A judge who peppered two experts with questions at a 2003 murder trial, making nearly as many inquiries as the defense, acted within his bounds and did not take on the appearance of an advocate, a unanimous Manhattan appeals court has ruled in denying a defendant a new trial.
Sherman Adams argued he was deprived of a fair trial because Manhattan Supreme Court Justice Edwin Torres, who is now retired, “took over” his attorney’s line of questioning of two gunshot-residue experts who were prosecution witnesses. Their combined testimony spanned 70 pages of the transcript, and Torres’ questions appeared on 44 of those pages.
But in a decision last week in People v. Adams, 2014 NY Slip Op 02349, Appellate Division, First Department, Justice Richard Andrias (See Profile) wrote that many of Torres’ interventions were merely “attempts to clarify expert testimony” for the jury. Others, “even if ill-advised, may be characterized as light-hearted banter.”
The panel said the substance of a trial judge’s questions, not their number, determines whether a defendant’s constitutional rights were violated.
“Even if a trial judge makes intrusive remarks that would have been better left unsaid, or questions witnesses extensively, the defendant is not thereby deprived of a fair trial so long as the jury is ‘not prevented from arriving at an impartial judgment on the merits,’” Andrias wrote, quoting People v. Moulton, 43 N.Y. 2d 944, 946 (1978).
Adams was convicted in 2003 of firing shots into a car that killed two people near a housing project in Manhattan’s Chelsea neighborhood. The verdict followed two mistrials with deadlocked juries.
Two experts—an FBI analyst and private examiner—linked Adams’ to a 9mm semiautomatic handgun used in the shooting through residue found on the front of his denim jacket. A police officer and other eyewitnesses also identified Adams as the shooter.
Defense counsel did not object at trial to Torres’ questions to the two experts. Torres also instructed the jury not to consider his questions as any indication of his opinion in reaching their verdict.
Adams was sentenced to two consecutive life sentences without parole. The appeals court modified the sentences to run concurrently in accordance with the state penal code.
Torres stepped down from the bench in 2008 after reaching the mandatory retirement age of 77. He is also a crime novelist whose book, “Carlito’s Way,” and its sequel, “After Hours,” were made into a 1993 movie starring Al Pacino.
The Adams case is not the first time Torres had been criticized for asking too many questions at trial.
Adams’ lawyer, Mark Zeno of the Center for Appellate Litigation, pointed to another case involving Torres, People v. Retamozzo, 25 AD3d 73 (2005), in appeals briefs and oral arguments. In that case, the First Department overturned a drug-possession conviction after finding Torres interrupted questioning in a manner that prejudiced the defense’s case.
Though Torres’ “significant interference … advocated the prosecution’s case and completely undermined the defense” in Rentamozzo, the same level of interference “does not exist” in Adams, the appeals court wrote in its April 3 decision.
Still, the panel added: “We once again caution trial judges against engaging in overly intrusive involvement in the questioning of witnesses, and unduly interfering with the orderly presentation of proof in the trial of a criminal case.”
Zeno said he and his client were “grievously disappointed” by the decision.
“I don’t think the First Department’s characterization of Judge Torres’ questions was accurate,” Zeno said. “It wasn’t neutral, it wasn’t light-hearted banter. It was biased.”
Zeno said he will appeal.
Manhattan Assistant District Attorneys Susan Axelrod and Susan Gliner handled the appeal for the office, which declined to comment.