Throughout the 1976 trial of a District man charged with raping his 13-year-old daughter, D.C. Superior Court Judge Nicholas S. Nunzio took on the role of prosecutor, repeatedly interfered with attempts to question key witnesses and behaved discourteously to attorneys on both sides of the case.
In this finding yesterday by the D.C. Court of Appeals, the court sternly reprimanded Nunzio in a 14-page, unsigned opinion and overturned the defendant's conviction on charges of carnal knowledge and incest.
It was the second time in fewer than three months that the high court has reversed a conviction in Nunzio's court, citing his judicial temperament and his interference with attorneys who appear before him.
During an interview in his chambers yesterday, Nunzio, just off the bench for the day and still wearing his black judge's robe, was visibly concerned about the appeals court decision.
"You can't expose (a judge) to the worst of the (criminal) cases and expect him to sit like a statue," Nunzio said, in reference to the 29 months he was assigned to preside over the count's most serious felony cases.
"It may well be that you cannot expect a judge to try one hideous crime after another or accept pleas to hideous crimes in succession," said Nunzio, a federal prosecutor before being appointed to the Superior Court bench.
"You see the worst of humanity and you sit in judgment of it and perhaps as a judge sitting there you may interject yourself more than (you) should," he said.
Nunzio recalled that among some of his cases were a baby starvation, a man who was burned to death, and a group of men who "went on a rampage" raping women all over town.
"The period I had was a period of many horrifying cases," Nunzio said "Perhaps we should consider how long we keep a judge in a felony assignment . . . We're all human beings."
Nunzio closed out his felony assignment in the fall of 1977 with completion of the trial of 12 Hanafi Muslims who were convicted after a lengthy trial, of armed kidnapping, murder, assault and other offenses in connection with the takeover of three downtown Washington buildings in March 1977.
That case has also been brought to the appeals court, and part of the defense attorneys' argument centers on Nunzio's temperament and interference during the trial.
Yesterday, however, Nunzio focused his concern on the appeals court reversal of the case of Harvey Petway, 33, who was charged with raping his then-13-year-old daughter as she was on her way to Sunday school the morning of Aug. 22, 1976.
"It was a gruesome case," Nunzio remembered.
Six days after the assault on the girl, her mother, Angela Petway, then 29 years old, recruited two men, including a nephew, and went to Petway's house in Southeast Washington to seek revenge against her estranged husband. She was to tell the court later, she felt her husband "didn't deserve to live" if he had raped the child.
At the house, in a spray of gunfire, two men were killed and two other people were injured, according to police at the time. Harvey Petway escaped unharmed through an open window.
Angela Petway eventually pleaded guilty to one count of second degree murder and is now serving four to 20 years in prison.
In December 1976, a Superior Court jury, after less than 40 minutes of deliberation, convicted Harvey Petway of the assault on his daughter. He was sentenced to serve 10 to 30 years in prison for carnal knowledge and concurrent term of four to 12 years for incest.
In its decision yesterday, however, the appeals court said "the trial court (Nunzio) loosed the reins of restraint it must hold on itself and thereby has undone the jury's work and necessitated a new trial of the charge against" Petway.
The case was heard in the appeals court by Chief Judge Theodore R. Newman Jr. and Associate Judges John W. Kern III and George R. Gallagher.
Attorney James L. Lyons, who along with Edwin A. Williams represented Petway in his appeal, said his client will remain in jail pending a court hearing on the question of bond and a new trial.
At the outset of the trial, the appeals court said, Nunzio acted like a prosecutor, directing the assistant U.S. attorney as to when he should object to questions raised by the defense so as to "save this court its time."
At sensitive points in the defense lawyer's cross-examination of the victim and her mother, Nunzio abruptly began to ask questions of the witnesses, going to the "very heart," of the defense case, the appeals court said.
The court noted that some of the questions posed by Nunzio had a "devastating" effect on the defense's case. Nunzio's participation in the trial substantially prejudiced Petway's defense and thus warranted reversal of his conviction, the high court said.
"I regret their opinion," Nunzio said. "But I abide by it."