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“our role . . . is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid.  Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.”  (United States v. Pisani (2d Cir. 1985) 773 F.2d 397, 402.)

Defendant cites several minor instances assertedly showing the court’s impatience with, or irritation toward, counsel.6  But such manifestations of friction between court and counsel, while not desirable, are virtually inevitable in a long trial.  The trial court frequently addressed the prosecutors in an equally brusque

6 Some examples:  During voir dire, defense counsel made an innocuous, offhand comment to the prospective juror.  The court said:  “Mr. Maple, let’s not go into that.  Your next question, please.”  Also during voir dire, the court asked Maple the relevance of one of his questions, then, before he could answer, said, “Let’s go on to another subject matter.”  The court interrupted defense counsel’s cross-examination of a police officer, warning, “Don’t argue.  Ask your question, please.  Don’t argue with the witness.”  When counsel, cross-examining another prosecution witness, twice asked about the contents of the witness’s conversation with the victim on the day of the killing, the court admonished counsel, “That is covered already.  You said that day.  It’s been asked and answered.  Your next question, please.”  During defense counsel Maple’s examination of a defense witness, the court asked the lead attorney, Miller, whether he wanted to take over the examination, noting, “We’ve been on this witness for almost 34 minutes.”  

Defendant lists several more examples, which may pass without individual comment.  Also not requiring comment, because they do not support defendant’s contention that the court displayed bias to the jury, are remarks the court made outside the jury’s presence.  

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