State v. Hayes: What Happens If The Judge Can't Return?

Superior Court Judge John C. Blue called in sick today, causing another delay in the case of State v. Hayes, the triple murder that has captured the morbid fascination of the court-watching civilized world. Although details are sparse about the judge's condition, it's been reported he is the hospital for observation. He was dizzy this past weekend. He is expected back on the job on Wednesday, when the trial is scheduled to resume.

But what would happen if the judge was too sick to return?, you might wonder.

Fortunately, judges don't often fall so ill that they cannot continue presiding over a trial in which they have begun to hear evidence. I've only had a judge fall ill once during a trial, and that was during jury selection in a capital felony case. In that case, the judge had not decided any pretrial motions; he had not presided over the taking of evidence; the only rulings he had been required to make regarded whether a given potential juror was too biased to serve on the panel. In that case, we merely changed judges and went on our merry way.

Things may not be so simple in the Hayes case. That is because of the law of the case doctrine, a little discussed and even less well understood legal theory.

The trial of a case calls upon a judge to rule on matters of procedure, admissibility of evidence and the substantive law governing a dispute. In the course of a trial, especially a capital trial, a judge may be called upon to make scores of rulings. Many of these rulings do not have obvious right or wrong answers: they are calls that are discretionary and are based on a judge's evaluation of a witness or his perspective on how a question is presented. The cumulative weight of these decisions, and how they interact with one another, becomes the law of the case. Thus a ruling on a piece of evidence might be admissible in one case, and not in another. Although the rule of law requires uniformity and transparency, it is a given that judges differ. The law of the case doctrine sets in quick-drying concrete the ad hoc decisions of the trial judge presiding over a given dispute. These discretionary calls are rarely capable of being over-turned on appeal.

Thus, in the Hayes case, Judge Blue has placed his thumb prints on the scales of justice. The parties have developed a working relationship with him, and understand his perspective on close evidentiary rulings. Undoubtedly, there have also been many pre-trial conferences in chambers, well hidden from view, in which the lawyers and the judge have worked out compromises, whether stated or not, on certain issue. A new judge simply won't have that context. Put prosaically, a new judge may well bring a new strike zone to the batter's box well into the game.

A powerful argument can be made that a new judge should be able simply to read the transcript of what has thus far transpired in the case. Such a reading will inform the judge about those decisions and rulings that bind the parties in this particular case. But words on a page require interpretation, and that means a judge to divine their meaning. No two judges will agree on all things. Law is not a hard science.

My hunch is that if Judge Blue is too ill to return, the State will be eager to agree that a new judge can simply read his way into the case. The State is, after all, moving in for a kill here and wants Mr. Hayes' blood sooner rather than later..

But I cannot imagine the defense agreeing to permit a new judge to get behind the plate. This is a life and death struggle for Mr. Hayes. So long as the State cannot ask a jury for permission to stick a lethal needle into Mr. Hayes' arm, Mr. Hayes, and I dare say, humanity, wins. There is no justice in killing.

I suspect Thomas Ullmann, Mr. Hayes's lawyer, will object to the seating of a new judge for the simple reason that if a new judge cannot be seated, it would force a mistrial. The State would then be forced to reconsider its decision to reject Mr. Hayes' offer to plead guilty in exchange for an agreement not to kill him.
Remember, the defense wins so long as Mr. Hayes remains alive.
Of course, that assumes Mr. Ullmann stays well within the conventional box most lawyers inhabit. If he gambles boldly, he can agree to a new judge. There is plenty that suggests this would be a smart choice. First, the jury in this case appears confused: One juror has already begged off, claiming the state's lack of preparation so distracted him he could not follow the case. Other jurors are asking questions, such as how did the surviving victim managed to untie himself just in time to escape a burning building, according to a note sent to the judge. At week's end, the jury sent another note all but begging the state to speed up presentation of the case. Could it be that this jury is being driven to distraction by a poorly tried case?

I've appeared before Judge Blue and know him to be a good and decent man. Here's to hoping he recovers soon and is able to resume his role in this case. But if he can't, I'm betting the case mistries. The law of the case doctrine requires it. This is show trial that deserves an early curtain.


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