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Philadelphia Common Pleas Court Senior Judge Marvin R. Halbert took the witness stand Tuesday to respond to allegations that telephone calls he made from the bench and other activity during a trial interfered with its outcome. Tuesday was day three of an evidentiary hearing before Judge Alfred J. DiBona. The underlying case was a premises liability action that ended in a defense verdict. Plaintiff Doreen DiMonte was assaulted while walking from Philadelphia’s Neumann Medical Center to its parking lot. She alleged that Neumann was responsible for the attack by providing inadequate security. Her trial took place during Thanksgiving week in 1998. The case is currently on remand from the superior court to determine if the “stewardship of the litigation” deprived DiMonte of her right to due process. The common pleas court is now to decide whether Halbert’s activities — namely making telephone calls from on the bench, standing on a table to adjust a ceiling heating vent, making gesture, such as holding up a sign saying “7″ to tell counsel he had only seven minutes to finish his closing, and leaving the bench — changed the outcome of the trial. Halbert is represented by Mitchell S. Clair of Donald F. Manchel & Associates. Clair is working in conjunction with defense attorney Jill Fisher of Silverman Bernheim & Vogel. Fisher represents the original defendant in the underlying suit, Neumann Medical Center. Robert F. Datner of Datner & Murphy represents DiMonte. WRAPPING UP DiMonte’s case wrapped up on Friday after continuing testimony from DiMonte and testimony from her husband, Dennis Ardell. Clair’s questioning of DiMonte became heated at times, with Judge DiBona interjecting at least once. DiMonte said she had overheard Halbert talking on the phone about a medical procedure. Clair asked her if it was true that she actually knew about the medical procedure because the judge told the jury about it, telling them they would receive an extended lunch break one day. “Does that indicate to the jury that your case is not important?” Clair asked DiMonte. “I don’t think a diagnostic procedure should have been scheduled during a trial,” DiMonte said. “The medical procedure had been scheduled two months before the trial,” DiBona interjected. During his testimony, Halbert said he was scheduled to get an ultrasound at Pennsylvania Hospital and had made the appointment some time before DiMonte’s trial. DiMonte also said Halbert left the bench several times, leaving the room to get water or walk into another room. Ardell testified that he was distracted during his testimony by the judge’s behavior. “I lost my train of thought completely,” Ardell said. “I was discombobulated. I didn’t even know what I was saying.” Ardell also said he saw the judge leave the courtroom three times. “Isn’t it true that you were unnerved by my cross-examination, not the judge’s behavior?” Fisher asked on cross-examination. “Yeah, I get unnerved by you,” Ardell responded. After DiMonte rested her case, Fisher made a motion asking the court to rule that DiMonte had not met her burden. After both sides argued their positions, DiBona denied the motion. “However, that does not mean that I am convinced that plaintiff has met her burden,” DiBona said. HALBERT’S SIDE Halbert on Tuesday spent several hours on the stand fielding questions. He vehemently denied that he made telephone calls during any witness’s testimony. “Did you make 10 phone calls during the course of this trial?” Clair asked. “Ridiculous,” Halbert said. “Is that a no?” Clair asked. “That is a no — a very emphatic no.” DiMonte had made allegations that the judge was overheard talking on the phone about dinner engagements and theater tickets. The judge said he wouldn’t speak of such things because his wife arranged all dinner and social engagements. Halbert agreed that he did fix the heating vent before the start of the trial and might have done it a second time throughout the duration of the trial. He said it was always important to him that the jury be comfortable. “I find that nothing could be more important than allowing the jury to be comfortable,” he said. While discussing his credentials, Halbert noted that he was in charge of a jury welcoming committee for more than three years. Halbert, 77, is currently not listed as an active senior judge for the First Judicial District and has not heard cases since this spring. He said his courtroom was often warm and he knew how to fix the heating vent himself, having done the procedure “dozens and dozens of times” before DiMonte’s trial. He said he had in the past had to wait an hour or two for the building’s maintenance staff to repair it and because he didn’t want to waste time, he did it himself. In response to holding up the number “7″ sign, Halbert said he made it a common practice to let the attorneys know how much time was left during their closing arguments. He said he thought it was a better practice than interrupting them while they were speaking. “I didn’t want to embarrass Mr. [James A.] Francis [DiMonte's original trial counsel],” Halbert said. “I thought this was the most effective way.” As for the charges that the judge left the courtroom during the proceedings, Halbert said he walked briefly to the doorway of the jury deliberation room to hold up the “7″ sign. Other than that, he said, he never left the courtroom. “Did you ever walk out of the courtroom without explanation?” Clair asked. “Never,” Halbert said. “Did you ever walk out of the courtroom with an explanation?” Clair asked. “Never.” On cross-examination, Datner asked Halbert if he made a habit of using the phone next to his bench. Halbert said that he did but only during trial breaks. Datner also questioned the judge about objections that the record indicated were not addressed by the judge. Prior testimony alleged the judge was unable to rule on the objections because of his telephone conversations. Halbert indicated that given the answer of a witness or the asking of another question, there was no need to address the objection. The judge also presented as testimony notes that he had taken during DiMonte’s trial and that he had the court seal when he was aware they might become pertinent in the litigation. Datner pointed out that the notes were not sealed until May 2000 but that Halbert first became aware of DiMonte’s allegations in March 1999. Halbert’s final witness was Fisher. She testified that she did not recall the judge speaking on the phone during testimony. Fisher said she remembered Halbert fixing the heating vent once and could only vaguely recall a second instance. Fisher said she was glad that he did it because the room was very warm, so warm that she removed her jacket. Before Halbert’s testimony, several jurors also took the stand, all providing similar testimony — that the judge’s conduct did not affect their reasoning in rendering a verdict. “I really wasn’t paying attention to the judge,” one juror said. “I was paying attention to the people up there because I wanted to be fair.” Most jurors recalled the judge standing on a table to fix a vent but said they were happy that he did it because the room was too warm. Some jurors recalled incoming phone calls but said they were not distracted from the testimony. “Unless I glanced up, I wouldn’t have known [the judge was on the phone] because I was concentrating on the testimony,” a juror testified Tuesday. Others who took the stand in Halbert’s defense were his court reporter Stephen Dickerman and Marshall Dennehey attorney Mary B. Lipinski. Lipinski represented a co-defendant who settled prior to the start of the underlying trial. DiBona will hear closing arguments this morning. Attorney Jonathan S. Ziss of Silverman Bernheim & Vogel will take over for Fisher because of her testimony as a witness.

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