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Former Philadelphia Common Pleas Judge Marvin R. Halbert’s conduct during a premises liability case did not amount to a structural error in the proceedings, and therefore the plaintiff should not be awarded a new trial, a common pleas court judge has ruled. Judge Alfred J. DiBona issued the 17-page ruling Thursday after a three-day evidentiary hearing conducted in October. DiBona said that while the court “does not condone” Halbert’s behavior, plaintiff Doreen DiMonte was not denied a fair trial. “While it may be true that the trial judge spoke briefly on the telephone, adjusted ceiling vents and obtained a drink of water during the proceedings, there is no evidence that such conduct interfered with the taking of testimony,” DiBona wrote in DiMonte v. Neumann Medical Center. Mitchell S. Clair of Donald F. Manchel & Associates represents Halbert in the proceedings. Clair is working in conjunction with attorneys Jill Fisher and Jonathan S. Ziss of Silverman Bernheim & Vogel. Fisher represented the original defendant in the underlying suit, Neumann Medical Center. Robert F. Datner of Datner & Murphy represents DiMonte. Late Thursday afternoon, Clair, Fisher and Ziss released a written statement concerning DiBona’s decision: “We are very pleased with the outcome of the evidentiary hearing. However, we had no doubt that the court would find that the plaintiff had received a fair trial. What is regrettable is that Judge Halbert had to endure these proceedings. As the court noted in its opinion, Judge Halbert had the utmost respect for the litigants, the jurors and the attorneys as well as for the judicial process. We trust that Judge DiBona’s opinion will bring closure to this matter.” Datner did not return a call seeking comment Thursday. The underlying case was a premises liability action that ended in a defense verdict. DiMonte was assaulted while walking from 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 was on remand from the Superior Court to determine if the “stewardship of the litigation” deprived DiMonte of her right to due process. At the evidentiary hearing, DiBona had to decide whether Halbert’s activities — namely making telephone calls from the bench, standing on a table to adjust a ceiling heating vent, making gestures, 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. In his opinion, DiBona noted that he reviewed both the trial transcript and the transcript from the evidentiary hearing in their entirety. Before his analysis, DiBona presented a lengthy and in-depth presentation of the evidence displayed at the hearing, including testimony from jurors, DiMonte, DiMonte’s original lawyer, the court reporter and Halbert. The Superior Court, and DiBona on remand, relied on the federal case U.S. v. Mortimer as a guideline. Under Mortimer, “there is no need to demonstrate the prejudicial effect of the absence of the judge from the courtroom, only a need to demonstrate that the structural defect occurred.” In Mortimer, a federal trial judge had left the courtroom during the defense lawyer’s summation. The federal appeals court said that when a judge leaves the courtroom at a “critical stage,” the forum of the courtroom is “destroyed” and a structural defect exists. Under Mortimer, DiBona said, his task was to determine from the evidence gathered whether Halbert was absent during a critical stage in the proceedings. DiBona said the evidence failed to show such an absence. “While this court does not condone the presence of a telephone on the bench in front of a sitting jurist and is even more critical of the use of such telephone for non-court related business, the fact that Judge Halbert answered the phone and spoke briefly thereon … does not qualify as Judge Halbert’s absence from the courtroom at a critical state of the trial,” DiBona wrote. “Likewise, while the judge’s ascending a chair and positioning himself on a table, while garbed in his judicial robe and while being steadied by a juror, in order to adjust a ceiling heating vent to make the courtroom more comfortable for the jurors and the parties present is not what most observers would expect to see in a courtroom, it cannot be said that such conduct amounts to the removal of the judge from the courtroom at a critical stage of the proceedings.” The court noted that the testimony presented at the hearing showed that all of the heating-vent adjustments happened during a recess. DiBona said the only evidence presented that indicated the judge “removed himself from the proceedings,” was when the judge walked to a doorway out of the jury’s sight to hold up a card with the number seven on it to let DiMonte’s counsel know that he had to wrap up his statement. The court said the incident “hardly” qualified as the judge’s removal of himself during a critical stage in the trial. DiBona also noted that all the jurors who testified at the hearing said they were not distracted by the judge and that most said the judge did not leave the courtroom. “In conclusion, this court cannot and does not condone all of the behavior of Judge Halbert in the conduct of this trial,” DiBona wrote. “While some judges would not comport themselves in the same manner as Judge Halbert, it is clear from the record that his actions were motivated by a deep-seated belief that jurors should be treated with a great deal of respect and afforded the proper amount of comfort during their service to the judicial system. “To him, this means climbing on chairs and tables to adjust the courtroom temperature to keep the parties and jurors comfortable. To the extent that this conduct may be deemed unconventional, this court concurs. To the extent that this conduct is alleged to have denied the plaintiff her due process rights to a fair trial, this court disagrees.” Accordingly, after reviewing all the evidence, DiBona said DiMonte did not meet her burden and that the evidence presented did not indicate a structural error or deny her due process rights. The court said the jury’s original verdict should stand.

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