Appeals court criticizes behavior of city judge; Manslaughter conviction in Bothe court overturned


A Baltimore judge's contentious behavior toward a defense lawyer, which included suggesting the jury might wish to aim the weapon in the case at him, prevented his client from getting a fair trial, the state's highest court ruled yesterday.

In wiping out the manslaughter conviction of a Baltimore store owner, the Maryland Court of Appeals ruled that Circuit Judge Elsbeth L. Bothe's behavior toward lawyer William H. Murphy Jr. was so out of line that his client, John Howard Johnson, did not get a fair trial in the winter of 1994-1995.

During the trial, the court ruled, Bothe also interrupted Murphy in his questioning of witnesses, and implied in front of jurors that he was trying to steal a marking pen.

In October 1995, a judicial nominating commission failed to recommend Bothe as qualified to retain her judgeship because its members were troubled over cases in which appellate courts admonished her for interrupting testimony in front of jurors. She retired after 18 years on the bench, but has since heard cases in Anne Arundel, Baltimore, Carroll and other counties.

'Irritated' with ruling

Bothe, reached last night, said she was "irritated" with the Court of Appeals ruling, which called her courtroom remarks "abrupt and arbitrary." She said the court failed to include the contexts of several incidents in the opinion.

"I don't want people to think I am the kind of judge they can't trust to hear a case," Bothe said.

"Billy was outrageous," she said, adding that Murphy commented to the jury on her courtroom demeanor and had a disrespectful manner toward her.

Murphy's courtroom style has been described by other lawyers as at times confrontational.

Bothe said the remark about the marking pen, for example, was made in jest. "I laughed. The jury laughed. Everybody laughed, including Billy," she said.

"I did not laugh," Murphy said last night.

"I think the opinion in the Court of Appeals was absolutely correct and on the money. I feel vindicated," he said. "I'm in a long line of lawyers who tangled with this judge."

Bothe and Murphy bickered frequently during the trial, and she jailed him three times in two weeks for contempt.

Court remands case

After overturning Johnson's conviction, the court remanded the case for a new trial. Murphy said he will ask prosecutors not to retry it, as Johnson is close to parole eligibility.

Johnson, now 54, of Cockeysville, was charged with murder, kidnapping and handgun violations in the July 24, 1993, shooting death of Andre L. Burton, 24. Johnson, owner of a Northwest Baltimore 7-Eleven store, believed Burton was shoplifting and chased him, Murphy said.

The state contended Johnson shot Burton, and Murphy said the gun discharged accidentally.

The jury convicted Johnson of involuntary manslaughter, kidnapping and carrying a concealed weapon, and Bothe sentenced him to 10 years.

Pub Date: 1/14/99

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