Court Of Appeals Holds Judge’s Strategic Coaching Outside Jury’s Presence Can Pierce Impartiality But Still Not Be Plain Error
Opinion Published: September 18, 2025 (Mariano, Maldonado, Young)
COA Docket No. 368608
Wexford County Circuit Court
NOTE: This case applies to any attorney who is conducting a trial, with a jury or before the bench, as it shares an example of judicial impropriety when a judge suggests to an attorney questions to ask, and also shares strategy ideas in front of the witness who is on the stand.
Holding: The Court of Appeals held that a judge can pierce the veil of impartiality outside of the presence of a jury, and the judge did so here by suggesting questions that the prosecutor could ask on cross-examination, which amounted to the judge engaging in litigation strategy. However, this conduct did not amount to plain error affecting defendant’s substantial rights. The Court of Appeals, thus, affirmed the conviction and sentence.
Facts: Using a confidential informant (CI), the Traverse Narcotics Team (TNT) conducted a controlled buy with Plomb. The CI conducted a transaction with Plomb, using marked cash. Plomb sold the CI a Ziploc bag for $40, the contents of which later tested positive for methamphetamine at the Michigan State Police forensics laboratory. Plomb was arrested and charged for his sale of the methamphetamine to the CI.
The CI was the only eyewitness to testify at trial. The CI testified that he was able to contact Plomb because he “had his number from previous.” The CI testified that he handed Plomb $40 in marked bills and in return, and Plomb “handed it [the meth] to me.”
Defense counsel addressed the text exchange between Plomb and the CI, specifically, that it did not contain the word “methamphetamine” or a slang equivalent. The CI admitted that he “did not specify what the $40 was for.” Defense counsel asked the CI, “[H]ow are you familiar with methamphetamine?” The prosecutor, seemingly observing that this was already covered with his earlier admission to previously possessing methamphetamine, objected, saying: “Objection, your honor. I think that’s already been answered.” Rather than respond to this objection, the trial court dismissed the jury, explaining to the jurors that he was seeing “three other pitfalls” that he had to discuss with the attorneys. The jurors left, but the CI remained on the witness stand and Plomb remained in the courtroom at defense counsel table.
After the jury was excused, the trial court told the CI to “just sit there” while the judge and attorneys “do a little bit of talking.” The trial court went on: “You’re getting ready to ask him how does he know? Now, I’m probably going to ask him a question and that is, what did you mean by getting $40? And then I’m going to ask him how did you know $40 meant meth. Has [the CI] ever purchased from Mr. Plomb before in the past?” The CI answered, “yes,” seeming to believe the trial court was questioning him.
After a five-minute recess, and with the jury still out of the courtroom, the trial court asked the parties “[W]hat are we going to do?” At first, defense counsel asked to strike the question. The court said, “Nope. You’ve already opened the door . . . .” The court then stated that the prosecutor could “ask [the CI] questions about any time he’s ever purchased from Mr. Plomb” and, according to the court, that testimony’s probative value outweighed its prejudicial effect.
Then, defense counsel tried to correct the record, explaining: “I believe I just asked about the $40.” The Court asked the CI “[W]hy did you just say $40?” The CI replied that he and Plomb “never talked about much over the phone.” The trial court inquired further—“how did you know that he meant—that the two of you were talking about meth?” The CI explained, “[B]ecause that was the normal conversation between the two.” The trial court responded with “Bingo” and again stated that he would allow the prosecutor to ask those questions. He further opined that trial counsel had “a really big ineffective assistance of counsel issue.” The trial court clarified counsel knew the CI had previously purchased from Plomb and “intentionally walked into and opened a huge door . . . that was a huge mistake.” In the end, the trial court allowed defense counsel to withdraw his last question—“how are you familiar with methamphetamine?”—but the prior questions about the text messages remained.
Before giving instructions to the jury, the court explained that while Plomb’s prior sales to the CI could not be used for propensity evidence, they could be used for a common plan or scheme and were admissible because “the door was opened by the defense.” Following closing arguments, the jury convicted Plomb after less than an hour of deliberations.
Defense counsel then moved for a new trial, citing the questioning of the CI outside the presence of the jury and alleging that Plomb’s Sixth Amendment right to a fair trial was violated because the trial court interfered with Plomb’s cross-examination of a key witness. The trial court denied that motion.
Key Appellate Ruling:
The Court applied the Stevens test to determine whether a judge’s conduct pierced the veil of judicial impartiality even when that conduct occurred outside of the presence of the jury.
The crux of this case is the conduct of the judge outside of the presence of the jury, and whether it pierces the veil of judicial impartiality. Up to this point, the court’s jurisprudence has addressed judicial conduct in the presence of the jury. In People v Stevens, 498 Mich 162, 170-178; 869 NW2d 233 (2015), the Court “articulated the proper standard a reviewing court must apply” when determining “whether a trial judge’s conduct pierced the veil of judicial impartiality”: a “judge’s conduct . . . violates the constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or partiality against a party.” Stevens, 498 Mich at 168-169, 171. The Court went on to enumerate a non-exhaustive list of factors to consider in deciding whether a judge’s conduct violates a defendant’s right to a fair trial: (1) nature of the judicial intervention; (2) tone and demeanor; (3) scope of the conduct in light of the trial’s complexity; (4) direction of intervention; and (5) curative instructions. Stevens, 498 Mich at 180-190. Applying these factors, the Court considered the impact on the jury, saying at one point, the first factor will “dovetail” with the second because “the manner in which the judge’s inquiry is made will affect how the jury perceives the conduct.”
Up to this point, the Michigan Supreme Court has not addressed the question of judicial impropriety outside of the presence of the jury in the case of a jury trial. The Court of Appeals notes that the fairness of a trial is implicated when a jury is present and when it is excused. In Stevens, the court noted that judicial misconduct comes in “myriad forms,” including “belittling of counsel, inappropriate questioning of witnesses, providing improper strategic advice to a particular side, biased commentary in front of the jury, or a variety of other inappropriate actions.” In Plomb’s case, the judge laid out the specific questions for cross-examination and told the parties that these questions would be asked in front of the jury, rather than directly questioning the CI in front of the jury. This appearance of strategizing should be squarely the responsibility of the attorneys, and indicates the judge’s piercing of the veil of impartiality.
While specifics of body language and tone are impossible to know from the transcript, there are clues in the text. For example the court notes that more than once in front of Plomb, the CI, and the parties, the judge stated his belief that counsel was constitutionally ineffective in his representation of Plomb. The judge conducted his own examination of the CI to demonstrate the possible redirect for the prosecutor. Using the CI, and concluding questioning with “Bingo,” reads like making an example of defense counsel.
Based on the full picture, the court finds that the judge very well may have pierced the veil of impartiality and acted in a way that clearly changed the prosecution’s strategy. While the trial court erred in doing so, the court found that the judge’s actions did not affect the fairness, integrity, or public reputation of the trial, and therefore affirmed the conviction.
