Tuesday, July 1, 2003
Panel Overturns Arson Conviction, Says Questioning by Judge McKay ‘Intemperate’ and Suggestive of Bias
By a MetNews Staff Writer
A man convicted of setting fire to his wife’s home after she obtained a restraining order against him has been granted a new trial by this district’s Court of Appeal, which said the trial judge gave the appearance of being partial to the prosecution.
Justice Daniel Curry, writing Friday for Div. Four, said Los Angeles Superior Court Judge Chesley N. McKay Jr. engaged in four instances of prejudicial misconduct that had the cumulative effect of depriving Grail W. Perkins of a fair trial on charges of burglary, arson, making terrorist threats, and violating a domestic violence restraining order.
Prosecutors said the 1999 incident was a result of an escalating series of arguments after Madiha Fields, who had married Perkins the year before, purchased the Altadena house in her own name with separate funds. Fields obtained a TRO, with a move-away provision.
There was evidence that Perkins was angry after being served with the order, and sheriff’s deputies had to persuade him to leave the house. Hours later, after Fields changed the locks, Perkins came back, kicked in the door, came in holding a gas can, and was about to set the fire when Fields and her daughter from her first marriage exited, according to testimony.
Perkins denied the charges. He suggested Fields may have set the fire to collect insurance proceeds, and presented alibi testimony that he was at the Pasadena courthouse—watching another domestic violence hearing and hoping to talk to the judge about the restraining order in his case—at the time of the fire.
In the most serious instance of misconduct, Curry wrote, McKay questioned Perkins about his claim that he did not drive by his wife’s house on the afternoon of the fire, even though he was in the area.
When he testified he did not want to violate the restraining order, McKay responded that “it didn’t bother [him] earlier in the day.” Curry called that comment “a particularly egregious example of bias against appellant and partiality towards the People,” and said McKay was attempting to create an inference that Perkins had not driven by the house because he had set the fire and knew it had burned down.
The justice also faulted McKay for having questioned Perkins extensively about his claim to have been at the courthouse at the time of the fire. The prosecution contended that Perkins could have set the fire and still gotten to the courthouse—a drive of between 11 and 20 minutes—in time for the hearing.
To support that position, the prosecution presented testimony from a bailiff who said that Perkins had to have arrived in the courtroom sometime between 3:35 and 4 p.m. Witnesses said the fire was set at 3:30.
Judges may participate in questioning in order to clarify or expedite proceedings, Curry acknowledged, as long as the questioning does not demean the witness or create an appearance that the case has been prejudged. But McKay crossed over the line because he was “opprobrious” and because he “oppugned appellant’s integrity.”
Curry cited, among other things, McKay asking the defendant “Why would the bailiff remember you over anybody else?” That was argumentative and suggested the judge believed the bailiff’s testimony regarding the time of Perkins’ arrival, Curry said, and also suggested that Perkins might have caused some type of disturbance.
McKay, the justice said, went on to ask questions that suggested he had already decided that the defendant was guilty of violating the TRO.
The trial judge was “intemperate,” Curry said, “and stepped outside the boundaries of what could be characterized as proper examination of witnesses.”
McKay is a former prosecutor who was appointed to the Antelope Municipal Court by then-Gov. Pete Wilson in 1994. After surviving an election challenge in 1996, he was elevated by Wilson to the Superior Court and now sits in Burbank.
The case is People v. Perkins, 03 S.O.S. 3414.
Copyright 2003, Metropolitan News Company