PASADENA, Calif. — The Ninth U.S. Circuit Court of Appeals ruled May 8 that a former Orange County Superior Court judge’s racist and sexist jokes during a capital murder trial were “inexcusable,” but did not rise to the level of a constitutional violation requiring reversal of the death sentence.
The federal appeals court denied death row prisoner Shaun Burney’s habeas corpus petition, rejecting allegations “that the ex-Orange Superior Court judge presiding over his trial violated due process principles by making what the petitioner characterized as racist and sexist jokes.”
Circuit Judges Mark J. Bennett, Lawrence VanDyke and Holly A. Thomas signed a per curiam opinion recognizing some of the comments as “inexcusable,” but concluding that, when viewed in context, “they did not demonstrate bias against the defendant or in favor of the death penalty, and did not render the proceedings so fundamentally unfair as to amount to a due process violation.”
Bennett, VanDyke and Thomas wrote that the judge’s comments lacked professionalism and respect, but said the defendant was not treated in a manner that rendered the entire trial unfair.
Shaun Burney petitioned for habeas relief after being accused of killing 21-year-old college student Joseph Kondrath in 1992. “According to police, the defendant admitted that he and two accomplices took Kondrath hostage, forced him into the trunk of his car, and Burney eventually shot the victim after the three men grew concerned that he could identify Shaun Burney and his accomplices.”
Prosecutors “charged Burney with first-degree murder and having committed the crime during a robbery and kidnapping,” according to court records. During the 1994 trial, Orange County Superior Court Judge Robert R. Fitzgerald, who is now retired, pre-apologized to jurors for possibly offending them with what he described as his unusual sense of humor.
Fitzgerald quipped, “I wish there were ladies in my past that…thought that way,” responding to a female prospective juror’s statement that she would follow the law because “she couldn’t imagine that you would do anything that I wouldn’t go along with.”
The judge also remarked that one male juror was doing “his wife’s work” after the juror indicated that he made breakfast, shopped for food, cooked dinner and washed dishes.
Judge Fitzgerald additionally stated that “everyone should believe in” the death penalty after another juror said she could follow the law despite personally disliking capital punishment.
During closing arguments, the prosecutor mistakenly referred to the medical examiner as “Dr. Fukumot” instead of “Dr. Katsuyama.” Fitzgerald responded, “I know they all look alike, but you still have to get the names straight.”
When the jury foreperson later informed the court that jurors were struggling to reach consensus on some issues, Fitzgerald asked, “You are still the foreperson; is that correct? In other words, they haven’t lynched you or anything like that?”
Burney was sentenced to death May 25, 1994, after the jury returned a guilty verdict. “The California Supreme Court affirmed the judgment in 2009 and denied two successive petitions for habeas corpus, the last one in 2016.”
On Feb. 8, 2022, U.S. District Judge Fernando L. Aenlle-Rocha of the Central District of California “denied a federal petition and issued a certificate of appealability as to a single question, whether ‘the judge’s remarks denied [Burney] a fair trial.’”
Aenlle-Rocha wrote, “While ‘Petitioner does not present authority to show that a judge’s racist remarks, not directed toward the defendant or the defense case, can deprive the defendant of a fair trial’…, or that a jocular remark about lynching during a capital trial can do so, the issues deserve encouragement to proceed further.”
The Ninth Circuit explained that the legal standard governing habeas review is extremely high and requires a defendant to prove that the judge’s remarks rendered the trial fundamentally unfair.
The judges acknowledged that judicial bias can violate due process in some circumstances, particularly where a judge has a personal stake in the outcome of the case. However, the panel concluded that “Burney’s allegations do not meet the bar set by these cases.”
The court ultimately determined that, while Fitzgerald’s comments were inappropriate and offensive, they did not amount to a constitutional violation warranting reversal of the conviction or death sentence.
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