Sep
15

Home Court To The Prosecution

Lawyers who travel from one state to another impress me, but I can't help but wonder if they are effective in foreign courts. So much is nuance in a courtroom.

I keep making the rounds of the same old cities in my tiny state to try my cases: One month it might be Bridgeport, another it might be New Haven. This month, it happens to be Hartford.

But tonight, I feel a kinship with the traveling class. I am trying a murder case and I don't have the home court advantage. I am feeling it just now in the form of discretionary rulings that are, simply, bizarre.

The prosecution confided before trial that our case is the third or fourth trial she has had in front of Judge X this year. Both the prosecution and the judge share a common limiting disability in the form of a hearing loss. I wondered how these factors might play out at trial. Today I found out.

My client's defense is self-defense. Everything depends on whether the jury believes the state's witnesses. Today, a young woman took the stand for the state. She was a surviving witness, and she was a good witness for the state.

Sizing witnesses up is an art, not a science. Some witnesses can be confronted, others have to be courted. A young woman shooting victim needs courting, and that takes patience. But the key to a patient cross examination is listening. What to do when the trial court appears to have trouble hearing the witness? And what to do when the prosecution objects to questions merely because the questions, if answered, would hurt?

Today I was moving in for close scrutiny of the key issue in the case: What did the decedent do with her hands in the moments just before she was shot? The witness gave a version. I set about what doing what the Sixth Amendment permits: confronting the witness.

My intent was to cast doubt on the witness's testimony. She described pushing, but made it sound slow, calm and deliberate. The witness had been traumatized by what she saw and underwent. I suspect in her mind the events have been replayed a thousand times, and that, like the rest of us, she can replay trauma frame by frame, creating the illusion of timelessness in recollection of events that took but a moment to occur.

"Fair to say that you have replayed these events in your mind many times?" I asked.

"I try not to think about them," she said.

"That's not an answer to the question I asked," I said. "Fair to say that you have replayed these events in your mind many times?" I repeated.

"Objection," said the state. "Argumentative."

"Sustained," saith the court. So I quickly calculate that the objection must be directed to my comment about the witness's failure to answer my question.

"Fair to say that you have replayed these events in your minds many times?" I ask again, careful to make sure the substantive question is identical in form.

"Objection. Asked and answered," the state asserts.

"Sustained."

I ask for the jury to be excused and the series of questions replayed. I argue that the question was never answered. Rather it was evaded. The state is trying to block an effective cross examination with meaningless objections.

On replay, the court sustains the objection agin. But I press on. The court cannot deny my logic: The question was never answered. I press for some legal grounds for the objection other than that the state does not like where the question is leading the witness. "Argumentative," the state chimes. This is simply tripe, but the judge swallows it and announces it tastes like justice.

To punish me for pressing, the judge raises an issue all his own: I am accused of registering dissatisfaction with answers by facial gestures the jury can see. I am to stop doing so, the judge orders. Perhaps he'd prefer I place a bag over my head as I question reluctant witnesses.

This evidentiary error is the sort of thing appellate courts forgive by calling it harmless error, error that does not affect the outcome of a trial. How do the judges know this? And who can say that that an accumulation of such errors does not taint an entire trial?

Looking for reason, and finding none, I ask to adjourn for the day. Motion granted. We break 15 minutes early.

I keep reviewing this exchange and several others from trial today, wondering what happened and why. I see no logic and no law supporting some of what went on. As sleep flees it occurs to me I am in a foreign court. It is as if I have traveled to a foreign state to try a case among folks who know one another well and view my ways as foreign. I lack a home court advantage here: there are now bonds of trust between prosecutor and judge built by working together case after case. Discretion, when it is abused in this case, favors the familiar party, and in this case, that is the state.

I am unnerved by this and bitter. The law may not insist on a perfect trial, but it demands a fair one. The subtle bonds of familiarity between prosecutor and judge breed a contempt for the outsider. My client deserves better, and tomorrow I must find a way to deliver it. That will require more kindness and patience still, and tonight I am struggling to summon it.

I feel like Dorothy: I'm not in Connecticut anymore. But where, exactly, am? Where is the judge?
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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

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.

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