Evening star., 1951-01-20
PreiudicioI Demeonor

The United States Court OF Appeals is on
sound ground in holding that judges facial
expressions, tone of voice and gestures can be
Enormously detrimental to defendant in a
criminal case" and hence are properly subject
to defense objections The attitude of the ap-
pellate court has been made plain in two recent
District Court cases in which Judge Holtzof
presided. In the latest of these a narcotics con.
viction was reversed and remanded for new
trial because Judge Holtzof refused to allow
defense attorney to take any exception to ges-
ticulation and facial expression"
The question of judicial demeanor first
reached the Court of Appeals in the "Snags"
Lewis-Frank Belief gambling case. Although
the higher court reversed the LewiS-Bellici con-
viction on grounds other than Judge Holtzof's
facial expressions the court laid down the general
rule that attorneys have not only the right but
the duty to voice objections to any prejudical
tactics on the part of the presiding judge The
rule states that "if the intonations and gestures
of trial Judge are enormously detrimental to
a defendant in a criminal case, it is the duty
of counsel to record fully and accurately, at the
time and on the record, although not in the hear
ing of the jury, what has happened In such
situation it is as much his duty to make that
record as it is his duty to record his objections
to the charge the rules require, before the
jury leaves the room. If the representations
Lnen mace py counsel are nOt dCCuIdte,
court may say so. But if there is a serious
question as to whether the jury may have de-
rived some unintended meaning or have been
likely to infer enormously from the gestures and
intonations of the judge, he should emphatically
instruct them SO as to remove any possible erro-
neous impression from their minds"
This rule, however, was not in effect at the
time of the trial of the second case involving
alleged detrimental" actions by Judge Holtzof.
In this case the court threatened defense at
torney with a contempt-o court citation If he
persisted in objecting to the judges "gesticula-
tionS and facial expressions" Judge HotZoh
declared it was "a false notion" that exceptions
could be taken to such things. The appellate
court takes the opposite view.
While the appellate court ruling is sensible
in theory, it may present difficulties in practice.
It is not easy to describe in writing for the record
the facial expressions or geSticulatlons to which
exception is taken-and without full under
standing of the facts the higher court would
be handicapped in arriving at a decision. Fur
thermore, as the recent series of Communist
trials have shown, there are lawyers who would
not hesitate to prolong trials with endless OBJ
jections to every frown or lifting of the voice or
wave of the hand detected on the bench.
Perhaps the time is coming when, as Repre-
sentative Hobbs of Alabama long has advocated,
the Federal courts will record everything that
goes on in criminal trial with motion-picture
cameras and sound-recorders. bill to this
end is pending before Congress Chief Judge
Laws of District Court is chairman of Judicial
Conference Committee which has been studying
the practicabty of installing such devices as
a regular part of the judicial machinery. The
Court of Appeals, probably by coincidence, lent
support to the recording plan when it remarked,
in the Lewis-Beci case that Retrospective de-
,1ior1x
trial judges 'gestculations or facial express
sion furnishes a much less reliable basis for
review than does a contemporaneous description"
The best "contemporaneous description" OF
course would be sound movie Of what the
Judge did and said.