An exceedingly tense exchange between Judge T.S. Ellis III and the prosecution in the Eastern District of Virginia late Wednesday led to an extraordinary filing by the prosecution on Thursday morning.

At issue was the fact that one of the government’s most important witnesses had been sitting in on the proceedings. This witness, IRS revenue agent Michael Welch, had previously been allowed to observe the government’s case against Paul Manafort on charges of bank fraud and tax evasion. At least the government and the defense thought. The court seemed to have other ideas.

What’s so bad about a government witness–or any witness–sitting in on the proceedings before they’re called to testify? Potentially a lot of things, or potentially nothing, depending on the case and the witness–but no need to unpack hypotheticals. What matters here is that Judge Ellis typically doesn’t permit witnesses to sit in during the proceedings on cases he oversees. But in this instance, Ellis had given Welch explicit pre-clearance to do exactly that.

Judge Ellis, it appears, forgot about this prior grant of permission (in which he agreed that Welch could sit in) and when the judge learned about Welch’s presence, well, things took a turn.

In a fairly severe upbraiding of Assistant U.S. Attorney Uzo Asonye, Ellis admonished, “It’s my clear recollection…that I wasn’t admitting experts. You need to ask specifically. You’re going to go ahead now, I’m going to permit that, but I want you to remember that.”

To which an adamant Asonye replied that the prosecution would “check the transcript,” because they believed the judge was now publicly disagreeing with a previous ruling he had personally issued. Judge Ellis shot back angrily:

Well, let me be clear: I don’t care what the transcript says. Maybe I made a mistake. But I want you to remember don’t do that again. When I exclude witnesses, I mean everybody. Now, it may be that I didn’t make that clear.

This morning, the government filed a motion for a curative instruction–essentially a motion requesting the judge correct himself in front of the jury. In the motion, the government notes:

The United States of America, by and through Special Counsel Robert S. Mueller, III, hereby moves for a curative instruction, at the beginning of proceedings on August 9, 2018, correcting the court’s erroneous admonishment of government counsel in front of the jury on August 8, 2018. The record demonstrates that the Court mistakenly faulted the government for permitting IRS revenue agent Michael Welch, the government’s expert witness, to remain in the courtroom during the proceedings, when in fact on the first day of trial the Court has expressly granted the government’s motion to do so. The Court’s reprimand of government counsel suggested to the jury—incorrectly—that the government had acted improperly and in contravention of Court rules. This prejudice should be cured.

The motion continued, “The Court’s sharp reprimand of government counsel in front of the jury on August 8 was…erroneous. And, while mistakes are a natural part of the trial process, the mistake here prejudiced the government.”

Attached to the curative motion filing was the following segment of the transcript from day one of the Manafort trial:

Mr. Asonye: Judge, I’m sorry, we also — the Government would move to exclude any witnesses once the opening statements start with the exception of our expert and our case agent.

The Court: All right. Any objection to the case agent and the expert?

Mr. Westling: No, Your Honor.

The Court: Who is the expert?

Mr. Asonye: Special Agent Michael Welch, Your Honor.

The Court: And in what discipline is he an expert?

Mr. Asonye: In tax, Your Honor, tax computation, Your Honor. He’s the IRS revenue agent.

The court: All right. I will grant the motion to exclude witnesses…

Throughout the proceedings, the overarching subplot has been Judge Ellis’ interactions with the government attorneys trying the case. Observers have been wont to caution that this story is not such a big deal because ultimately the judge’s soapboxing has occurred beyond the ears of the jury. That is, it hasn’t had much of an impact on the case overall.

This time, however, the tense interaction happened when the jury could hear–prompting the above filing and argument–and now the judge’s role in the case could be viewed as complicating matters. That is, his frequent interjections and admonitions have the potential to alter the government’s case in ways that might be viewed as untoward.

Update: In response to the government’s motion, Judge Ellis performed as requested. He apologized:

Put aside any criticism. I was probably wrong in that…I sometimes make mistakes…This robe doesn’t make me anything other than human.

[image via Image via Alex Wong/Getty Images]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

Editor’s note: this story has been amended post-publication to include Judge Ellis’ mea culpa.

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