CLAY JUDGE ADMONISHED; NEW TRIAL GRANTED

State Supreme Court justices admonished a Clay County judge for not
remaining impartial and neutral in a methamphetamine case, granting
defendant Gerald Mark Thompson Jr. a new trial in an opinion last week.

The court found that Circuit Judge Richard A. Facemire "abandoned his
role of impartiality and neutrality and that his role in both
questioning witnesses and making comments to aid the prosecuting
attorney in the presentation of the state's case seriously affected
the fairness, integrity, and public reputation of the judicial
proceedings," Justice Larry Starcher wrote for a unanimous court.

"We also find that the judge's conduct in this case weighed in favor
of the state's case to the point that the judge's partiality became a
factor in the determination of the jury to such an extent that the
appellant did not receive a fair trial," he wrote. - advertisement -

State Police troopers and Clay County sheriff's deputies were called
to Thompson's residence in April 2004 because of shots fired. During
a search of Thompson's residence, they discovered a small wooden
barrel containing a small sealed Mason jar with a length of clear
tubing extending out of the jar through a seal. The officers believed
there were chemicals inside the jar.

Thompson was later indicted by a Clay County grand jury and convicted
of making meth after a trial before Facemire in September 2005. He
was sentenced to two to 10 years in prison.

But Starcher noted during the course of the trial, Facemire
"conducted extensive questioning of many of the witnesses."

In all, the judge asked about 180 questions of trial witnesses.

Facemire asked 83 questions to one State Police trooper, many the
prosecutor had already questioned him about, and more than 20 to
another. During that time he also referred to the chemicals found as
"meth" or "methamphetamine," the court noted.

He had more questions for defense witnesses, asking Thompson seven
questions, his mother 47, his wife 13 and another witness 11.

"The orderly conduct of criminal trials requires that the trial judge
be extremely cautious not to intimate in any manner by word, tone, or
demeanor, his opinion upon any fact in issue," Starcher wrote.
"Regardless of the intentions of the judge with his questioning of
witnesses and prompting in this case, the actions of the judge in
this case compel reversal."

The court also went so far as to overrule the "plain error doctrine."
Argued by the prosecution, it generally says a person cannot appeal a
case on grounds the defense did not raise objection to at the time of
the trial.

Thompson's lawyer, Clay attorney Jerome Novobilski, did not object to
the judge's questions and comments at trial and raised only two of
those issues on appeal.

But the court also noted it can go beyond that rule on rare occasions
where there is an error that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.

"Although counsel for the appellant failed to raise contemporaneous
objections to the plethora of questioning by the judge or to his
comments, we find the judge's role to be of such magnitude as to
justify a review upon a plain error analysis," Starcher wrote.

Novobilski was not available for comment Friday.

Facemire also seemed to be questioning the credibility of defense
witnesses, Starcher wrote. "The credibility of witnesses is also a
question for jury determination," he wrote.

The court decided Facemire's actions influenced jurors.

"We do not believe that it is necessary to pry into the mind of the
trial judge or to speculate as to his motives in asking questions or
making comments during the trial," Starcher wrote. "We need only to
view the judge's conduct from the perspective of the members of the jury."

Thompson had raised other objections, including whether the state's
meth law that allows for arrests when a person has meth-making
materials and not the drug itself is constitutional.

But the high court declined to consider that or other issues, saying
Facemire's conduct was enough grounds to order a new trial.

"In a criminal trial, when a judge's conduct in questioning witnesses
or making comments evidences a lack of impartiality and neutrality,
or when a judge otherwise discloses that the judge has abandoned his
role of impartiality and neutrality as imposed by the Sixth Amendment
of the United States Constitution, we will reverse and remand the
case for a new trial," Starcher wrote.