The Louisiana Supreme Court has issued an interesting ruling for a new trial for two medical malpractice plaintiffs due to the conduct of Judge Timothy Ellender — conduct described as “bizarre and disturbing.” This is not the first such finding of improper conduct by Ellender, though there was a dissent based on the evidence cited for this conduct in the medical malpractice trial.

The details of the conduct appear in the concurrence by Chief Justice Bernette Johnson:

In my view, it is undisputed that Judge Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury’s verdict cannot be allowed to stand. According to plaintiffs, Judge Ellender failed to preside over the trial from his position on the bench, but rather roamed around the entirety of the courtroom during much of the trial. Judge Ellender would stop and look out of the windows in the courtroom while plaintiffs’ counsel was examining witnesses. Judge Ellender continuously moved around the courtroom, sitting in various chairs, and, inexplicably, sat in the jury box with the jurors while eating candy – all during witnesses’ testimony. The record also contains uncontroverted testimony from the plaintiff that Judge Ellender greeted the defense medical expert, defendant’s medical partner, with a handshake and embrace in front of the jury. Additionally, although neither counsel asked plaintiffs’ medical expert, Dr. Leo Murphy, any questions regarding his fees and expenses during the trial, after Dr. Murphy was released Judge Ellender took it upon himself to question plaintiffs’ counsel about the costs paid to Dr. Murphy in the presence of the jury … Judge Ellender’s insidious actions of leaving the bench, wandering around the courtroom, looking out the windows, eating candy and otherwise failing to pay attention to the proceedings communicated to the jury in a non-verbal way his opinion that the trial was not serious and could be treated as a joke.

The dissenting judges raised an interesting question about the evidence needed to support such a finding. In his dissent, Judge Crichton explained:

Although the majority finds that there is sufficient evidence in the record establishing that the trial judge’s actions during the jury trial of this matter resulted in a miscarriage of justice, in my view, the trial record is devoid of any specific evidence documenting the trial judge’s alleged behavior. Counsel for both parties conceded that they personally did not witness much of the alleged behavior, as it was “behind” them in a large courtroom. As a result, the only “evidence” presented at the post-verdict motion hearing is set forth by the jury foreperson in her arguably inadmissible affidavit and the self-serving testimony of one of the plaintiffs. Plaintiffs’ counsel has also offered little explanation as to why he did not issue subpoenas or compel testimony of others who were in the courtroom during trial to testify regarding the judge’s behavior (such as the bailiff, deputy clerk of court, court reporter, or even Judge Ellender), when the trial judge’s alleged actions are paramount to the plaintiffs’ claims of prejudice resulting from his behavior. Consequently, in my view, there is insufficient evidence to warrant a second bite at the apple.

Adding to this incredible record is the reason why the dissenting judges objected to the single affidavit:

As Justice Weimer observes in note 3 of his dissent, the presence of this affidavit in the record is curious and likely improper. It was not officially admitted into evidence, but was attached to a supplemental memorandum on the day of the hearing on the motion for new trial, and was not objected to by defense counsel, who stated at oral argument he was “asleep.” Although it was later introduced at another hearing, defense counsel, apparently still “asleep,” again failed to object, mistakenly believing the affidavit was already in the record. Nevertheless, I find that La. C.E. art. 606(B) prohibits consideration of this affidavit.

Not exactly the proudest moment for the Louisiana bar — lawyers and judges alike. One could ask how a lawyer could repeatedly fall aside in a courtroom without the judge acting in response to the misconduct.

Ellender is well known to bar officials, it appears. The concurrence notes:

In re Ellender, 09-0736 (La. 7/1/09), 16 So. 3d 351 (Judge Ellender suspended for thirty days without pay due to his failure to treat a pro se petitioner’s application for protection from domestic abuse seriously, and acting in a condescending and demeaning manner towards her); In re Ellender, 2004-2123 (La. 12/13/04), 889 So. 2d 225 (Judge Ellender suspended for one year, without pay, with six months of that suspension conditionally deferred as a result of his conduct in appearing in public, at Halloween party, in costume with afro wig, black face makeup, and prison jumpsuit).

Ellender was reprimanded for the appearance in black face. Coverage at the time said dryly “Ellender testified before the Judiciary Commission that he did not get the reaction he wanted from the costume when he showed up to the party without the black face paint.” He also attracted national criticism for belittling a woman seeking a protective order, calling her petition “crap.”

While I understand the evidentiary concerns of the dissenting judges, it seems equally clear that Ellender lacks the judicial temperament and judgment to remain on the bench.

What do you think?

Here are the opinions: Ellender decision