Nun-Sense: Federal Judge Dresses Up As Nun To Refute Defense Argument And Convict Bank Robber

kennellyphoto48006U.S. District Judge Matthew Kennelly appears to be pushing the limits of judicial notice this week. Kennelly found a defendant guilty after dressing up like a nun to see if her theory held water about determining the race of a bank robber in such an outfit.

Navahcia Edwards, 25, was accused of robbing a bank wearing the nun outfit below. She purchased the masks online after she and her boyfriend reportedly watched the movie “The Town.”

Her defense claimed that the May 2011 robbery of Palos Heights bank was carried out by a white robber, not an African-American. Defense attorney Charles Aron insisted that Edwards (who is African-American) had a fiance, Lyndon Wesley, who robbed the bank with a white accomplice who blackened her face. However, Kennelly decided to pull a Sally Field and dress like a nun in chambers. He promptly reported that he could see the white skin when he looked in a mirror and therefore rejected what he described as Edwards’ “reverse Al Jolson argument.”

A judge doing this type of independent, ex parte investigation is troubling. This is not akin to taking judicial notice that it rained on the day in question. Here the judge is reaching a decision after conducting his own investigatory experiments. What is astonishing is that the case itself has a strong record for conviction and Kennelly weakened it by his own bizarre experimentation. While the appellate court can still find “harmless error” in light of the other evidence in the case, this is not an appropriate function for a judge in a criminal trial in my view.

What do you think?

Source: SF Gate

Kudos: Brenda

25 thoughts on “Nun-Sense: Federal Judge Dresses Up As Nun To Refute Defense Argument And Convict Bank Robber”

  1. The virtues of judicial economy do not permit consideration of inadmissible evidence. Therefore, in the absence of additional competent evidence sufficient to sustain the conviction, Judge Kennelly’s little experiment has guaranteed a new trial for Ms. Edwards. And next time, defense counsel should consider demanding a jury.

    In a bench trial, the judge serves as the trier of fact. But whether the case is heard by the court or by a jury, a judge is not permitted to consider evidence which has not been submitted by the parties.The canons of judicial ethics prohibit judges from ex parte communications (i.e., outside the presence of the parties) in all judicial proceedings, and that includes conducting independent investigations of facts. Due process requires an opportunity to challenge evidence and the confrontation clause requires an opportunity to confront all adverse witnesses. In this instance, the judge effectively made himself a fact witness beyond the reach of cross-examination.

    There are certain exceptions to these restrictions, but none that would appear applicable to this case. State court judges who have done the same thing have routinely been admonished by their state supreme courts.

    1. Thank you, Mike A. Finally a rational legal response to my posts. THAT answers my questions.

  2. Ever notice that the nun in the habit and the judge in the robe, one bangs the ruler, the other bangs a gavel. Think how out of line a Catholic person will be if he grew up in Catolic school getting his knuckles rapped daily for reading the gospel upside down and then gets annoited a judge and is given a hammer. Next they will be giving them a sickle. Bang, bang, bang.

    Here is a twist on the name game song:

    Ruler, ruler bo buler, banna fanna fo fooler,
    Hammer, hammer, bo bammer , nanna fan fo fammer.
    If the first two aholes are ever the same, you shoot them both
    and say the name, like Nun, Nun f ing f o Nun or
    Barry Barry, is contrary…..

  3. This is entirely inappropriate. A judge taking on the prosecutorial role in making not just the factual determination of guilt but in taking affirmative ex parte action to produce the evidence that he used to decide on a conviction! (assuming there was no jury; with a jury, this is preposterous action that should be sanctioned).

  4. As a non-lawyer,I find it very discomforting for any judge to essentially (1) take over the prosecution of the case and do it (2) based upon his/her theatrics and invalid assumptions. But as we see increasing negative changes in the “legal” actions of police and judges, I worry that it won’t be long before this starts to become the norm. Will the pendulum finally begin to swing back the other way after that?

  5. Yo, seamus: Think about the judicial robe thing. It is very close to a habit. A nun’s outfit is called a habit. About the only difference is the judge does not have the vibrator concealed under the robes. Usually not.

  6. Was this an exhibit from the trial…or does His Honor have a selection of ladies’ costumes in chambers. Inquiring minds want to know.

  7. RandyJet: My point is that his conclusion is illogical. The details of whether it was a bench or jury trial are irrelevant, he made an illogical conclusion, based on an illogical presumption that if he couldn’t hide his own white skin, nobody else could either. It was further a stupid argument, because his white skin was visible in a mirror, so he presumes a person disguising themselves to rob a bank would not look in a mirror to check their disguise!

    It is pure egoism, essentially the presumption that he is the best makeup and disguise artist in the world so if he couldn’t pull it off, nobody else could either.

  8. Mike, Dredd, Tony,

    This may not come as a surprise to you but many, many judges take an active role in prosecution of cases…. So how do you change it even when they are not appointed for life….

  9. His conclusion is flawed, whether he could see his own incompetent makeup work, knowing his own race, says nothing about what any witness could have seen.

    The defense argument is that a white accomplice blackened her face behind a mask; it is essentially claiming that witnesses could not be relied upon to correctly report the race of the second robber, and the defendant was asserting that her boyfriend had a white accomplice that successfully pretended to be a black accomplice. Therefore she was being convicted by association; just for buying the masks (I presume she could say they were for a Halloween party in which she intended to portray characters from “The Town”), being a black female, and having a black boyfriend that decided to try the real thing with a white, female bank robber.

    The judge can’t say the (supposed) white accomplice could not have covered all of her white skin with makeup; certainly if somebody was doing that and ALSO looked in the mirror, and saw their own white skin, they presumably would have blackened any patches they saw. The bank robber has hours to disguise themselves, the witnesses are panicked, in fear, and have seconds to notice any details.

    Robbers wear masks and disguise their identity on purpose, they work toward creating doubt about their identity. This judge should be fired, taking his own word for an obviously flawed “investigation” makes him too stupidly non-analytic to be on the bench, or indeed trusted with anything that requires reasoning.

    1. The fact is that this was more than likely a bench trial since the judge did this in chambers, and I can see no way in a jury trial he could pass that info on to the jurors, unless it was in the instructions to the jury. In that case, defense would have strenuously objected to including such a statement. So absent more information, it is too little for me to make any judgement on what he did.

    1. I would agree that the judge acted wrongly IF this was a jury trial. From what I gathered in the article I assume it was NOT. If it was a bench trial, then what he did is no different from a jury weighing evidence and testing different scenarios.

  10. The judge must’ve been bored and foolish. Perhaps a cross-dresser as well. This is an issue for appeal.

  11. Yeah, still a little confused a to what there is to get all in a fuss about here. Turley can either be right on the money in his righteous indignation or miss the mark sometimes.

  12. I agree Mike. I’d also say from that picture there is not way to determine the color of the perp. Unless they have some better evidence against the guy he did not get a fair trial.

    We had a case in Minnesota a couple years back with a while guy made himself up to look black. He got away with a series of bank robberies but was eventually caught. I think someone got his license number or something. If I can find the story I’ll drop a link here. Its a clever way to throw the police off the trail.

  13. “… this is not an appropriate function for a judge in a criminal trial in my view.”

    Yep, the trier of fact should only try the facts presented by the prosecution and the defense, so as not to appear biased, thereby violating due process.

    It reminds me of the old movie with Henry Fonda about a jury that did the same thing.

  14. I believe the Judge was wrong. Disproving the Defendant’s defense theory rests with the prosecution, not the Judge. Playing detective does not go with judicial robes.

  15. I don’t think the judge did anything wrong by testing the defense contention since I assume it was NOT a jury trial, but a bench trial. So acting as jurors might, he had every right to test the contention of the defense.

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