Ex Parte Communications of Judge to Determine Whether Defendant Is Competent to Stand Trial or Malingering Requires New Trial

State of Vermont v. Gokey, 2010 Vt. 89, 2010 LEXIS 90 (October 8, 2010)

The Vermont Supreme Court ordered a new trial for a defendant charged with lewd or lascivious conduct with a child and a habitual offender after the presiding judge talked ex parte with a pharmacist and two deputies who transported the defendant to court to determine whether he was malingering.

On the second day of trial, the defendant appeared in court but complained of being ill and did not look well. At the defense attorney’s request, the case was continued for the day and he was transported to the emergency room where he was administered anti-seizure medications for an existing seizure disorder. The following day the defendant appeared in court but was still groggy and sleeping at counsel table. His attorney asked for a continuance on the grounds that the defendant was unable to assist her with his defense and was incompetent to proceed. The court granted a 30 minute continuance while the defense attorney attempted to obtain medical information from defendant’s physicians and the emergency room treatment providers. The judge in the meantime called a pharmacist at Walgreens to determine what the side-effects of the medication might be and then, without informing the defendant’s counsel or the prosecutor, questioned the transporting deputies in her chambers to determine defendant’s behavior in their presence. Determining on that basis that the defendant was malingering, the judge proceeded with the trial with the jury returning a guilty verdict that afternoon. The Supreme Court ordered a new trial stating that the judge had stepped out of her role as an independent arbiter and become a witness in the case which severely prejudiced the case and impaired any appearance of neutrality.

Found in DMHL Volume 30 Issue 4