Nov
18

I Like Fire and Brimstone

News that the Supreme Court reversed the conviction of a former client of mine was a delightful surprise. He was convicted of sexually abusing a young child. At trial, we won acquittals of the most serious charges, but the jury convicted on two counts, enough to yield a six-year sentence on judgment day.

At trial, I objected to everything save the sight of my own shadow. My adversary, Danbury’s sharmese Hodge, and I went toe-to-toe on the tender years exception to the hearsay rule, the scope of the constancy of accusation doctrine, the extent to which there is such a thing as expertise in incremental and delayed disclosure -- all familiar bugbears in cases of this sort. I was hoping that the Supreme Court would reverse on one of these grounds.

Instead, the Court reversed on an issue I never raised -- prosecutorial misconduct. Sharmese called me a liar during her rebuttal case. She claimed I favored child abuse. She accused me of using smoke and mirrors in my cross-examination of the child. I recall listening to her the day she huffed and puffed with thoughts of strangling her.

But I figured she was just doing her job. I mean, it’s closing argument, right? Isn’t that where we’re supposed to pin our ears back and let ‘er rip?

I gave a closing argument the other day in Middletown. My adversary was Pete McShane. When I accused him of using parlor tricks to prove his case, he looked as though I had kicked him in the groin, he seemed genuinely hurt. Sharmese wouldn’t have minded a verbal dust-up.

I didn’t take the appeal in the case Charmese and I tried together. Richard Emanuel did. Rich is one of my favorite people in the state. Having him read a trial transcript of mine is like a trip to a benevolent principal’s office. Indeed, I often call him in the midst of trial when I am trying to transform some ornery intuition into something resembling a legal principle.
It was Rich who spotted and framed the prosecutorial misconduct claim against Sharmese.

I’m always a little troubled when I see an appellate tribunal reverse a conviction on the grounds of rhetorical excess during closing argument. I worry that these rulings will chill good advocacy. I don’t want get geared up for the verbal combat that is trial with a judge’s bootblack on my lips. Prosecutorial misconduct rulings filter down to the trial court and encourage a broad use of discretion by judges when it comes to stifling defense counsel. Not long ago I had a New Haven trial judge sustain the state’s objection to my use of a common allegory to end an argument: I can understand a little stupidity and venality among the prosecutorial class; I expect better of judges.

I am delighted my client got a new trial, but I can’t help but feel bad for Sharmese. I’ve watched her emerge in the past few years to be a top-flight trial lawyer. She is tough, determined, quick on her feet, and relentless. Slapping her down just when she starts to take flight seems almost cruel. 

I don’t know whether the state will try my client again. Neither do I know whether the client will return to me if the state brings on round two. But I’d like the chance to go toe-to-toe with Sharmese again in this case. I wouldn’t even complain if she called me a few names, and harrumphed her way around the courtroom like a mad-hatter in search of a hat rack. God knows, I’ll have a few choices words of my own for her.

I suspect the re-trial will be more tame, however. She’ll be looking over her shoulder, lest the Supremes take notice. That’s a shame really. Please, let’s not neuter trial lawyers, too. There’s got to me some place left for verbal gunslingers, the sort of people who object first, and ask questions later.

Comments
No comments yet
For Display:
What is the year?
Confidential:
(Won't be displayed with comment)

Link must be approved, then will show on this page.

x

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

Personal Website

www.normpattis.com
www.normpattis.com

Law Firm Website

www.pattislawfirm.com
www.pattislawfirm.com

I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

Pattis Video