“Hi hon!”

I haven’t seen this before.

Judge Thomas Ensor of Adams County, Colorado, now retired, sat back and allowed his wife to be empaneled on the jury trying Gary Val Richardson for allegedly firing one or two shots in the direction of police officers during a 2013 standoff.

The judge even thought the situation was funny. He joked during jury selection that lawyers should “be nice to Juror 25. My dinner is on the line.” After the jury was selected and sworn in, Ensor told the lawyers that he had never heard of a sitting judge having a spouse or family member on the jury. “There’s nothing wrong with it,” he said. “I think she’ll be a fine juror. I have not spoken to her about this case.”

One of my rules of thumb for avoiding legal ethics problems in trial is that if you’ve never heard of something being done before, there’s probably a good reason not to be the first to do it.

Richardson was convicted  on two counts of attempted second-degree assault, three counts of attempted third-degree assault, one count of violation of bail bond conditions, and one count of possession of a controlled substance, and was sentenced to 16 years in prison. He appealed on the basis that having the judge’s wife on the jury denied him a fair trial. In its June 1 opinion, the appeals court said that because Richardson’s lawyer didn’t object or move to dismiss her, any challenges on appeal were  waived. The judge also didn’t have a duty to excuse his wife as a juror or recuse himself from the trial, the court said, though he could have. No Colorado statute or rule required him to.

Richardson’s defense lawyer had said, when Ensor referenced his wife’s juror status, “I think we’re both afraid to challenge her.” “That wasn’t a stupid idea,” the judge replied. “Thank you. I appreciate it.”

During  the trial, Judge Ensor repeatedly mentioned his wife. Twice he asked he about dinner plans from the bench. When the defense lawyer apologized to jurors in closing arguments because the trial had taken them away from their family and spouses, the judge quipped, “Not everyone has been taken away!”   His wife then said she that had spent more time with her husband than usual by being part of the trial . Ensor said  to the lawyers, “You forced her to spend more time with me, which is worse.”

Judge Ensor, said the court in rejecting the appeal,  “could have handled this unusual situation in a more restrained manner,” but “his failure to do so did not create reversible error.”

Justice Richard Gabriel argued in his dissent that the situation required a reversal of the conviction:

“The trial judge’s conduct ensured special status for his wife as a juror, likely undermined the independence of the jury, chilled the lawyers’ advocacy, created an obvious appearance of impropriety, and ultimately deprived Richardson of the fair trial that the United States and Colorado constitutions guarantee him.”

I agree with him.