Judge concludes his Charlie Brown comments do not warrant mistrial

A judge who compared a criminal defence lawyer’s conduct to a Charlie Brown character has dismissed a mistrial application filed in the case.

Lawyers for Kurtis Trey Josephs, who has pleaded not guilty to offences involving pimping two underage girls, argued that the trial judge, B.C. Supreme Court Justice Kenneth Ball, was biased due to his statements in court.

They pointed to comments by the judge on Monday in reference to the cross-examination of a police officer by one of the defence lawyers.

“Some of your cross-examination is beginning to remind me of the Charlie Brown cartoon where Lucy is asked to write an essay about oceans, and Lucy writes there are no oceans in Nebraska, there are no oceans in Iowa, there are no oceans in Colorado, and goes through all of the states that don’t touch an ocean, and she gets a failing grade,” said the judge. “And she gets quite upset by it, but the reason for the failing grade is obvious.”

Gloria Ng, a lawyer for Josephs, told the judge during a mistrial application heard Tuesday that although the judge allowed her colleague Colleen Elden’s cross-examination of the officer to continue, his comments created the impression he had already accepted the truth of the witness.

“The substantive effect of the above amounted to inappropriate curtailing of cross-examination, which was exacerbated by the inappropriate comparison of counsel to the cartoon character,” Ng said.

“Lucy from the comic Peanuts is a child female character who was well-known and often described as possessing the following negative personality traits: unintelligent, bossy, opinionated and crabby.”

Ng then played for the court an audio recording from a movie about Charlie Brown that included the incident involving Lucy getting a failing grade for her essay about oceans.

The defence lawyer said that following Monday’s proceedings, Josephs was “visibly distraught” and felt that the case had been prejudged. She said the accused’s family, including his stepfather, felt the same way, adding that the stepdad was familiar with the criminal justice system as a victim.

Ng said that there was an appearance of bias by the court in the context of the whole proceedings to date and that it was the cumulative effect that called for a mistrial.

Crown counsel Sharon McCartan questioned the admissibility of the assertions by Ng about the accused and his family and argued that there was no basis for a mistrial.

She said the defence had made three errors in proceeding with the mistrial application, including that they hadn’t properly considered the presumption of integrity and fairness from a judge, as well as the “high bar” necessary to make out a case for reasonable apprehension of bias. McCartan said the defence had failed to appreciate and respect the court’s inherent jurisdiction, particularly its ability to limit or comment on cross-examination that is irrelevant or repetitive.

She said a mistrial was a remedy of “last resort” and argued that something more than just a suggestion of bias had to be made.

The Crown said that with respect to the Charlie Brown comment, she didn’t understand the judge to be saying that defence counsel was being personally compared to a cartoon character.

After hearing the submissions, the judge quickly ruled that he was dismissing the mistrial application and would give his reasons at a later date.