Pubdate: Mon, 21 May 2007
Source: Charleston Gazette (WV)
Copyright: 2007 Charleston Gazette
Contact:  http://www.wvgazette.com/
Details: http://www.mapinc.org/media/77
Note: Does not print out of town letters.
Author: Tom Searls
Bookmark: http://www.mapinc.org/meth.htm (Methamphetamine)

CLAY JUDGE ADMONISHED; NEW TRIAL GRANTED

State Supreme Court justices admonished a Clay County judge for not 
remaining impartial and neutral in a methamphetamine case, granting 
defendant Gerald Mark Thompson Jr. a new trial in an opinion last week.

The court found that Circuit Judge Richard A. Facemire "abandoned his 
role of impartiality and neutrality and that his role in both 
questioning witnesses and making comments to aid the prosecuting 
attorney in the presentation of the state's case seriously affected 
the fairness, integrity, and public reputation of the judicial 
proceedings," Justice Larry Starcher wrote for a unanimous court.

"We also find that the judge's conduct in this case weighed in favor 
of the state's case to the point that the judge's partiality became a 
factor in the determination of the jury to such an extent that the 
appellant did not receive a fair trial," he wrote.  - advertisement -

State Police troopers and Clay County sheriff's deputies were called 
to Thompson's residence in April 2004 because of shots fired. During 
a search of Thompson's residence, they discovered a small wooden 
barrel containing a small sealed Mason jar with a length of clear 
tubing extending out of the jar through a seal. The officers believed 
there were chemicals inside the jar.

Thompson was later indicted by a Clay County grand jury and convicted 
of making meth after a trial before Facemire in September 2005. He 
was sentenced to two to 10 years in prison.

But Starcher noted during the course of the trial, Facemire 
"conducted extensive questioning of many of the witnesses."

In all, the judge asked about 180 questions of trial witnesses.

Facemire asked 83 questions to one State Police trooper, many the 
prosecutor had already questioned him about, and more than 20 to 
another. During that time he also referred to the chemicals found as 
"meth" or "methamphetamine," the court noted.

He had more questions for defense witnesses, asking Thompson seven 
questions, his mother 47, his wife 13 and another witness 11.

"The orderly conduct of criminal trials requires that the trial judge 
be extremely cautious not to intimate in any manner by word, tone, or 
demeanor, his opinion upon any fact in issue," Starcher wrote. 
"Regardless of the intentions of the judge with his questioning of 
witnesses and prompting in this case, the actions of the judge in 
this case compel reversal."

The court also went so far as to overrule the "plain error doctrine." 
Argued by the prosecution, it generally says a person cannot appeal a 
case on grounds the defense did not raise objection to at the time of 
the trial.

Thompson's lawyer, Clay attorney Jerome Novobilski, did not object to 
the judge's questions and comments at trial and raised only two of 
those issues on appeal.

But the court also noted it can go beyond that rule on rare occasions 
where there is an error that seriously affects the fairness, 
integrity, or public reputation of the judicial proceedings.

"Although counsel for the appellant failed to raise contemporaneous 
objections to the plethora of questioning by the judge or to his 
comments, we find the judge's role to be of such magnitude as to 
justify a review upon a plain error analysis," Starcher wrote.

Novobilski was not available for comment Friday.

Facemire also seemed to be questioning the credibility of defense 
witnesses, Starcher wrote. "The credibility of witnesses is also a 
question for jury determination," he wrote.

The court decided Facemire's actions influenced jurors.

"We do not believe that it is necessary to pry into the mind of the 
trial judge or to speculate as to his motives in asking questions or 
making comments during the trial," Starcher wrote. "We need only to 
view the judge's conduct from the perspective of the members of the jury."

Thompson had raised other objections, including whether the state's 
meth law that allows for arrests when a person has meth-making 
materials and not the drug itself is constitutional.

But the high court declined to consider that or other issues, saying 
Facemire's conduct was enough grounds to order a new trial.

"In a criminal trial, when a judge's conduct in questioning witnesses 
or making comments evidences a lack of impartiality and neutrality, 
or when a judge otherwise discloses that the judge has abandoned his 
role of impartiality and neutrality as imposed by the Sixth Amendment 
of the United States Constitution, we will reverse and remand the 
case for a new trial," Starcher wrote.
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