In the Marco Topete trial, J
udge Paul Richardson denied the defense’s motion for a new trial or a new penalty phase, or to strike down the death penalty and impose life without parole after allegedly improperly removing a juror who might have had qualms about imposing the death penalty in this case.
However, the defense has filed a new motion this week, after the California Supreme Court for the second time in a month struck down a death sentence due the improper removal of a juror. The next hearing and sentencing date has been moved to early February, with legal experts mixed, at best, as to whether Judge Richardson ruled properly in this matter.
They further argued that, in her note, “she did not indicate she was having a language problem.” They argued instead, “Her problem was that she was not seeing eye-to-eye with the other jurors.”
It was the court and prosecutor, the defense argued, that brought up the language issue, and in her response she said it was only partially a language problem and that “she had some problem with the ‘nuances’ of the English language.”
In response to claims by the prosecution that the affidavit signed by Juror No.6 contained inadmissible hearsay, the defense argued that this juror’s declaration contained statements of fact about his observation, and they were therefore admissible and not just part of the deliberative process.
The defense added that they introduced Juror No.6’s declaration not for the fact of the matter, but rather to establish that the court had insufficiently examined whether language was at the heart of the reason for Juror No. 11 to ask for removal, rather than disagreement with her fellow jurors on the point of the appropriateness of the death penalty for Marco Topete.
They cited the recent Allen case (People v. Michael Allen and Cleamon Johnson, Opinion S0669339) where the court unanimously reversed both the guilt and penalty phases of a capital case for the wrongful removal of a sitting juror, in which the court ruled: “Great caution is required in deciding to excuse a sitting juror. A court’s intervention may upset the delicate balance of deliberations. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.”
In contrast to the prosecution’s argument that the trial court is allowed a good deal of discretion, they cite Allen in which the supreme court reminds us that it is a “heightened standard,” as the court writes: “The basis for a juror’s discharge must appear on the record as a ‘ “demonstrable reality” ‘ and ‘involves “a more comprehensive and less deferential review” than simply determining whether any substantial evidence’ supports the court’s decision. The reviewing court does not reweigh the evidence but looks to see whether the court’s ‘ “conclusion is manifestly supported by evidence on which the court actually relied. ” ‘ “
The court adds: “This heightened standard is used by reviewing courts to protect a defendant’s fundamental rights to due process and a fair trial, based on the individual votes of an unbiased jury, which are also hallmarks in American jurisprudence.”
The defense reiterated their argument that the court cannot have it both ways, in that they cannot say the excused juror had insufficient grasp of the English language in the penalty phase, but sufficient grasp in the guilt phase.
As they wrote in their motion, “The court cannot have its cake and eat it, too. If Juror No. 11 was impaired from the beginning of the jury selection process as the prosecution successfully argued in having her removed, then she was impaired during the guilt phase of the trial and the deliberations that followed it.”
The prosecution reiterated their arguments from their response motion, where they argued, “Juror No. 11 was properly excused on November 16, 2011, because she was unable to perform her duty as a juror. A trial court has the discretion to excuse a juror and replace her with an alternate when there is good cause shown that the juror is unable to perform her duty, or when a juror requests a discharge and good cause exists.”
Judge Richardson went into great detail to show that Juror No.11, in her representations to the court, offered that she had an insufficient grasp of the English language and argued that under Penal Code section 1089, insufficient command of the English language is a reason for a juror to be rightly dismissed and he believes there is plenty of evidence to back up this contention.
He argued, citing two cases as precedent, that the declaration by Juror 6 was inadmissible and barred under Evidence Code section 1150. He told the defense that they cited no authority under which such evidence could be admitted.
Moreover, he argued that even if the court found that declaration admissible, he would rule that the testimony of Juror No.11 was itself the best source of evidence, as she directly told the court that her difficulties understanding the nuances of law prevented her from carrying out her duties as a juror.
Moreover, he added that Juror No.6’s declaration, even if accurate, does not prevent the possibility that Juror No.11 also had a language issue.
Judge Richardson further noted that it was the defense itself that had admonished the court not to get into issues of deliberation, which he agreed would have been improper.
Furthermore, the issue of language had been brought up at the voir dire of the jury. At that point, they had a lengthy discussion with the juror about her language difficulties and had agreed that she would notify the court if a problem arose. She did not notify the court during the guilt phase, and it was only in the penalty phase that the issue emerged.
Judge Richardson argued that, on that basis, she knew how to contact the court if there were a problem, and he took the absence of such communications as demonstration that there had been no language problem in the guilt phase.
In short, he ruled that the court will not disturb its ruling, and Juror No.6 does not change the court’s decision. Therefore, he said, motion denied.
However, because the defense filed an additional motion at the last moment, based on a new Supreme Court case that neither the prosecution nor Judge Richardson had reviewed, they have extended the sentencing another month, giving the prosecution the opportunity to respond.
The California Supreme Court had not overturned a death sentence in a several years. However, on Monday they handed down their second decision in less than a month, overturning a death sentence – both of them for the improper dismissal of a juror.
This comes on the heels of new Chief Justice Tani Cantil-Sakuaye telling the LA Times, “I don’t think [the death penalty] is working… It’s not effective. We know that.”
California’s death penalty requires “structural change, and we don’t have the money to create the kind of change that is needed,” she said. “Everyone is laboring under a staggering load.”
“I don’t know if the question is whether you believe in it anymore. I think the greater question is its effectiveness and given the choices we face in California, should we have a merit-based discussion on its effectiveness and costs?”
In the most recent court case, the California Supreme Court, as attorney Hayes Gable argued, “ruled that the trial court prejudicially erred when it excused a juror for cause who did not have strong views on capital punishment, but who unequivocally said she could vote for it. As a result, the case was reversed for a new penalty phase trial.”
The court writes, “Defendant contends the trial court erred in granting five prosecution challenges for cause during the death-qualification portion of jury selection. Applying well-established constitutional standards, we agree as to one of the prospective jurors, identified here by her initials, C.O. Because that error requires reversal of the judgment as to penalty, we do not address the propriety of excusing the other prospective jurors defendant identifies.”
The court cites her responses on the jury questionnaire: “On her questionnaire, C.O. indicated she wished to serve and thought she could be an impartial juror because she was unbiased and believed in “[f]airness to the defense and prosecution.” Asked for her general feelings about the death penalty, she wrote she had none, adding that she had thought about the ‘negatives & positives but I came to no conclusions.’ “
The court adds, “We conclude the record does not support the trial court’s finding that C.O.’s views regarding the death penalty would prevent or substantially impair the performance of her duties as a juror.”
“None of C.Oo’s answers on the questionnaire or in voir dire suggested views that would substantially impair her ability to perform her duties by voting to impose the death penalty in an appropriate case,” the court continues, adding: “Her general views on the death penalty were vague and largely unformed, though she thought it sometimes served the purpose of deterrence and so should not be abolished.”
However, they ruled, “But on whether she could vote to impose it, her responses were definite and consistent. According to the questionnaire, she would not vote automatically for life in prison regardless of the evidence; she would not find it impossible to vote for death in every case; she could set aside whatever she had heard about the death penalty outside of court and decide defendant’s punishment based only on the evidence at trial; and she was not a person who, while supporting the death penalty, could not vote to impose it.”
They conclude, “On voir dire, C.O. repeated several times that she could vote for death in an appropriate case. She never wavered on this point, and when the prosecutor expressed skepticism, C.O. reassured her, ‘I am positive that I could.’ “
The Court then went on to state: [Case law] does not stand for the idea that a person is substantially impaired for jury service in a capital case because his or her ideas about the death penalty are indefinite, complicated or subject to qualifications, and we do not embrace such a rule.”
They add, “As the high court recently reminded us, ‘A criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause.’ ” And note that under existing case law, “Personal opposition to the death penalty is not itself disqualifying, since ‘[a] prospective juror personally opposed to the death penalty may nonetheless be capable of following his oath and the law.’ “
The court notes, “It follows the mere absence of strong, definite views about the death penalty is not itself disqualifying, since a person without strong general views may also be capable of following his or her oath and the law.”
The Court continued: “The trial court expressed concern that because C.O. had no strong views on the death penalty and was not sure where she stood on it, she would not ‘stand behind it,’ as she wrote she would stand behind something about which she felt strongly. This concern was misplaced, however, as the role of a capital case juror is not to ‘stand behind’ either penalty but to assess the evidence, weigh the aggravating and mitigating circumstances, deliberate with the other jurors, and choose the appropriate penalty.”
They add: “On her ability to perform this duty, C.O.’s responses were clear and unequivocal.”
In reversing the penalty phase of the trial, the Court concluded that: “[T]he trial court’s finding that C.O.’s views on imposition of the death penalty would prevent or substantially impair the performance of her duties as a juror is not supported by substantial evidence. By erroneously excusing C.O. for cause, the trial court denied defendant the impartial jury to which he was entitled under the Sixth and Fourteenth Amendments to the United States Constitution. (Uttecht v. Brown, supra, 551 U.S. at pp. 6, 9.)”
So in two cases in the last month, the Supreme Court, after its chief justice indicated problems with the death penalty, overturned death penalty cases for the improper dismissal of a juror. Prior to that, the court had upheld 50 death sentences in a row.
Judge Richardson presented what he believed to be solid evidence of Juror No.11’s inability to serve on the jury, but we disagree. The least-influenced piece of evidence was the letter itself, and it never mentioned a language barrier. It is entirely possible that, as we suspected while watching the questioning, the juror simply saw the opportunity and took it.
Moreover, the evidence of Juror 6, at the very least, shows that the court did not sufficiently probe the jurors to see if there were other reasons for Juror No.11 to seek removal.
It is difficult to imagine that an appellate court would uphold Judge Richardson’s ruling, but given the time delays there is probably less personal and professional risk for the judge to stand by his rulings and let the cards fall where they may, five to ten years down the road.
Kevin Pearson was convicted of first degree murder in 1999, when the Allen case was nearly 20 years old. By the time the court gets around to reverse this decision, Judge Richardson will have been long since retired, Jeff Reisig will have moved on, and by then, it is conceivable there will not be a death penalty. Clearly, this was the path of least resistance, even if it appears to be the wrong decision.
—David M. Greenwald reporting
[quote]It is difficult to imagine that an appellate court would uphold Judge Richardson’s ruling, [/quote]
I disagree with your analysis. First of all the two cases you cited are NOT on point with the Topete case. Secondly there is a perfectly good explanation for Richardson’s decision:
[quote]Furthermore, the issue of language had been brought up at the voir dire of the jury. At that point, they had a lengthy discussion with the juror about her language difficulties and had agreed that she would notify the court if a problem arose. She did not notify the court during the guilt phase, it was only in the penalty phase that the issue emerged.
Judge Richardson argued that, on that basis, she knew how to contact the court if there were a problem, and he took the absence of such communications as demonstration that there had been no language problem in the guilt phase.[/quote]
Thirdly, appellate courts give due deference to the trial court’s decision; will not substitute its own judgment for that of the trial court; and will not overturn a trial court’s decision unless there is a CLEAR ABUSE OF DISCRETION by the trial court.
I would make the argument that:
1) The defense had the opportunity to dismiss juror #11 during voir dire in regard to any language problems, and failed to do so. All agreed, including the defense, that if juror #11 had a language problem, it would be sufficient for her to notify the court of any such difficulty.
2) Juror #11 had the opportunity to complain about a language problem in the guilt phase, but apparently had no such problem.
3) Only during the penalty phase did juror #11 have a language problem (by her own words) when jury deliberations became more complicated because of the disagreement over imposing the death penalty and the need to refer to more complex legal documents as opposed to just the spoken word.
4) Judge Richardson accepted Juror #11’s explanation that she had a language problem during the penalty phase, and reasonably assumed juror #11 was being truthful in her assertions. There was no reason to assume juror #11 was being untruthful as to why she was requesting to be dismissed, since the language issue had come up during voir dire and a preset course of action had been laid out what juror #11 must do if any language problems arose during the course of jury deliberations.
5) Juror #6’s claims that juror #11 was making excuses about having a language problem because she was being unduly pressured to invoke the death penalty against her wishes is mere opinion of what juror #6 thought were juror #11’s motivations for requesting dismissal, but is directly contradicted by juror #11’s own words as to what her reasons were.
It is also important to note the appellate court will base its ruling on the existing court record.
[quote]Her problem was that she was not seeing eye-to-eye with the other jurors.”[/quote]
Similarly, I bet the note did [u][b]NOT[/b][/u] indicate the above either!
Elaine:
I think your points have extremely serious problems. The abuse of discretion is the dismissal of the juror, your points don’t seem to reflect that.
Your first point makes no sense because the defense of course wanted the juror to remain on the jury AND in fact argued her dismisal was improper. So to argue that they had the opportunity to remove her during voir dire misses the entire point of this entire discussion.
Point two makes no sense because the fact is that the juror never mentioned language until it was presented to her by the judge. If you believe she left because she disagreed on the penalty phase, then point two makes no sense.
The other point is while you say that the Judge accepted her explanation, the defense I think can rightly turn around and question whether that was sufficiently probed and that is part of where the two SC cases come into play.
DMG: [quote]Point two makes no sense because the fact is that the juror never mentioned language until it was presented to her by the judge.[/quote]
I’m curious if you have a transcript of the day she was dismissed or yesterday? What you say here is certainly the way the defense team argues it. However, and forgive me because I do not remember the exact verbiage, juror 11 did, in fact, say something that led Judge Richardson to believe that language was the issue. No, she didn’t come right out and say that language was the issue. However, she said something, which Reisig brought up and Judge Richardson reiterated yesterday, to directly refute the notion that the court gave her the idea that language was an issue and she took it as the easy way out. She said something that could be interpreted as having problems because of language. I should have brought a notepad to write it down.
This is a good question because it is at the heart of the issue.
So this is the note:
“Your Honor: I was raised in foreign country and it is very difficult for me to make a dessision from point of view of this country. I tried my best, but now I see that I am dragging other juries down. I am asking you to replace me by alternative juror, please.”
Note that she never mentioned she did not understand the language.
The first mention of language was by the DA who argued this was a language issue.
Then we go to the transcript, which was reproduced in the defense motion on the declaration of juror No.6.
The Judge asked after establishing she was from Russia: “And is any of the — is any of the difficulty that you’re talking about here one of understanding the English language?”
She responds: Maybe some nuances of English language”
Judge: “But that isn’t the principal thing that you’re talking about here when you say, it is very difficult for me to make a decision.
It is not based on your understanding of say the jury instructions or the evidence in the penalty phase?”
Her answer: Partially.
It goes on from there. But here are three key points:
1. First mention of Language did not come from the juror
2. She responded partially and the judge never explored that ambiguity
3. He never explored or even asked if disagreements were at the heart of her frustration
I felt at the time, that he gave her an out and she took it. That was even before the other juror came forward. And that she was blaming her lack of English for the fact that they disagreed on the proper penalty.
It’s interesting to note that Judge Richardson seems to have attended a different trial that the one the [u]Vanguard[/u] has been covering all this time. We learn today, for the first time, all of the significant happenings from the trial that the judge reports.
Do you disagree that these events happened in the manner described by the judge? I’d say the earlier [u]Vanguard[/u] reports, by ignoring them and minimizing their importance, led me astray in my evaluations of the case.
To me, this reflects the dangers of relying so much on defense arguments in developing a point of view about any given case. I also had the impression that the [u]Vanguard[/u] covered this case from start to today and, if so, certainly would have observed/reported the important facts about which Judge Richardson wrote.
I don’t want to go any further with this because of my new year’s resolution, but it’s distressing.
With respect to newer case you cite, I agree with Elaine that it’s not on point. The ties (excusing a juror in a death penalty case) are so remote as to be almost insignificant. They’re both death penalty cases, so? A juror was excused in each case, so?
As I see it, the key to the recent Supreme Court case was the concept that the entire trial was unfair because the judge erred in “granting five prosecution challenges for cause during the death-qualification portion of jury selection.”
Assuming the defense “you can’t have your cake and eat it too” contention is true–though it isn’t–the judge’s excusing of No. 11 was based on significant and allowable–though previously unreported here–bases.
Then there’s the new finding that “the declaration by Juror 6 was inadmissible and barred under Evidence Code section 1150” and that, even if allowed, it would carry little weight next to No. 11’s words already on the record and explained by the judge “in great detail….” Any defense ideas on how to deal with that?
None of these comments dispute, however, Chief Justice Cantil-Sakuaye’s wise observations about the death penalty.
[quote]”It goes on from there.”[/quote]Does it go on from there to support what the judge said happened in justifying his denial of Topete’s petition for a new trial. (Somehow, I get the impression that it did not go on to contradict Judge Richardson or you would have included it!)
So, here we are, left with cherry-picking just enough to make your own case and not even allowing us to make up our own minds by evaluating a more complete report. Can you give us a link to the transcript to which you refer? And/or a link to the judge’s decision?
Just Saying: I’m following you, “It’s interesting to note that Judge Richardson seems to have attended a different trial that the one the Vanguard has been covering all this time. We learn today, for the first time, all of the significant happenings from the trial that the judge reports. “
None of this is from the trial, it is all from the special hearing in November where the judge questioned the juror, something we covered at the time. What are you referring to? I’ll get to your other points a bit later.
Just Saying:
link ([url]http://www.yolo.courts.ca.gov/forms/ntc mtn new trial_001.pdf[/url])
“Does it go on from there to support what the judge said happened in justifying his denial of Topete’s petition for a new trial. “
From there she brought up language issues, my concern is as outlined earlier.
I’m not distinguishing between the jury selection process, The Trial, any related hearings or discussions outside the jury’s presence, any arguments made in requesting a new trial–it’s all one package to me. I’m just a little surprised Judge Richardson had so much “new” to back up his decision–i was limited because lots of what he points out I had missed in my previous readings (Vanguard) of whether he’d erred.
Thanks for the link.
Oops, link doesn’t work. Got another?
[quote]Your first point makes no sense because the defense of course wanted the juror to remain on the jury AND in fact argued her dismisal was improper. So to argue that they had the opportunity to remove her during voir dire misses the entire point of this entire discussion. [/quote]
The defense agreed during voir dire to allow juror #11 to notify the judge if she had a problem. She did not during the guilt phase, but did during the penalty phase. Since the defense agreed to the plan, they cannot not now come back and cry foul…
[quote]Point two makes no sense because the fact is that the juror never mentioned language until it was presented to her by the judge. [/quote]
By her own words, juror #11 agreed that language was her problem.
[quote]The other point is while you say that the Judge accepted her explanation, the defense I think can rightly turn around and question whether that was sufficiently probed and that is part of where the two SC cases come into play.[/quote]
The two cases you site are not on point at all with this case, other than they are death penalty cases involving a dismissed juror. That is not enough of a similarity to make them apposite. The judge used his discretion on how much to probe, based on what the woman said. The appellate court will not substitute its judgment for that of the trial court. The appellate court will give the trial judge due deference…
[quote]To me, this reflects the dangers of relying so much on defense arguments in developing a point of view about any given case.[/quote]
Bingo!
“The defense agreed during voir dire to allow juror #11 to notify the judge if she had a problem. She did not during the guilt phase, but did during the penalty phase. Since the defense agreed to the plan, they cannot not now come back and cry foul…”
The defense did not ask that the juror be removed.
“I’m not distinguishing between the jury selection process, The Trial, any related hearings or discussions outside the jury’s presence, any arguments made in requesting a new trial–it’s all one package to me. I’m just a little surprised Judge Richardson had so much “new” to back up his decision–i was limited because lots of what he points out I had missed in my previous readings (Vanguard) of whether he’d erred. “
I had a full article on the Judge’s original decision.
Here is another attempt at the link ([url]http://www.yolo.courts.ca.gov/forms/ntc mtn new trial_001.pdf[/url])
Here we go:
[url]http://peoplesvanguard.com/ntcmtnnewtrial001.pdf[/url]
Just Saying wanted to respond to a few points:
“Do you disagree that these events happened in the manner described by the judge?”
I’ve answered various forms of this question, I think the judge erred three-fold (1) he contaminated his own investigation by focusing so immediately on language rather than allowing the juror to volunteer language as the reason; (2) he failed to probe other possible reasons and (3) he failed to fully probe the issue and independently verify the problem with other jurors
“I’d say the earlier Vanguard reports, by ignoring them and minimizing their importance, led me astray in my evaluations of the case. “
As I linked above, I think your memory is inaccurate here and I covered most of the issues the judge mentioned which also negates your point about relying too much on defense arguments.
“With respect to newer case you cite, I agree with Elaine that it’s not on point. “
I think you are flat wrong here, the questions are ones of process for removing a juror and the burden of doing so and as such the issues mentioned in those two cases are very similar even though the circumstances vary. There is a reason why the defense focused on these cases as well.
“They’re both death penalty cases, so? A juror was excused in each case, so? “
And they both involve the process by which a juror can be excluded. In one case, the judge went much further than Judge Richardson in assessing the underlying issues and the court still ruled it was an abuse of discretion.
The link you provided goes to the defense motion for a new trial. It makes interesting reading, and makes clear that No. 11 repeatedly insisted that language played the critical role in her own evaluation of why she was unable to perform her duties fairly in the penalty phase.
The transcript portion that you toss off as “it goes on” material–unworthy of quoting and considering–shows the juror kept driving the conversation along the language difficulty road and excluded other possibilities when questioned.
You claim the judge contaminated the conversation by asking about language understanding in the first place–with the result that “she just ran with it.” That’s one way to look at it. I’d say she just confirmed his concept and did it again and again in no uncertain terms.
The transcript portion of the defense request also explains why the judge did not pursue and “probe other possible reasons” and “independently verify the problem with other jurors.” It seems clear that following such a course (as you keep demanding he should have) could have improperly affected the jury’s deliberations (as the cases he cited suggested).
You say “there is a reason why the defense focused on these cases as well” when I was talking about just one of them (the one in which the person who was convicted gets another shot because of the extra challenge given the prosecution).
Just because the defense chooses a certain strategy doesn’t make it any more reasonable in my mind. When a defense attorney is stuck with a case like Topete’s, one can’t be too critical if he grasps at any straw that dangles out there.
In spite of what appears to be a well reasoned and thoughtfully written approach, you don’t seem to want to consider the likelihood that Judge Richardson might simply have given his honest and honorable opinion. I think you should give him that, even if you disagee with it, instead of suggesting he’s taking “the path of least resistance” to avoid “personal and professional risk.” In fact, the judge was handed an unusual situation and handled it in a way that seems reasonable.
I would like to add a point that I have not seen addressed so far in the discussion. I question the wisdom of allowing the juror to decide for herself
When she is or is not having difficulty with adequate comprehension of the language. I have many years of experience with bilingual patients and an aware that the greatest room for serious misunderstandings or mistakes is not between people who have no capability in each others language where it is obvious that interpretation is needed. Where serious errors in understanding occur is when one person is conversational, but not fluent in their second language as would appear to be the case here sis demonstrated in the errors in her note to the judge. The very real problem here is that the juror may think she is fully grasping the information, when in fact, she is misinterpreting. I cannot see how it would make any sense to say that a process in which her understanding is judged adequate for the guilt, but not for the penalty phase based on her own recognition, is not tainted.
[quote]I cannot see how it would make any sense to say that a process in which her understanding is judged adequate for the guilt, but not for the penalty phase based on her own recognition, is not tainted.[/quote]
Actually I think it makes a lot of sense. The evidence of guilt was so overwhelming, there was probably little deliberation on that score. Hence any language problem did not surface at the guilt phase of the trial. All the jurors were in agreement, without resorting to documents or much discussion.
However, when the penalty phase came up, suddenly there was a lot of discussion and reference to legal documents, making the language problem a serious issue for this juror. It makes perfect sense to me…
[quote]In spite of what appears to be a well reasoned and thoughtfully written approach, you don’t seem to want to consider the likelihood that Judge Richardson might simply have given his honest and honorable opinion. I think you should give him that, even if you disagee with it, instead of suggesting he’s taking “the path of least resistance” to avoid “personal and professional risk.” In fact, the judge was handed an unusual situation and handled it in a way that seems reasonable.[/quote]
Nicely said. There is a very real danger of losing objectivity when the Vanguard only talks to the defense side. I realize the prosecution refuses to communicate with the Vanguard (and understandably so), but that doesn’t mean that the Vanguard cannot at least make a token effort to be somewhat objective…
ERM
The key phrase in my concern is ” based on her own recognition”. This criteria was apparently agreed upon during the selection process prior to the presentation of any evidence, and therefore well before anyone could have known that “the evidence of guilt was so overwhelming”.
It is the general concept of allowing the English as a second language speaker to decide as a principle that I am questioning, not whether or not Judge Richardson had adequate cause to respect her judgement in this case.
Would any of us really want our judicial fate decided by someone who perhaps did not understand all of “the nuances” of the words being used,but did not recognize that fact as could just as easily have occurred here ?