The first sign that the proceedings seemed biased against her client came when Judge Edward Lee began questioning a witness, attorney Elissa Eckman would later recall.

But that hardly prepared her for what happened near the end of the Santa Clara County robbery trial. Lee left his seat on the bench, took a water bottle to the podium and gave the jury his own closing analysis of the evidence. In his remarks, Lee offered reasons to doubt the witness testimony supporting Eckman’s client, expanding on issues raised during his questioning.

“I never saw anything like it,” Eckman recently said of the trial of Carlos Guerrero. “It was like having two prosecutors in the room giving closing arguments. Only, one of them was the judge.”

A Mercury News review of five years of criminal jury trial appeals establishes a pattern of judicial conduct that favored prosecutors, with incidents occurring at nearly every step of the proceedings. Santa Clara County judges made missteps or questionable rulings in nearly one of every four of the cases.

The impact of their behavior can be crucial: Judges exert tremendous powers as the arbiters of the courtroom — determining what evidence to admit at trial, guiding the jury with their instructions, and setting boundaries for the prosecution and defense as thorny issues unexpectedly arise. Often judges use those powers firmly and fairly. But when they fail to do so, their actions may skew the course of the trial.

• Rulings on evidence. In more than 50 of the 727 cases reviewed by the Mercury News, judges allowed prosecutors to introduce questionable — and often improper — evidence. In nearly 50 other cases, defense attorneys were restricted from introducing their own evidence, rulings that often raised concerns from appellate justices or independent experts. For example, in one manslaughter trial, the judge permitted the jury to hear the portion of a defendant’s statement to police in which he confessed to striking the victim with a board, but not the portion in which he explained that it happened in a frenzy, after he was stabbed, and that he had not intended to kill the man.

• Jury instructions. In 48 cases, judges failed to give the jury appropriate guidance on the law — in ways that either bolstered the prosecution’s view of the case or undermined the defense’s contentions. As he directed jurors in a gang slaying case, a judge refused to tell them they should convict the defendant of manslaughter, not murder, if they found he acted “in the heat of passion” when he opened fire on rival gang members an hour after someone shot his brother.

• Judicial partisanship. In 10 cases, including Guerrero’s, judges made explicit remarks or took actions in the presence of the jury that suggested their bias against the defendant.

All told, the Mercury News identified more than 100 instances when the appellate courts found that trial judges erred in ways that helped prosecutors, and more than 40 additional instances of troubling conduct that the appellate courts declined to assess.

These patterns make a particular impact in Santa Clara County, where the Mercury News investigation has revealed a justice system populated by many aggressive prosecutors and lackluster defense attorneys. As the most significant check on the conduct of both prosecution and defense, the judge is often called upon to protect the defendant’s rights.

The Mercury News review found many instances in which judges met that challenge. Judge James Emerson has on repeated occasions acted aggressively to counter overzealous prosecutors — issuing sanctions, delaying proceedings, even ordering new trials. (Emerson’s actions in cases involving prosecutors Benjamin Field and John Schon were detailed Monday.) Then there is the kind of action taken by Judge James Chang, who in a 2000 drug-sale case prohibited phone record evidence gathered by the prosecution because it had been kept improperly from the defense.

“I don’t think judges want to commit error, and I don’t think judges want to convict unfairly,” said Alden Danner, presiding judge for Santa Clara County Superior Court. “I think most judges want to guarantee a fair trial. That’s what we are there for.”

On occasion, prosecutors complain that judges err on behalf of defendants, and one Santa Clara County judge was convicted in 2003 for favoring defendants in court. But legal experts who reviewed the Mercury News’ findings called alarming the number of instances in which judges boosted the prosecution in their rulings.

“It seems clear that errors have become pernicious,” said Bennett Gershman, a former prosecutor and now a professor of criminal justice at Pace University in New York who has written texts on both prosecutorial and judicial ethics. In the worst instances, he said, it appears that “prosecutors know they can overtry cases and push as hard as they want because the judges will not stop them.”

Experts say a variety of factors may influence judges to act in ways that favor the prosecution.

There is the social culture: Defense lawyers for years have complained of the close ties between Santa Clara County judges and prosecutors, and those complaints surfaced in the course of the Mercury News study. Mario Enriquez, for example, argued when appealing his DUI conviction that his trial was tainted because both the judge and prosecutor were members of Los Pescadores de San Jose, a social club whose exclusive membership has long raised concerns in the legal community for reinforcing an “old-boy network” among judges and prosecutors who are members.

There is professional orientation: More than a third of the county’s 79 judges spent the bulk of their careers in the district attorney’s office, following a pattern that developed statewide under former Gov. George Deukmejian. Alvin Goldstein, a former prosecutor and Marin County Superior Court judge who was appointed by the U.S. Department of Justice to help establish a fair judicial system in Iraq, said a judge’s background and training are crucial: “If that is all the legal experience that a judge brings to the bench, there is almost bound to be a predisposition for the prosecution.”

There is political pressure: Nearly 20 years later, the election that ousted California Chief Justice Rose Bird and two associate justices remains a powerful reminder of the risks of being perceived as lenient on crime, at the trial as well as appellate levels. “I believe there is some pressure, perhaps subtle, on judges in affirming convictions of defendants who appear dangerous to society,” Arlin Adams, a former federal special prosecutor and retired member of the 3rd U.S. Circuit Court of Appeals, wrote in an e-mail. “This pressure seems to be greater on judges who are elected, and thus must face voters in the future.” In California, judges at all levels must stand before voters.

Judge Edward Lee is a former police officer who went to law school and served as a deputy district attorney before becoming a judge in 1991. In 1998, he presided over the case of Guerrero.

The case involved allegations of a parking-lot robbery: The victim’s hat and coat were taken, but by the time of the trial, the victim was nowhere to be found. A police officer testified that the victim had accused Guerrero and two others of striking him and stealing the items. But the two gang members who were with Guerrero that night testified that was not true.

In his remarks to the jury, Lee offered guidance on how to sort through the contradictions. He called the gang members “convicted felons,” labeling one a “convicted perjurer,” and asked jurors to consider whether they could be “minimizing the culpability or responsibility of somebody else, the other defendant in the car with them that night?” He also reminded them that the police officer had quoted Guerrero making incriminating statements at the time of the crime — testimony that Lee called “extraordinary” if true.

Despite Lee’s comments, the jury ended up deadlocked, causing a mistrial. But Eckman later challenged Lee’s conduct in the case, contending he demonstrated bias.

Then, two years later, attorney Thomas Orvis sought to have Lee disqualified in a case by arguing that the judge had established a pattern of bias in other cases including Guerrero’s. Lee, he said, “has a habit and custom of acting as a surrogate district attorney.”

An outside judge, in the Guerrero case, and the 6th District, in response to Orvis’ complaint, rejected the concerns. Both noted that California judges have wide latitude to decide how to control the proceedings, and are permitted to make fair comments or ask questions to assist the jury.

Lee said he has done nothing wrong. The judge said he has long tried to ensure that juries are “understanding and paying attention,” including offering his instructions to the jury from the courtroom podium instead of behind the bench. On occasion, he said, he also had gone to the podium to summarize his views of the evidence.

But, Lee said, he has been careful to be evenhanded. “The judge has the duty to make sure the trial is fair,” he said. “That is the primary thing.” Nevertheless, he said, in recent years he has not offered jurors his own summation, nor has he engaged in questioning witnesses.

Several veteran judges said such conduct invites trouble, even if it is permitted under California law. Commenting to a jury on the evidence “is always a dangerous thing to do,” said Danner, Santa Clara County’s presiding judge, who said he had never done so.

Nor had John Racanelli, a trial judge for more than a dozen years before becoming presiding justice of California’s 1st District Court of Appeal, from which he has since retired.

Such behavior, he said, “runs the risk of stepping out of the role of impartial judicial arbiter,” and becoming an improper influence over the determination of guilt or innocence.

Eckman, a San Francisco attorney, said Guerrero’s case was one of several experiences that made her decide to stop practicing in Santa Clara County after 10 years of trying cases there. “It just is not a place that is fair to defendants,” she said. “It’s like living in a different world.”

Handling evidence

• Judges often keep the defense in the dark

Judges play crucial roles throughout a case. They decide, initially, whether the case is sufficient for the defendant to stand trial. They instruct the jurors, in the end, on the law to be applied in the case, and then impose the sentence.

But no role is more crucial than the judges’ handling of issues of evidence. They determine what evidence can be admitted, and what evidence should be excluded. And they preside over decisions on what evidence the defense can see through the discovery process. Those decisions are especially important when it comes to gang and juvenile cases, where the law limits defense access and the judge must decide whether to grant it.

Often in such cases, defense attorneys are left wondering whether evidence they could not see would have helped them. Only rarely do they learn the answer. Daniel Aleman and his attorney did, and it confirmed their suspicions.

Aleman, 27, and his cousin, 17, were accused of taking part in a carjacking in 1994. The victims’ identification of Aleman was shaky; before Aleman went on trial, his attorney filed a petition with the court, seeking to learn what the victims had testified during a closed-door juvenile hearing for Aleman’s cousin.

At a hearing on that motion, Judge Thomas Edwards said confidentiality rules prevented him from providing the full record of the juvenile case. But, he said, “I will be happy to obtain the transcript” and review it.

In a July 5, 1995, order, Edwards wrote that he had reviewed the file, looking for “any and all records” that might help the defense cross-examine witnesses at trial. But, Edwards wrote, nothing in the record met that standard. Aleman was later found guilty and sentenced to 62 years to life in prison.

An odd twist occurred on appeal, when Aleman’s attorneys asked the 6th District Court of Appeal to review the still-sealed juvenile transcript to determine whether Edwards was correct. In December 1997, Superior Court officials notified the appellate justices that the court reporter at the juvenile court hearing had died shortly after the proceeding. No transcript was ever prepared.

In September 1998, the appellate panel overturned the verdict, ruling that Edwards’ ruling had denied Aleman his constitutional right to effective cross-examination of the witnesses. Clearly, the panel said, Edwards wrongly implied that he had reviewed the witness testimony.

Edwards said in a recent interview that he did not intend to mislead anyone in the case, but that he now recognizes his ruling obscured the fact he did not see the transcript. “The bottom line is that trial judges are not infallible,” he said, after reviewing the appellate court decision at the request of the Mercury News. “I dropped the ball.”

Ultimately, as new questions arose about the strength of the identifications, Aleman pleaded guilty to lesser charges and was released after eight years in custody.

What to admit?

• Rulings often tilted toward prosecution

While disputes over access to evidence recur, a far more common issue involves the admission of evidence: what should be included at trial, what should be excluded — and why. Of the more than 200 instances of questionable judicial acts tallied by the Mercury News, nearly half involved decisions on the admission of evidence.

As judges consider those decisions, there are many rules to guide them. State statute and court precedent regulate the admission of everything from statements taken outside the courtroom to such prejudicial evidence as a defendant’s criminal record. The U.S. Constitution guarantees a defendant’s right to present evidence that may raise doubts about guilt.

Still, trial judges have significant discretion to admit or exclude evidence based on their own assessment of its value. And in general, the appellate courts are loath to second-guess those decisions.

Even so, in dozens of cases reviewed by the Mercury News, the court concluded that judges erred. At Shawn Harris’ carjacking trial, the judge improperly allowed the prosecutor to introduce a confession that was not given voluntarily. Another judge mistakenly admitted Christopher Nelson’s prior drug conviction as evidence at his robbery trial. The issue at Vincent Lopez’s trial for vehicle theft was whether he knew the truck in his possession was stolen; the judge wrongly barred a defense witness from testifying that a friend had asked Lopez to watch the truck because he feared it was about to be repossessed.

Crimes involving sex abuse and domestic violence pose special challenges for judges. A decade ago, California lawmakers rewrote the rules in those cases to permit evidence of a defendant’s previous acts as proof of guilt — something that for most crimes is considered unfairly prejudicial. At the same time, new laws have allowed sex-abuse victims to keep past conduct private.

But while those laws have tilted the balance, the Mercury News found some judges go beyond even those relaxed standards to favor prosecutors.

When Angel Oliveras went on trial for aggravated assault of his pregnant girlfriend, Judge Gregory Ward permitted the prosecutor to question the girlfriend’s brother about a past incident in which Oliveras had slapped her. But Ward refused to let the defense ask the brother about another incident, in which the woman had falsely accused someone of assault. Oliveras was convicted.

On appeal, a 6th District panel ruled that the evidence of a previous false accusation was wrongly excluded. But the panel called the error harmless because the jury had other reasons to doubt the woman’s veracity. For one thing, by the time of the trial, the woman had recanted her accusation of Oliveras. Further, the panel noted, jurors had the chance to see the woman’s demeanor on the witness stand.

Michael Kresser, executive director of the Sixth District Appellate Program, said he believes the combination of Ward’s ruling and the appellate court’s opinion was manifestly unfair to Oliveras. “If you were a jury trying to determine truth, wouldn’t you want to know if the complaining witness had falsely accused other people in the past of the same thing? Or should we pretend it is just as good to see the woman’s demeanor?”

Questionable decisions

• Senior jurist’s rulings on evidence stand out

In the Mercury News’ review of judges’ conduct, certain patterns emerged — and some individuals appeared in repeated instances. When it came to questionable rulings on evidence, Judge Thomas Hastings is among those who stood out.

Among the most senior members of the Santa Clara County bench, Hastings has presided over such high-profile cases as the murder trials involving victim Polly Klaas of Petaluma, and the Yosemite slayings for which handyman Cary Stayner was convicted. Appointed to the bench in 1980 by then-Gov. Jerry Brown, Hastings had been a defense lawyer throughout his career. Today he sits only on special cases, having retired from the active bench in 2000.

Hastings has long drawn controversy, in part because of what some consider a contemptuous manner — one lawyer complained that when he served Hastings with a motion to disqualify him, the judge tossed it from the bench.

Many lawyers say Hastings is not considered among the judges who reliably rule for one side or the other. But about half of his cases in the study period contained questionable acts that favored the prosecution, among the highest proportions on the bench.

Hastings did not respond to phone calls or a written request for comment. Speaking generally about judges with recurring instances of questionable conduct, Danner said, “You have to look at the cases they had.” Some judges, he continued, have an unusual number of difficult cases — a distinction that would apply to Hastings.

In the Mercury News analysis, Hastings’ rulings on evidence were a recurring issue. A look at some of those rulings illustrates the sorts of decisions all judges face, and just how much discretion the appellate court allows them. Among them are:

• The murder trial of Sonya Daniels, detailed Sunday, in which Hastings blocked evidence that the defendant lacked the intent to harm her son because she was a battered woman.

• The case of a stepfather accused of sexually abusing his stepdaughter, detailed Monday, in which Hastings blocked evidence that suggested the victim might be accusing her stepfather falsely of acts her half-brother had committed.

• The case of George Mendoza, whose attorney sought to undermine the credibility of a witness in his attempted-murder case by introducing her previous misdemeanor convictions for passing a bad check and giving a false name to a police officer.

“I have never up to this point in time even allowed a misdemeanor to be used for impeachment purposes,” Hastings told Mendoza’s attorney as he barred the evidence. On review, the 6th District said it would be wrong for any judge to have a personal rule against allowing misdemeanors, since the law clearly says such misdemeanors are admissible. However, it said Hastings made other statements in court indicating he had considered the issue on its merits.

Experts questioned those rulings, but the the appellate court excused each of them. However, the court ruled in the case of Son Hieu Nguyen that Hastings had gone too far.

Nguyen was facing charges as a result of a gang stabbing outside a Vietnamese cafe. A key witness against him was a rival gang member. Hastings would not permit the defense to ask the witness about the fact that he was on probation, or about his participation in a drive-by shooting for which no charges had been brought. The defense contended that those facts suggested the witness had reason to testify in a way that curried favor with the prosecutors.

The appellate court ultimately found that Hastings had “usurped the jury’s role as the trier of fact,” by not letting jurors decide if the unprosecuted drive-by offered a motive to assist the prosecution. And it said Hastings “was apparently operating under certain misconceptions regarding the law” in his analysis of whether the same witness’s probationary status should be excluded.

The panel ruling came after an appellate brief that was striking in its accusations: Attorney Gary Dubcoff contended Hastings had dropped all pretense of fairness, and had more than once referred to himself and the prosecutor collectively as “we.”

One such moment came when Hastings sparred with the defense attorney over the judge’s view that the drive-by shooting incident was not admissible. If the defendant were to take the stand, Hastings offered as an analogy, “We couldn’t do it,” meaning that the prosecution could not ask about a similarly uncharged, unrelated crime.

Leading the pack

• Third of judge’s cases in review had issues

In a system in which the appellate court generally avoids criticizing the conduct of trial judges, Judge Hugh Mullin III earned the court’s criticism in more than one-third of his 31 cases that were part of the Mercury News examination. That was more than any of his colleagues.

But Mullin, a former prosecutor who has nearly 20 years on the bench, has an unusual response to the appellate court criticism: He fights back.

After having his sentence overturned in one case, Mullin referred to the “alleged errors” found by the 6th District Court of Appeal, adding he was not using “the word alleged lightly.” One month later, as he resentenced another defendant whose case had been sent back by the appellate court, he commented that he understands sentencing law well, “despite what anybody in the Sixth District had to say about it.”

Even more striking were instances in which Mullin squared off against the appellate court not just in his comments but also in his conduct.

Mullin first was assigned to the case of John Michael Parker after the appellate court had overturned Parker’s conviction on charges of lewd conduct with a minor. In its opinion, the 6th District ruled that the original judge, Paul Teilh, had wrongly instructed the jury about how to consider evidence of an earlier act of sexual misconduct. Parker’s second trial also ended in conviction. And in it, the appellate court found, Mullin “inexplicably” gave “essentially” the same instruction that caused the reversal the first time.

But Mullin engaged in acts during the trial that caused the court even greater concern. He was “extraordinarily liberal” in permitting evidence of Parker’s past bad conduct, allowing testimony from the complainant’s older sister that Parker had raped her — though refusing to let the jury learn that Parker had been acquitted of that charge. Mullin also blocked a defense expert who would have cast doubt on whether Parker was a pedophile. That, the court concluded, was an error significant enough to overturn the conviction a second time.

In the case of Jorge Vargas, the court’s conflict with Mullin lasted multiple rounds and nearly five years. As Vargas waited in prison, the justices twice sent the case back to Mullin with concerns about the length of Vargas’ sentence before, the third time around, modifying the sentence on their own.

Vargas allegedly drove a car of gang members in 1994; as they passed a rival gang, a passenger in the car fired a shotgun blast at the rivals, striking one in the neck. Although there was little evidence Vargas knew of the shooter’s intent, Mullin gave him a life sentence for attempted premeditated murder and a series of concurrent sentences for a variety of charges that included 14 counts of firing a weapon out of a car, one for each person in the path of the blast. But the appellate court found that Mullin committed several errors, including sentencing Vargas for the crime of attempted premeditated murder when the district attorney had not even charged premeditation.

Mullin cut the sentence to 15 years. But the appellate court said the judge had not ordered the required evaluation of Vargas from the county probation department — apparently unaware that Vargas, who had no significant prior record, was eligible for probation.

The third time, Mullin offered a detailed explanation of why he was denying probation as he sentenced Vargas to 14 years in prison. In its third opinion, the appellate court questioned whether probation was the appropriate sentence but said the decision was within Mullin’s discretion.

But the appellate court concluded that this time Mullin had wrongly decided to change the sentences for several of the counts of discharging the firearm from concurrent to consecutive. Only one shot was fired, the court noted, and that did not justify consecutive sentences. The appellate court chose not to give Mullin a fourth opportunity. It sentenced Vargas itself to 10 years and eight months — and he was released soon after because of the time he already had spent in prison.

Mullin also failed to respond to telephone calls and a written request for comment.

Instructing jurors

• In key phase, mistakes may lead to convictions

The last thing that jurors hear before their deliberations are the judge’s instructions on how to apply the law to the case. These instructions, while sometimes technical in nature, are often vital in determining whether the defendant is convicted, and for what crime.

The process is highly regimented. California has adopted a series of standard jury instructions to cover the gamut of crimes. At the close of a case, the judge decides which instructions apply, after both the prosecutor and defense attorney advocate for the instructions they favor.

But repeatedly, the Mercury News review showed, judges err in this phase of the trial. At times the appellate court found that judges mistakenly rejected defense requests for instructions; at other times the court concluded that judges failed to give instructions that are mandatory, even without a defense request. And at times the appellate court found that judges wrongly modified the standard instructions in ways that misstated the law.

In one case in which the jury was supposed to determine whether a defendant was guilty of either robbery or petty theft, Judge Rene Navarro’s misleading instructions led the defendant to be convicted of both crimes for the same incident. And in the case of Frederick Brown, the appellate court later determined in a rare reversal, it was only a poor jury instruction that produced any conviction at all.

Brown already had four felony convictions when he was arrested and charged with theft and receiving stolen property. The property at issue was a dirty, broken-down pickup truck that had been sitting in a strip mall parking lot near his home for more than a year. Its registration was long expired, and as the truck sat, it was stripped of parts.

Finally, Brown hired a tow-truck operator to take the car to a house where Brown spent months working on it. Eventually a police officer saw him and determined that the truck had been reported stolen. Brown was arrested.

The case was assigned to Lee, who at one point likened the alleged theft to stealing a pizza. The tow-truck operator testified that the truck looked to him to have been abandoned, and another witness said it appeared to be “junk.” Brown did not testify.

Near the end of the trial, Lee refused a defense request that he issue a standard instruction on mistake of fact: If the defendant mistakenly believes that something is abandoned, then he lacks the intent necessary to be convicted. In declining to give that instruction, Lee ruled there was no evidence of what Brown believed.

As the jurors deliberated, they sent a note to the judge, asking for guidance on the law: If Brown believed the vehicle had been abandoned, would he be guilty of any crime? Again, the defense attorney asked for the standard instruction on mistake of fact. Again, Lee refused, telling the attorneys outside the presence of the jury: “The fact that there is some indication that jurors, some or all of them, may think otherwise, doesn’t alter the fact that I don’t think there’s been any evidence, let alone substantial evidence, of the defendant’s intent.”

The jury acquitted Brown of vehicle theft, but convicted him of receiving stolen property. Lee then sentenced Brown, based on his prior strikes, to 26 years to life in prison.

But the 6th District Court of Appeal overturned the verdict, finding Lee failed to give the proper jury instruction despite ample evidence: The truck clearly appeared to be junk, and Brown made no effort to conceal the vehicle, suggesting he did not think he was doing anything wrong.

The case was reassigned to Teilh, who disposed of it swiftly. Rather than proceeding with a second trial, Teilh ruled there simply was not enough evidence to convict Brown. By then, almost four years had passed from the time of his arrest.