Appeals Court Critical of Judge

An appeals court Thursday overturned the assault convictions of two members of south Orange County’s “Slick 50s” gang, saying a judge deprived them of a fair trial by repeatedly criticizing the defense in front of the jury.

The ruling by the 4th District Court of Appeal in Santa Ana voids prison sentences handed to Jesse Grist and Joshua Carlsen for a beating and stabbing at a 1998 party in Aliso Viejo.

Although the appeals court accused Grist’s lawyer of making critical mistakes during the trial, it reserved its harshest criticism for Superior Court Judge Robert R. Fitzgerald.

The judge made his own objections to testimony 95 times during the trial and made 37 condescending or flippant comments to defense lawyers, the appeals court noted.

By attacking the defense lawyers, the judge left the jury with the impression that he did not believe their case, the court said.

At one point during the trial, Fitzgerald criticized a defense lawyer’s questioning of a witness. “That’s such a misstatement, it’s unbelievable. . . . Start over again, and let’s get it right,” the judge said.

Later, Fitzgerald spoke up when a defense expert witness said he was being paid to testify.

“Probably wouldn’t be here if you weren’t being paid. We wouldn’t get any answers out of you,” the judge said.

Victim Was Beaten, Stabbed

Though judges have wide leeway in their courtrooms, they are discouraged from giving the appearance of playing favorites, said Brent Romney, a former Orange County prosecutor now teaching at Western State University College of Law in Fullerton.

By making dozens of objections to defense questions, Fitzgerald was sending the jury a message, Romney said.

“That’s an amazing number of court-interposed objections and the clear inference to the jury would be that the judge doesn’t think much of the evidence the defense is trying to produce,” Romney said.

Grist and Carlsen were among five defendants convicted of an attack that seriously injured a 17-year-old boy. The victim was beaten with a beer bottle, stabbed and repeatedly punched and kicked.

The victim was left with permanent scars on his face.

Prosecutors said Thursday they will probably try both men again.

Appealed Focused on Judge’s Conduct

What made the trial particularly novel was the prosecution’s theory that the defendants were acting as part of a criminal street gang.

Prosecutors maintained that the boys’ common taste in vintage ‘50s clothing and music was evidence that they were operating like a gang. Defense lawyers described the group as nothing more than boys with common interests, no different than many high school cliques.

But on appeal, the gang affiliation was not the issue, but rather the conduct of Fitzgerald, a retired judge who is paid a daily fee to hear cases in Orange County.

It became clear early in the trial that he would have a contentious relationship with Grist’s lawyer, Anthony Sessa.

The judge interrupted Sessa’s opening statement, saying, “You want to tell us what you are going to prove, Mr. Sessa, rather than all this argument.”

“Thank you, your honor,” Sessa replied.

“You are welcome. Glad I could help you,” the judge said.