Sep
15

Ito Alert: "Tweaking" A Jury In New Haven--

I did not need to attend the O.J. Simpson trial in Los Angeles to get a sense of the proceeding's carnival-like atmosphere. The press conveyed what went on all too well. It soon became apparent for all the world to see that the trial judge presiding over that case, Lance Ito, was enjoying the show as much as anyone. Indeed, much of the disorder that pervaded that trial was a result of Ito's falling in love with the press, and the attention his case was receiving. Trial judges need to work hard to keep the decorum of a courtroom under control. A judge has the power to set the tone of a case. The subtle messages sent from the bench influence all that takes place in a room.

I worry that the "Ito effect," the subtle but perceptible effect of suddenly being made a celebrity for merely doing one's job, is beginning to corrode the atmosphere in the trial of Steven Hayes, which will enter its fourth day of evidence today.

New Haven Superior Court Judge John C Blue has his hands full. When he takes the bench each morning, he sits in full view of the 120 or so people packed into his courtroom. To his far left sit the jurors. Directly in front of the jurors sits the prosecution to team, and to the prosecution's left sits a much-hated defendant, Steven Hayes, and his two public defenders. In the public gallery sits Dr. William Petit, a man savagely beaten by Mr. Hayes and another man, who somehow survived an ordeal that left his wife and daughters sexually assaulted and murdered. Dr. Petit sits with family, friends and supporters. The courtroom is also filled with press: there are sketch artists, television reporters, print reporters, enterprising authors hoping for a quick book and television rights. I doubt, somehow, that anyone sits in support of Mr. Hayes.

Unlike the O.J. case, this trial does not present the specter of lawyers running roughshod over the judge. The defense lawyers are two senior public defenders, Patrick Culligan and Thomas Ullmann, with capital experience and solid credentials. Neither are the sort to play to the press during trial. The state is represented by Michael Dearington, a laconic and almost diffident trial lawyer whose greatest enemy is the sense of scorn he cannot help but to bring to the trial of any case, and Gary Nicoholson, Dearington's quiet, self-effacing understudy. All are career state employees with pensions already earned and available: none are hawking this case for headlines to build practices in a bad economy. (Stay tuned for the trial of the co-defendant in this case set for next year. One of the lawyers in that case claims to be the very military lawyer Tom Cruise portrayed in the film A Few Good Men, a questionable claim given that the role film played is reported to be a composite of the work of several lawyers. Expect some hot dogging at that trial; the lawyer already features his supporting role as second chair at trial on his web page.)

Judge Blue is a man of quirky intellect. A former public defender, he has been on the bench for 21 years. He is a loner who would rather take the bus to work each day than drive, the better to avoid wasting time. A self-styled intellectual, he has from time to time composed opinions in verse, and is given to literary and historic allusion: expect names to be dropped. The world is a pop quiz waiting to be taken. A Stanford law school graduate, one almost senses a bemused sense of regret when dealing with him: "All this talent, and this is as far as I have traveled?" Blue is a loner, who sometimes hums when he walks in a distracted sort of way, or is that humming the sounds of bees beneath his bonnet? He's no Lance Ito, that much is sure.

But Like Ito, Blue shares now a spotlight that can unhinge an intellect used to the solitary pleasures of the study. Sketch artists compose pictures of him. His courtroom is a rolling press conference. The sympathy of the world goes out to Dr. Petit, whose every move and gesture is reported on Twitter by the reporters assembled. "Dr. Petit placed a hand to his head as the detective described, ..."  Or, "a hand was placed on Dr. Petit's shoulder when ..." It has already been reported that the clicking of keyboards is making it hard for jurors to hear the proceedings. Question: Is all the twittering, or "tweaking" as the judge quaintly, and with perhaps a little too cute a curtsy toward Victorian mores, referred to the practice really necessary?  The courtroom stands in danger of becoming a forensic fishbowl, and it is beginning to smell just as funky as O.J.'s courtroom. Beware, Judge Blue, the seduction of celebrity status.

Consider yesterday's drama. In the wake of Tuesday's startling decision by one juror to leave the trial because the state was so disorganized and poorly prepared that the man could not follow the case, the state regrouped. It offered into evidence disturbing photographs of the decedents in this case, Dr. Petit's wife and children. The introduction of such photos is often a disputed issue at trial. When defendants argue that they are unnecessary and potentially inflammatory, the state typically argues gruesome photos are needed to show the intentional character of the wounds sustained. The evidence is admitted even when, as here, intent is not argued. These photos must shock to transform 12 ordinary people into paid assassins working at the rate of $50 per day.



But yesterday before the horrid photos were displayed, the judge warned folks in the gallery of what was to come. The judge told jurors to prepare themselves, beating a steady drum roll for the state, and then admonished them not to talk about the case, but told them that hugging one another was all right. This solicitude is right on the line separating umpire from batter: The state could not have asked for a better scene setting device than this. Forget yesterday's embarrassing blunders: the judge is here today to help.

The press debated on Twitter whether to look or not, with at least one reporter wondering whether she'd be fired if she refused to behold the horror of it all. Reading accounts of this made it sound like the courtroom had become less a forum for dispassionate justice than some sort of support group. Judge Blue is on the cusp of losing control of his courtroom, it appears, and of succumbing to the pervasive sense of well-orchestrated outrage fanned and fostered by those who want Mr. Hayes dead.

Mr. Hayes depends on this trial and the court for a fair trial. That means a trial devoid of unnecessary passion and prejudice. Of necessity, that requires a firm hand on the bench. Dr. Petit has testified and is permitted to remain in the room with his family as a spectator, not a party to these proceedings, which pit the State of Connecticut against Steven Hayes. The press should not be permitted to transform the proceedings into a pity party: feeding our insatiable appetite for voyeurism can transform the energy level in the room to that resembling the line outside a freak show tent. Inviting jurors to bond against the horror of inflammatory images only encourages then to unite against Mr. Hayes. All these vectors, Judge Blue, are playthings for the prosecution, not a judge.

It is too soon to say that Judge Blue has succumbed to the kleig light's white glare. But he is vulnerable. This man who walks alone and enjoys the shadow cast by history can too easily be tempted to think this case give him a chance to find a more permanent place in the state's legal history. Resist the urge, Judge Blue. Connecticut does not need an Ito of its own.
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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.

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

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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.

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