What shocked the victim most was when the judge questioned whether she was really raped since he found it "odd" that was she was on top of Escobar during the assault. The judge required the victim to recount, in detail, her position during the rape and explain how Escobar, who maintained the sex was consensual, was able to force himself on her.
"I know these are tough questions and I don't like to have to ask them," the judge told the victim, according to a July 31 transcript, released late last week. "It's just you understand that most rapes take place with the man on top so he has complete control of the female."
Seems the judge was entertaining a JNOV, which we know isn't available in criminal cases. On several levels it smacks of judicial overreaching. A victim should not have to endure such treatment at a judge's whim. But what will be done?
JAS
Posts: 586 | Location: Denton,TX | Registered: January 08, 2007
Sounds like the prosecutor expressed an objection.
Sometimes, it takes an article like that to teach a judge that impartiality is important. That judge still needs some transition work from defense attorney to judge.
The manner in which I went about garnering answers to my questions that I had, and that I needed answered prior to assessing appropriate punishment for the defendant, was incorrect. I should not have gone about it in the manner in which I went about it.
In other words, I should not -- probably the better method would have been to call counsel into chambers and express my concerns directly to them, demonstrating all of the physical evidence that I was looking at that did not match what the complainant had to say during [the] guilt/innocence and during [the] punishment [phases of the trial].
And then let them flesh it out with the witness, rather than me question the witness, because of the appearance that I didn't believe the witness, or was picking on the witness, which I don't think a judge should do. Although in certain circumstances maybe it's appropriate.
I think in light of the nature of the offense the better means would have been to call counsel for both sides into chambers, express my concerns, explain my concerns based on the evidence I had in front of me -- and by that I mean the physical evidence -- and then let them flesh it out.
[How about, "It is not your job to redirect the trial of a case. It is your job to rule when an objection is made and to sentence based on evidence presented at trial by lawyers."]
