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December 12, 1985


Appeal from an order of the United States District Court for the Eastern District of New York (Bramwell, Judge), denying state prisoner's application for a writ of habeas corpus which alleged denial of a fair trial as a result of the state trial judge's conduct. Affirmed. Oakes, Circuit Judge, filed dissenting opinion.

Author: Pierce

Before: OAKES, MESKILL, and PIERCE, Circuit Judges.

PIERCE, Circuit Judge :

Whether conduct by a judge in a state court criminal trial is sufficiently excessive to constitute a violation of the federal constitutional right to a fair trial is the issue presented here. Clearly, the fundamental right to a fair trial rests at the epicenter of our broad array of due process rights, thus, a most scrupulous review of the events which occurred in the challenged criminal trial is required of us. Principles of fundamental fairness represent the constitutional litmus test we must apply; concurrently, principles of comity and federalism warrant our respectful attention. Our review leads us to conclude that the determination by the district court denying the petition for a writ of habeas corpus should be affirmed.


Procedural History

On April 23, 1974, petitioner Gayle was indicted in Kings County, State of New York, for the murder of one Dennis Nunes on January 2, 1972. He was tried by a jury before a Justice of the New York State Supreme Court, Kings County. The jury found Gayle guilty of Murder in the Second Degree, and on October 28, 1974 he was sentenced to a prison term of twenty-five years to life. The Appellate Division, Second Department, affirmed the conviction without opinion on December 13, 1976. People v. Gayle, 55 A.D.2d 858, 390 N.Y.S.2d 768 (2d Dept. 1976). On January 24, 1977, leave to appeal to the New York Court of Appeals was denied.

In April of 1977, Gayle filed a petition in the United States District Court for the Eastern District of New York seeking a writ of habeas corpus; he claimed that the trial judge's conduct had been so biased that it denied him a fair trial and thereby deprived him of liberty without due process of law. On September 14, 1978, the district court (Neaher, Judge), ruling on the merits, denied Gayle's petition. On appeal, this court did not address the substance of petitioner's claim. Following Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979) (Gurfein, J.), we held that Gayle had not exhausted his state remedies adequately because in his state appeal he had failed to identify his claim of denial of fair trial based on judicial bias as asserting the denial of a federal constitutional right. Accordingly, we affirmed the denial of the petition. Gayle v. Le Fevre, 613 F.2d 21, 22-23 (2d Cir. 1980) (Pierce, J.) (Oakes, J., dissenting).

Gayle returned to the New York courts and sought to exhaust state remedies. On January 15, 1980, he moved in the Appellate Division, Second Department, to have that court amend its December 13, 1976 ruling to include a statement that the court had considered and rejected his claim that the trial judge's conduct had deprived him of his rights under the fourteenth amendment of the United States Constitution. The Appellate Division denied this motion without opinion on March 31, 1980. Thereafter, on March 6, 1981, in Supreme Court, Kings County, Gayle filed a motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h) (McKinney 1983). In support of his motion, Gayle alleged in an affidavit that the state trial judge's bias had deprived him of his rights under the fourteenth amendment. On October 2, 1981, the Supreme Court denied this motion pursuant to N.Y. Crim. Proc. Law 440.10(2)(c), which mandates denial of a § 440.10 motion raising any issue that the movant unjustifiably failed to raise on his direct appeal. On April 20, 1982, the Appellate Division, Second Department, denied Gayle leave to appeal.

On September 30, 1982, Gayle filed the instant habeas petition in the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 2254. Reviewing this petition, Judge Bramwell ruled that under the "relaxed exhaustion standards set forth in Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982) (en banc) (Daye II)" - which was decided after, and effectively overruled, Johnson v. Metz and Gayle v. LeFevre - Gayle had sufficiently identified his claim of denial of a federal constitutional right in his direct state appeal, and that he had exhausted his state remedies sufficiently to pursue his habeas application in federal court. Then, addressing the merits of Gayle's application, the district judge found that "although the trial judge's conduct may have approached the constitutional limit of fundamental fairness, the petitioner herein was not denied a fundamentally fair trial."

The Trial

At Gayle's state trial for murder, the prosecution presented evidence from which the jury could have found the following: On January 2, 1972, at approximately 1:00 a.m., at a party on the first floor of an abandoned house at 666 St. Marks Avenue in Brooklyn, Gayle approached Dennis Nunes and greeted him; Gayle walked a few steps with Nunes and then drew a small automatic handgun, placed it at Nunes' stomach, fired one shot, and fled; Nunes fell to the floor; minutes later, another man came down the stairs of the house and fired a gun at Nunes but did not hit him.

The prosecution's major witnesses were as follows:

1) Royston Foster and David Jones

David Jones and his cousin, Royston Foster, testified that: At approximately 10:00 p.m. on January 1, 1972, they arrived at the party at 666 St. Marks Avenue; Jones and Foster had provided the stereo equipment being used at the party and were tending the records; sometime after midnight, a man wearing a dark coat walked up to Dennis Nunes, who was standing a few feet from Jones and Foster, put his arm around Nunes, and, according to Jones, said "What happened, Den-Den?" (Foster heard no conversation); the two men then walked together into an adjoining unlit room where the man in the dark coat took a gun from his waist and fired a single shot into Nunes' torso; within a few moments, another man came down the stairs of the building, stopped several feet from Nunes - who had fallen to the floor - and fired two shots; neither of these two bullets hit Nunes; Jones and Foster both identified Gayle as the man in the dark coat who had fired the shot that struck Nunes.

On cross-examination, Jones stated that he had never seen Gayle either before or after Nunes' murder; that he had consumed seven alcoholic drinks, including five of 150 proof rum, before arriving at the party; and that, though several months prior to that night and "eye doctor" had prescribed glasses for him, he had not at that time obtained glasses. Jones also stated that, when questioned by police at the scene of the crime, he had denied seeing anything and had told them he arrived at the party after the murder had taken place. On cross-examination, Foster stated that he had seen Gayle numerous times before the night of the party - though the two had never met - and that he had not discussed the shooting with his cousin, Jones, at any time during the two years between that event and the trial.

2) John O'Malley

Officer John O'Malley of the New York City Police Department (NYPD) was one of the first officers to arrive at the scene of Nunes' murder. O'Malley testified that, as he arrived, he observed Nunes' body outside the house. Inside the house, on the first floor, O'Malley found a single spent .25 caliber cartridge but no other evidence of any crime.

3) Reuben Bankhead

Detective Reuben Bankhead was a member of the NYPD's investigative team that responded to the report of Nunes' murder. Bankhead testified that he discovered bloodstains on the floor of the apartment where Nunes was shot. Detective Bankhead also testified that he had questioned Gayle shortly after his arrest and that after being informed of his constitutional rights, Gayle made a statement confessing to Nunes' murder. Detective Bankhead testified that he took no notes during this confession, made no record of it later, and no witnesses were present in the squad room at that time.

4) Harold Sperling

Detective Harold Sperling testified that he was a member of the "apprehension team" charged with finding the appellant. On April 23, 1973, Sperling and his partner, Detective Booze, both of the NYPD, saw appellant in the vicinity of Decatur Street and Broadway in Brooklyn. Sperling testified that he and his partner approached appellant, identified themselves as police officers, and asked him if he was Keith Gayle. Sperling further testified that appellant answered in the negative, and when Detective Booze attempted to handcuff him, he fled. The detectives gave chase and apprehended Gayle.

5) Dominick DeMaio

Dr. Dominick DeMaio, the medical examiner who performed the autopsy on Dennis Nunes' body, testified that Dennis Nunes had been killed by a single .25 caliber bullet which extensively damages his internal organs. DeMaio further testified that the wound would have caused little external bleeding and that the entry showed no evidence of the powder burns that are normally present when a wound is caused by a bullet fired at close range. However, Dr. DeMaio stated that the powder might have been filtered out by the victim's clothes. (Nunes' clothes had been removed before Dr. DeMaio examined the body and apparently were not made available to him.)

In addition, the prosecution introduced an exculpatory statement made by Gayle to an assistant district attorney shortly after he allegedly confessed to Detective Bankhead. In his statement, Gayle said that he was at his sister's apartment at the time of Nunes' murder.

Gayle testified in his defense that, at the time in question, he had been at a small gathering of friends at his sister's apartment at New York Avenue and St. Johns Place in Brooklyn. He further testified that at the time of his apprehension the two detectives failed to identify themselves and that he had been afraid of the authorities because he was an illegal alien. He denied giving any confession to Detective Bankhead.


We do not sit in this case to assess the sufficiency of the state's evidence as such nor to express any view as to whether Gayle was guilty or not guilty of the crime charged. The issue presented to us is whether the appellant was denied his federal constitutional right to a fair trial due to apparent bias on the part of the state trial judge.*fn1

Pursuant to the fifth and fourteenth amendments, it is axiomatic that all criminal trials must be conducted within the bounds of fundamental fairness. See Taylor v. Hayes, 418 U.S. 488, 501-02, 41 L. Ed. 2d 897, 94 S. Ct. 2697 (1974); Ward v. Village of Monroeville, 409 U.S. 57, 34 L. Ed. 2d 267, 93 S. Ct. 80 (1972); Mayberry v. Pennsylvania, 400 U.S. 455, 465, 27 L. Ed. 2d 532, 91 S. Ct. 499 (1971); Rochin v. California, 342 U.S. 165, 173, 96 L. Ed. 183, 72 S. Ct. 205 (1952); Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927). This Circuit's standards for determining whether that right has been abridged by virtue of the bias of a state trial judge are set forth in Daye v. Attorney General, 712 F.2d 1566 (2d Cir. 1983) (Daye III), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984) and Johnson v. Scully, 727 F.2d 222 (2d Cir. 1984).*fn2 As we noted in the latter case, these standards are "somewhat ill-defined," id. at 226, however, the concerns which the standards address are clear. First, as stated in Daye III, the bias of a trial judge:

creates a risk that the jury will be deflected from a conscientious discharge of their responsibility to find the facts, apply the law, and reach a fair verdict. The jurors may believe that they should shade their judgment to accommodate the judge's view of the defendant's guilt, perhaps deferring to his view in a close case. Second, even if the jurors are not swayed from an independent discharge of their solemn responsibilities, the judge's [action] creates a risk that the trial will not be perceived by the defendant or the public as a fair adjudication of guilt or innocence, presided over by a neutral magistrate obliged to deal even-handedly between the contending forces of the prosecution and the defense.

712 F.2d at 1571-72; see also Johnson v. Scully, 727 F.2d at 226.

It is clear that a judge does not deny a defendant due process of law by merely intervening in a trial to question witnesses. Further, it is abundantly clear that only infrequently does intervention by a trial judge rise to the level of a due process violation. Daye III, 712 F.2d at 1572; Johnson v. Scully, 727 F.2d at 226. We are cognizant that:

A trial judge in [a] criminal . . . cas[e], may, indeed must, be more than a mere moderator or umpire in a contest between two parties in an arena before him. He should take part where necessary to clarify testimony and assist the jury in understanding the evidence . . . .

United States v. De Sisto, 289 F.2d 833, 834 (2d Cir. 1961). Nor does the mere occurrence of adverse questioning violate a defendant's constitutional rights: "[E]ven the most neutrally framed questions, asked solely for clarification, may elicit answers devastating to the defendant. Moreover, a trial is not rendered constitutionally unfair every time a trial judge asks a question obviously intended to permit a witness to emphasize testimony helpful to the prosecution or clearly designed to challenge testimony favorable to the defense." Daye III, 712 F.2d at 1572. The judge's intervention in the conduct of a trial must be both significant and adverse to the defense "to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceed[s] constitutional limits." Id. Thus, a petitioner claiming that a judge's bias deprived him of a fair trial faces a difficult task. As the dispositions of both Johnson v. Scully and Daye III demonstrate, a federal court will not lightly intervene when such a claim is asserted. However, "we recognize that some point exists beyond which the quantity and nature of a trial judge's questioning renders a trial unfair in the constitutional sense." Id. at 1572. Having carefully reviewed the nearly 1000 pages of the trial transcript herein, we conclude that the trial judge in this case did not pass this point.

It is the contention of appellant that throughout appellant's trial, the judge repeatedly displayed obvious partiality toward the prosecution and bias against the defense in the presence of the jury by ridiculing defense counsel and berating him for pressing objections; constantly interrupting defense counsel's cross-examination of prosecution witnesses - interfering with his efforts to present a coherent defense - while almost invariably allowing the prosecutor a free hand; intervening often to rehabilitate prosecution witnesses whose credibility had been called into question and to elicit repetition of testimony favorable to the prosecution; at several points offering unrequested instructions to the jury to minimize problems with the prosecution's proof; taking over the examination during appellant's testimony in his own defense; and making clear to the jury his disbelief of Gayle's testimony.

The appellee contends that by focusing on the trial judge's alleged improprieties the defense attorney's "irritating and contumacious behavior" is ignored; the suggestion that the court's explanations and directives to counsel were unwarranted reprimands is a mischaracterization; the rulings and admonitions to counsel and the court's participation in questioning witnesses were necessary to guide counsel, to ensure the orderly progress of the trial, and to ensure that the jury heard and understood all the "essential testimony"; and, finally, the court's charge was legally correct and fairly summarized the evidence in the case.

The appellee all but concedes that the trial judge's intervention in this case was extensive, but argues that the risk that the defendant, the jury, and the public will not perceive the trial as fair arises when judicial intervention - other than an explicit expression to the jury of the court's opinion that a defendant is guilty - is not merely extensive but also is adverse to the defendant to a substantial degree. See Daye III, 712 F.2d at 1572. Gayle does not contend that at any point the trial judge explicitly stated that in his opinion he believed appellant to be guilty. Appellee argues, and indeed it appears to be so, that the degree of judicial intervention in this case was far less extensive than that of the trial court in Johnson v. Scully, 563 F. Supp. 851 (E.D.N.Y. 1983), rev'd, 727 F.2d 222 (2d Cir. 1984), which we found not to have exceeded constitutional bounds.

As discussed hereinbelow, the judge's intervention in this case, while frequent, in our view was not substantially adverse to appellant to the point of exceeding constitutional bounds.

A review of the trial transcript reveals that frequently statements were made by the trial judge which may be described as caustic and sometimes sarcastic - still other comments were gratuitous and might have been better left unsaid. See, e.g., Tr. at 160 (where a police officer had testified several times that he did not write down the names of witnesses, the judge stated: "You want him to testify to that again? Say it again, please."); id. at 210-14 (after defense counsel asks arresting officer whether he considered reading the Miranda rights to be a foolhardy gesture, the judge responded: "We couldn't care less in this courtroom about the detective's opinion or your or mine or the district attorney's . . . . It is the law [Counsellor], that a suspect or a defendant be advised of his rights . . . . What [the detective's] opinion is of it, we are not concerned with that at all."); id. at 706 ("Do you understand that question yourself?"); id. at 156 ("Counsellor, you must rise to your feet when you address the court . . . . This is not a real estate closing."); id. at 255 ("Excuse me [Counsellor], please don't adopt an air of despair" - upon overruling a defense objection.)*fn3

Appellant urges us to contrast these statements with the judge's banter with the prosecutor, see, e.g., id. at 122-23 (upon adjourning court on Friday afternoon, the judge stated, "[Jurors,] you must be tired. I know these two elderly gentlemen down here [presumably counsel] are tired. Well, I always say, Mr. District Attorney, I have youth on my side and -"; the prosecutor replied, "Which side?"; to which the judge responded, "All right, we won't answer that)"; id. at 194 (while waiting for a state witness, the prosecutor stated to the judge "I will have a witness for you when he walks over from the Municipal Building"; the judge replied, "I have always maintained it is a long walk from the Municipal Building"; the prosecutor responded, "Maybe he will take the IRT"' to which the judge replied, "It's too long, about half a long block.").*fn4

Appellant contends that much of the court's questioning of witnesses seemed intended to bolster the prosecution's case. For example, as the defense questioned Detective Sperling, the judge interrupted to elicit repetition of Sperling's earlier testimony that Gayle had fled upon apprehension. Id. at 207-08. At another point, the court asked several questions of David Jones causing the witness to repeat that he had seen Gayle place the gun "right up close" to the victim. Id. at 376.*fn5 See also id. at 411 (court elicits repetition of Foster's identification of Gayle); id. at 412 (court elicits repetition of Foster's testimony that he had seen Gayle "many places before" the night of Nunes' murder); id. at 414-15 (same).

On cross-examination, defense counsel elicited from David Jones, one of the alleged eyewitnesses to the murder, that on the night in question, he had had at least seven alcoholic drinks - five of which were 150 proof rum - and that he had an uncorrected vision defect at that time. Defense counsel also introduced the witness' statement, made on the night of the murder, in which he denied any knowledge of the crime. Following this attack on Jones' credibility, the court questioned Jones regarding inconsistent statements given before and after the murder.*fn6

At another point, when Jones testified that at the time of the murder, he had been employed as a welder, the court interjected:

THE COURT: You were able to do a welding job?

THE WITNESS: Yes, sir.

THE COURT: That requires good eyesight, dies it not?


Id. at 290. The court interrupted Jones' cross-examination with several questions relating to Jones' eyesight.*fn7

Appellant claims that the trial judge openly displayed disbelief of Gayle's testimony. For example, when defense counsel elicited from Gayle that, on the date of his arrest, he had told an assistant district attorney that, on the night of Nunes' murder, he had been at home with his sister-in-law and a small group of friends, the court interrupted:

THE COURT: This was on the day of the arrest on April 13, 1973?

[Witness Gayle]: That's when -

THE COURT: In the stationhouse?


THE COURT: And they asked you where you were?


THE COURT: A year and three months earlier?


THE COURT: On January 2nd?


THE COURT: And you said you were at your sister's?

THE WITNESS: Yes, sir.

THE COURT: Go ahead.

Id. at 589.

The trial judge's inquiry as to Gayle's ability to recall his whereabouts on a specific night more than a year later was somewhat disingenuous since the court had already questioned Gayle regarding this matter at an earlier hearing to determine whether he alleged confession would be admitted:

THE COURT: You remembered a year and a half before where you were that night?

[Witness Gayle]: It was a holiday. I just come to this country, sir, so it was my second holiday in America, so quite obvious, I remember that date.


Id. at 87.

At another point in this testimony on direct examination, appellant testified that around midday on the day of the murder, he had gone with one Beverly, a friend of his sister, to Coney Island, where she lived. The court examined appellant closely, questioned him about numerous minute details of the trip including what subway trains he had taken, at what stations he had boarded, transferred, and exited, and exactly where Beverly lived:

THE COURT: She lived in Coney Island?

THE WITNESS: Yes, your Honor.

THE COURT: Whereabouts?

THE COURT: All right, what street, do you know?

THE WITNESS: No, she took me there.

THE COURT: What station did you get off at?

THE WITNESS: I don't remember the name of the station.

THE COURT: What line did you take, what subway line?

THE WITNESS: we take the No. 2 train at Nostrand Avenue.

THE COURT: No. 2 what?

THE WITNESS: The No. 2 train at Nostrand Avenue.

THE COURT: No 2 train?

THE WITNESS: At Nostrand Avenue.

THE COURT: Nostrand near where?

THE WITNESS: Nostrand and Eastern Parkway.

THE COURT: And that took you to Coney Island?

THE WITNESS: We changed.


THE WITNESS: I think it's Atlantic Avenue we changed to another train. I don't remember the name of the train we take.

THE COURT: You went to Atlantic Avenue?


THE COURT: And there you changed?


THE COURT: You don't remember the name of the train you took?

THE WITNESS: No, I don't remember the name of the train we take.

THE COURT: Or what station you got off?

THE WITNESS: Don't remember which station.

THE COURT: Go ahead, Mr. [District Attorney].

Id. at 647-49. Again we acknowledge the right, indeed frequently even the duty, of the trial judge to question a witness - most often this occurs in an effort to clarify and to avoid confusion. Occasionally, as seems to have occurred here, the judge's inquiry may be intended to test the witness' memory. Such an inquiry can be quite proper. We note, however, that, as Gayle answered the questions about his trip to Coney Island, the court asked a needlessly sarcastic question: "Did you go swimming on that day [January 2] with Beverly [off Coney Island]? Id. at 647.

The conduct of the judge and the prosecutor with respect to the Rastafarian inquiry was the single most offensive conduct during the trial. Appellant contends that, despite the absence of any basis for the inquiry, the judge allowed the prosecutor to engage in an extremely prejudicial line of questioning - to inquire whether Gayle was a member of the Rastafarian religion and, without any apparent good faith basis, to ask whether the Rastafarians were assassins, implying that this provided Gayle's motive for the murder; further, that the judge joined in this offensive line of questioning, to the point of asking whether the Rastafarians were "animals."

Q [by the prosecutor]: [Mr. Gayle, d]o you know what the Resfarians [sic] are?

MR. GALIAN: Objection.

THE COURT: Objection overruled.

A I know what the Resfarian [sic] are.

Q What are the Resfarian [sic]?

A They are some Jamaicans.

Q What are they?

A They are some Jamaicans.

Q What are they, a church group, a football team?

A I see them on the street. I know ...

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