Metropolitan News-Enterprise


Thursday, January 28, 2021


Page 1


Court of Appeal:

Judicial Misconduct in Bolstering Case for Prosecution Requires Reversing Conviction


By a MetNews Staff Writer


The First District Court of Appeal has reversed a conviction for first degree residential burglary that was predicated on virtually nothing other than fingerprint evidence because the trial judge furthered the People’s case by effectively communicating to jurors, through his questioning of the prosecution’s fingerprint expert, that they should read something into the fact that the defense did not call its own expert to contradict her conclusions.

Tuesday’s opinion by Justice Ioana Petrou of Div. Three accuses Solano Superior Court Judge Daniel Healy, a former criminal defense attorney, of “usurping the role of the prosecutor” by eliciting testimony by the California Department of Justice’s latent print analyst Vivian Zhang that was harmful to the defense.

Petrrou proclaimed that Solano Superior Court Judge Daniel Healy committed “prejudicial judicial misconduct” in connection with his questioning of Zhang, bolstering the effect of her testimony and minimizing the defense lawyer’s effort to poke holes in her conclusion.

Healy was publicly admonished by the Commission on Judicial Performance on Nov. 5, 2014, for persistent misconduct as a family law judge, and was moved by the court out of the Family Law Department.

In her opinion reversing the conviction of Malik Williams, Petrou pointed to various instances where Healy blocked questions to Zhang on cross examination, answered for her, or ridiculed the question, and where, in particular, the judge personally questioned her to bring out the point that the defense did not produce an expert in rebuttal.





One question Healy asked Zhang was:

“So, if I wanted to do the same thing, if I wanted to take these two fingerprints and compare them myself, if I wanted to hire someone to do it, they could—they can review the very same thing that you reviewed, correct?”

She answered in the affirmative.

In moving for a mistrial based on that, the alternate public defender representing William said:

“The court was implying as if the defense had an obligation, maybe it should have compared the prints of [defendant] with an expert of their own, and I think that is misleading to the jury and I think it’s denying my client due process of law and implying as though there’s something for the defense to prove, when there’s not.”

Healy responded:

“I didn’t say by whom. I said it could have been.”

Petrou noted:

“The only parties to the case were the prosecution and the defense.”

She went on to say:

“The only import of the trial judge’s question was that defendant could have hired an expert, but did not do so.”

Interrupting Cross-Examination

Petrou said that Healy’s cross-examination of Zhang also reflected an “alignment” with the prosecution. She noted that he “interrupted the defense’s cross-examination at least a dozen times with its own questions and sua sponte objections” and reinforced her credibility with questions that minimized alleged defects in procedures that were followed in determining that the fingerprints were those of the defendant.

Prior to Zhang testifying, Healy denied a motion to exclude or limit her testimony, saying:

“One, either you’re inadequately resourced and didn’t spend the money to hire your own expert [to] flesh these things out. Or secondly is just smoke and mirrors on day two of trial. At this point I’m not finding you’re going anywhere near a basis for me to preclude this witness from testifying or to limit her testimony.”

In responding to the motion for a mistrial, Healy told the alternate public defender:

“I made comments early about a lack of resources of your office....Your former boss, Mr. [Roberto V.] Najera left about a month ago. We could have a detailed discussion as to that, as to why the main Public Defender is now leaving now. As to why multiple grand juries are investigating your office. We could have a discussion about all of those things.”

(Najera, as the county’s chief deputy public defender, headed the Office of Alternate Public Defender.)

No Relevance

Petrou said of Healy’s digression:

“None of these matters, whether the departure of the Public Defender or ‘multiple grand juries’ or the decision not to hire a defense expert, had any relevance to the question before the court, which was whether his questioning of the fingerprint expert was improper.”

It was improper, she said and, moreover, was prejudicial. The jurist noted that the only evidence linking Williams to the crime other than his fingerprints lifted at the scene of the burglary was that the owner of the premises, when he arrived home saw two African American males in the adjacent alley, and Williams is African American.

“Accordingly, this case turned on the jury’s assessment of the accuracy and reliability of the fingerprint analysis conducted by Zhang,” Petrou said, adding:

“On this record, and resolving any ambiguity in defendant’s favor, we conclude that the trial court’s questions were prejudicial.”

Instruction Not Curative

She declared:

“The trial court’s instructions to the jury that it ‘not speculate about anything that I think about the facts or about this case’ and that the court’s questions were only relevant ‘to the extent they help you understand the answers’ do not alter this conclusion. While we must assume that the jury followed its instructions…, these instructions do not dispel the prejudice that was created by the trial court’s questions….The prejudice here does not stem from the jury speculating as to the court’s views or by treating the court’s questions as evidence. It stems from the substance of the testimony elicited by the trial court that carried the clear implication that defendant could have, but failed to, hire an expert.”

The case is People v. Williams, 2021 S.O.S. 326.

CJP Action

The Commission on Judicial Performance, in reprimanding Healy in 2014, said:

“Judge Healy made multiple denigrating and undignified comments to family law litigants, most of whom were unrepresented by counsel, in multiple proceedings. And, in one case, he engaged in misconduct reflecting, at a minimum, the appearance of embroilment.”

It commented:

“Referring to litigants as ‘rotten,’ ‘stupid and thuggish,’ and a ‘total human disaster,’ and telling litigants their child ‘might as well start walking the streets as a hooker,’ is the antithesis of imparting the importance of respect.”

The judge took office on Jan. 3, 2011. He is up for reelection next year.


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