's not what happened here the judge jumps in right away he's a part of this proceeding he's a de facto prosecutor as well because his questions are also medication parties i don't know if they're handing out anti psychotic medications you know as a matter of course people when they get there i don't have any knowledge about that but it's not in the record and that's the problem here you know he's dismissing that  know sure he's on medications but just because he's an anti psychotic medications shortly after the shooting one week afterwards doesn't mean that he's experienced it's just missing the psychotic behavior that he's having or the support that getting these medications gives to  from concessive morning because they just hand those out practically it doesn't mean that he has a psychotic disorder in any way it's just diminishing every aspect of from dr from ken's opinion here also the is obligated to look at the record as a whole in order to term and whether the judge crossed the line so in effect it is essentially a do you know review in my perspective so the judge took over the proceedings you know during direct defense counsel was on the sidelines and response to this answer is judge ford sports himself on the record his explanation to dr from ken of why he's asking these questions and he says to dr fred i can quote if i'm going to accept your opinion whether or not i don't know yet but if i'm going to accept your opinions i need to understand them fully the reasons i asked these questions because you have indicated that he provides you with information about what antagonize tep that is what we have to judge for as explanation for why he's when the evidence has either already been brought to the courts of attention and perhaps the court is trying to move the proceedings along or perhaps the evidence is inadmissible and in those cases it's the judge just do it to see that only proper evidence is the for that court and in this case i would submit that the judge's questions overall to all the expert witness i'm just saying objections the standard in this case is whether the judge just the questions and objections on the record demonstrate a bias and a personal animosity or hostility towards the defendant and that is the sole question in this case whether the record as a whole demonstrates that and i believe that the objections in this case do not demonstrate a bias a personal animosity against the defendant coupled with the fact that we agree that it's unusual for that to occur on a whether it's against trial that by itself demonstrates a bias i would think that there would need to be much more much more of a clear bias that the standard is that and a bench trial prejudiced is only shown when there is a personal animosity towards the your no i believe it does not because it is the defendant's burden to prove by clear and convincing evidence and it is their sole burden to prove insanity and the trier of fact does not reach the question of any int he reaches the decision that the people prove beyond a reasonable doubt the defendant committed the murder and in this case it was largely uncontested that defendant committed the murder that was the spirit of a trial was not the defendant to commit this crime and the judge's questions to dr frank and just demonstrate a bias but they demonstrate that he was trying to fully understand the bases for dr from conception yes in fact it is very relevant in looking at whether the judge was biased and had predetermine the outcome in this case that the judge just verdict in this case was guilty but mentally ill therefore the judge found the defendant somewhat met his burden of proof in this case he proved that defendant was very severely mentally ill which was the requirement for a finding of guilty but mentally ill most of the judge's questions to dr franklin in this case were in regards to whether defendant had a mental illness suffered from a mental disease for instance defendant complained flagellate the questions regarding whether someone else made a diagnosis from sir mick what types the medication defendant was on what those medications met what this i q test meant in terms of brain damage well this is all relevant in terms of whether a defendant suffered from a mental disease or defect which the court found that did so clearly he was not biased really the only determine if questions posed to the expert witnesses in this case in regards to whether defend appreciate the criminality of his conduct were in regards to whether the the specific facts of the case defendant's explanation for the crime how he gave a self defense type of explanation and his flight from the crime and how he gave a different name when apprehended and asked for an attorney before being defendant are you is that the there's some incorrect knowledge about medication that was the judge that was our narcotics medication which apparently was not to be honest i'm not quite sure however if the judge was in think it was a narcotics medication that benefited defendant if he was on a more serious medication then he actually was that only shows that he was more severely mentally ill i think that your i think again would have to argue that consideration of the distribution practices of medication and what different types of medication me first was did not demonstrate a bias because she was found mentally ill by the trial or fact and in addition dr from contest money was misleading on this issue and unsupported dr franken is not a medical doctor he has no he does not have the authority to distribute medication and yet he's testifying about these things and he is arguing that simply because defendant had a strange i q result he has brain damage and dr from could order no neurological testing i would argue that it was necessary sorry for the court to further develop these areas and perhaps some of the questions were based on some of the court's own knowledge of insanity cases that he's heard before but he was giving the doctor an opportunity to further develop his burden and further me has been that the doctor from kins testimony by itself did not by did not meet the part of clear and convincing evidence that definite was legally insane he's opinion was based on unsupported evidence he did not fair five and he injuries he did not verify degree status he's coming to the ku conclusion of brain damage simply as a result of i q testing and some clinical testing without any the defendant has the sole burden on this issue and so the judge could have simply remained silent and entirely rejected dr from kins opinion based solely on the lay witnesses who clearly demonstrate that defense in this case was saying that he fled from the scene he asked for a lawyer all that indicates defendant appreciate the criminality of his actions dr frankenstein the explanation for defendant not appreciating the criminality of his actions was that he didn't have the i believe that the the best way to look at that is look at the court's own explanation as to why he's asking these questions and he says to duck from can he has to ask these questions so he can fully understand the basis for these questions for dr and fails to do that does not demonstrate a bias in this case and none of the evidence in this case is improper defendant doesn't argue that this evidence is irrelevant evidence is all relevant evidence probative of whether defendant has met his burden of proof in this case at that he is legally insane and i want to finally point out that the case is defendant sites i distinguish  appellate court has ever of first a trial judge just questioning of an expert witness in a bench trial on the sole issue of sanity judge fortune i ask any questions of the way witnesses on the people were proving their case their burden of proof this is all on the issue of sandy it's a unique case and i would submit that because of the unique nature of this case and because of the record as a whole does not demonstrate a personal animosity with the stand over view as an abuse do use of discretion because the trial court has the discretion to question a witness and in addition there's a plain error standard to me in this case because defense counsel never made an objection and defense counsel never raised the issue of motion never giving the judge a full opportunity to explain himself in this case and properly dispose of this issue in the trial court and i would submit that because the evidence is so overwhelming proving defendant guilty of guilty of first degree murder and the defendant did not meet his burning defendant cannot meet a plain their standard this is not amount plain there and for those reversed well neither the state nor myself have found any cases where this judicial conduct has become an issue when that in terms of mental illness and the reason are no cases like this is because there are no cases out there where the judge's questioning was at this this level secondly the say it stood up here and said that she did not believe that the judge's questioning of doctor from going was aggressive however on page twenty two of her brief she does admit that the judge more aggressively questions dr from the say also says that doctor from his testimony is misleading because he's not a doctor and he can't possibly talk about medications and i'd like to point out too with respect to this that the court also  objects himself the court objects to dr from contests fighting about medication and doctor from kind of response says i i do know about medication most if not all of my clients may be mentally ill clients i are on these medications and predicated on why can you describe the procedures of those tests there's nothing like the questions that the judge asked of dr frank and they're very very different tenor they're they're the questions of dr franken are aggressive they're at that point the judge hasn't even heard the evidence he also does this on cross examination when he's talking about the reasonableness of jackson's fright and the reasonableness of his reaction to that to sham places a question if there are