It is not unusual for judges to intervene in court proceedings from time to time - to direct the lawyers to move the case along or to admonish them that evidence is repetitive. The judge’s role is to act not as a “mere moderator,” as the Supreme Court noted in Herron v. Southern Pacific in 1931, but as the “governor of the trial” responsible for assuring the proper conduct of all participants.
The performance of U.S. District Court Judge T.S. Ellis III in the trial of Paul Manafort on bank fraud and tax evasion charges has been decidedly unusual.
During the trial, Ellis intervened regularly, and mainly against one side: the prosecution. The judge’s interruptions occurred in the presence of the jury and on matters of substance, not courtroom conduct. He disparaged the prosecution’s evidence, misstated its legal theories, even implied that prosecutors had disobeyed his orders when they had not.
Under the Code of Conduct for U.S. judges, a judge is supposed to be fair and impartial, as well as “patient, dignified, respectful and courteous” to those in his courtroom. The rule’s concern is as much about the appearance of justice as its reality. If the judge violates that rule and a defendant is convicted, there may be a trial remedy — an appeal.
But there will be no appeal available to address Ellis’s anti-prosecution bias if Manafort is acquitted by the jurors, who began deliberating on Thursday. The prohibition against double jeopardy precludes it. And if President Trump’s former campaign chairman is convicted despite Ellis’s interventions, the judge’s hostility toward the prosecution will have been irrelevant.
For now, we have only the extraordinary evidence of Ellis’s conduct during the 12-day trial. The judge continually interrupted the prosecution’s questioning of witnesses, prompting lead prosecutor Greg Andres to pointedly note: “Your honor stops us and asks us to move on.” Ellis pressed the prosecution to rush through testimony about important financial documents. He made critical comments about prosecution evidence and strategy - all in front the jury.
Ellis also questioned the relevance of Manafort’s work as a political consultant for Russian-backed politicians in Ukraine, for which he was paid tens of millions of dollars from 2010 to 2014. But if Manafort didn’t disclose some payments because he was not registered in the United States as a foreign agent, it would provide a motive to hide the amounts from the U.S. government - just what the trial was about. Ellis chided prosecutors for eliciting testimony about Manafort’s lavish lifestyle, but that kind of testimony is also a classic element in a tax evasion case. That your cars, boats, condos and clothing suggest you made much more income than you reported would surely be relevant.