Judge’s ‘Racist, Sexist’ Jokes Did Not Undermine Death Case

Friday, May 8, 2026

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Ninth Circuit:

Judge’s ‘Racist, Sexist’ Jokes Did Not Undermine Death Case

Opinion Says ‘Inexcusable’ Comments Were Not So Egregious That They Rendered Trial Unfair, Rejects View That Failure to Conduct Proceedings With Dignity Rises to Due Process Violation

By Kimber Cooley, associate editor

The Ninth U.S. Circuit Court of Appeals yesterday affirmed the denial of a death row inmate’s federal petition for habeas corpus based on 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, describing the crime as “horrendous” and involving “dastardly conduct,” and quipping that “everyone should believe in the death penalty.”

In a per curiam opinion signed by Circuit Judges Mark J. Bennett, Lawrence VanDyke, and Holly A. Thomas, the court declared that, while some of the comments were “inexcusable,” when viewed in context, they did 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 said:

“The question is…not how we would rule in an exercise of supervisory power—there is no question that we ‘lack such authority with respect to state courts.’…The question is whether the trial judge’s comments, isolated within thousands of pages of transcript, were sufficiently grave, antagonistic, or adverse to [the defendant] that they require the conclusion that Burney’s trial was rendered fundamentally unfair or that they can sustain a judicial misconduct claim. When we consider the trial judge’s comments in the context of the entire trial, we cannot reach that conclusion.”

1992 Slaying

Petitioning for habeas relief was Shaun Burney, who was accused of killing a 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 them.

Prosecutors charged Burney with first-degree murder and having committed the crime during a robbery and kidnapping. During jury selection in the 1994 trial, Orange Superior Court Judge Robert R. Fitzgerald (retired) told the prospective jurors that he has “a weird sense of humor” and pre-apologized for “offending anyone.”

He proceeded to quip that “I wish there were ladies in my past that…thought that way” in response to a female prospective juror’s remark that she would follow that law because she “[couldn’t] imagine that you would do anything that I wouldn’t go along with,” and suggested that a male panelist was doing his wife’s work when he indicated that he typically made breakfast, did the food shopping, cooked dinner, and washed the family dishes.

When another prospective juror said that she could follow the law despite a personal distaste for the death penalty, he proceeded to say that “everyone should believe in” the sanction because it is the law of the state

Additional Remarks

After the prosecutor mistakenly referred to the medical examiner as “Dr. Fukumoto” instead of “Dr. Katsuyama” during closing argument, Fitzgerald commented that “I know they all look alike, but you still have to get the names straight.” When the foreperson informed the court that the jury was struggling to reach a consensus on some issues, he said:

“You are still the foreperson; is that correct? In other words, they haven’t lynched you or anything like that?”

After a jury returned a guilty verdict and found true the special circumstances allegations, Burney was sentenced to death on May 25, 1994. 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, District Court 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.” In the order, Aenlle-Rocha said:

“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.”

Bennett, VanDyke, and Thomas noted:

“A petitioner seeking a [certificate of appealability] on the denial of constitutional rights ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ”

Lawyers with the Attorney General’s Office argued that, because the California Supreme Court denied the judicial misconduct claims on the merits and on procedural grounds, the deference afforded to the state decision under the Antiterrorism and Effective Death Penalty Act of 1996 applies to some allegations, and the Ninth Circuit is procedurally barred from reviewing others.

Saying that “[d]eciding whether Burney has procedurally defaulted his judicial bias and misconduct claims would require the resolution of several complex preliminary questions,” the judges declined to tackle the question and wrote:

“We…exercise our discretion to proceed directly to the merits of Burney’s judicial bias and misconduct claims.”

Pointing out that “[t]he Supreme Court has found judicial bias where a judge had a personal or direct interest…in the proceedings,” they concluded that “Burney’s allegations do not meet the bar set by these cases.”

They opined that “the judge’s remarks describing the crime as ‘very horrendous’ and the potential penalty as ‘a very difficult possible punishment…’ were made at a time when the judge was emphasizing that being a juror on this case was a serious matter” and that “the judge’s description of the crime as ‘dastardly conduct’ for which the jurors must suppress their ‘revulsion,’ came in the context of…questioning…whether [a potential panelist] could be fair.”

Adding that the “comment that ‘[e]verbody should believe in’ the death penalty, also did not reflect bias when examined in context,” they said:

“Burney does not explain how these comments, when examined in the context in which they were made, demonstrate that Judge Fitzgerald held an intolerable risk of bias against Burney and in favor of the death penalty.”

Arguing that the comments, taken as a whole, violated his due process rights, the defendant cited the 2010 U.S. Supreme Court decision in Wellons v. Hall, in which the high court said:

“From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”

The panel responded:

“Even if this statement were not dicta, Wellons.…involved far more egregious allegations of misconduct, including ex parte contacts between the judge, jury, and bailiff, as well as inappropriate juror gifts….Nothing like that is present here. And Wellons did not hold that any failure by a trial judge to conduct proceedings with dignity and respect necessarily rises to the level of a Due Process violation.”

Saying that, “[f]or a general judicial misconduct claim on habeas review, ‘we must ask whether the state trial judge’s behavior rendered the trial so fundamentally unfair as to violate federal due process…,’ ” they declared that Fitzgerald’s “comments and behavior, although at times inappropriate, are less egregious than in other cases in which federal appellate courts have rejected judicial misconduct claims on habeas review.”

They explained:

“Here, the trial judge did not take over the questioning of any witness and did not openly criticize or express frustration with Burney or his counsel. And although some of the judge’s comments—including some made to jurors— were informal, or even insensitive, Burney has not explained how they were adverse to him or rendered his trial unfair…. Indeed, the trial judge emphasized several times that his jokes and banter should not minimize the seriousness of the case or the jurors’ roles.”

Bennett, VanDyke, and Thomas added:

“[O]ur holding should not be taken as condoning or minimizing the trial judge’s remarks during Burney’s trial. The trial judge’s comment that ‘they all look alike’ was inexcusable and had no place in a courtroom. So, too, was the judge’s quip that the foreperson had not been ‘lynched’ by his fellow jurors. Other instances of the trial judge’s commentary also contributed to a troubling lack of seriousness during a very serious case. Yet, again, ‘[t]he only commands that federal courts can enforce in state courts are those of the Constitution.’ ”

The case is Burney v. Broomfield, 22-99002.

During his tenure on the Orange Superior Court, Fitzgerald, who retired from the bench in 1997, was no stranger to controversy. He was called out by Div. Three of the Fourth District Court of Appeal more than once for making undignified statements to defense counsel.

In 1988, the California Supreme Court, in the People v. Melton decision, said some of Fitzgerald’s comments during the underlying proceedings “[fell] short of the intemperate or biased judicial conduct which warrants reversal” but that the court did not “condone” the remarks.