ANNAPOLIS – Maryland’s highest court said a Baltimore man could not get a fair trial from a judge who feuded openly with the man’s attorney — rephrasing the lawyer’s questions, accusing him of swiping a court marker and handcuffing him in front of jurors.
The Court of Appeals ordered a new trial for John Howard Johnson, saying his 1994 convictions before Baltimore Circuit Judge Elsbeth Bothe were tainted by her behavior during the trial.
“It was her responsibility to maintain control over the proceedings,” the court said in an opinion filed Wednesday. “Her failure to maintain control in an appropriate manner prejudiced [Johnson] and his case.”
Bothe, who has since retired, said Friday that she was shocked by the decision. She said she was particularly dismayed that the court did not chastise the defense attorney with whom she dueled, William H. Murphy Jr.
“I had hoped and expected that the court would put Mr. Murphy in his place because he is utterly outrageous,” she said. “Instead of doing that, they put all the weight on me.”
Murphy, who acknowledged a history of tussles with Bothe dating back to 1980, said he was pleased by the decision, but not surprised.
“This is a most uncivil, prosecution-oriented, interventionist judge and she’s always been that way,” he said Friday.
“Instead of calling the balls and strikes … this kind of judge meddles to the point that it interferes with the ability for lawyers to fairly represent their clients,” Murphy said.
Johnson, a Baltimore convenience store owner, was charged with murder after he forced a suspected shoplifter at into his car at gunpoint, then fatally wounded the man when he jumped out of the car.
Johnson claimed in court that the gun went off accidentally and that he did not know when he left the scene that night that the man had been shot.
He was convicted in 1994 of manslaughter, kidnapping and weapons violations. Jurors acquitted him of the murder charge.
But from the start of the trial, according to court documents, Bothe repeatedly interrupted cross-examinations with her own questions, and rephrased questions posed by attorneys on both sides. She would often raise and sustain objections to Murphy’s questioning on her own, when prosecutors did not object themselves.
At one point she had Murphy arrested for contempt and handcuffed in front of the jury.
Bothe said she was merely trying to speed up a case that Murphy was trying to drag out.
She said many of the incidents cited by the court — such as the stolen marker remark and her comment that jurors may want to point a gun at Murphy — were “just a little court jocularity.”
“Those incidents were just jokes. And everybody took them for that,” she said. “Unfortunately, [the opinion] doesn’t reflect anything that he did at all.”
She said that many of the confrontations were engineered by Murphy to gain sympathy from the jury.
“He set it up so he is a brave lawyer running against and impossible judge,” she said.
Bothe, 71, retired in 1995 after the Trial Court Judicial Nominating Commission for Baltimore City refused to reappoint her to the bench. Her conduct was questioned in four other cases that went before the Court of Special Appeals, one of which was reversed.
She still occasionally sits as a substitute judge in other jurisdictions across Maryland for absent and vacationing judges. Most recently, she said, she filled in for Carroll County Circuit Judge Luke Burns.
The Carroll County administrative judge who asked Bothe to fill in could not be reached for comment Friday.
Despite their history, Murphy said he doesn’t take Bothe too seriously. Nor was he personally offended by her actions during the Johnson trial.
“She was this way with everybody, with all defense lawyers,” he said. “Because it was so appalling, I took a more aggressive approach to her.”