10 December 2014

Ambush in Bartlette: Chapter 34

Jerome telephoned Bishop Mannion as soon as he got back to Saint Berlinda.  He hoped to get a new assignment somewhere as far from this trial as possible. Instead, the Bishop ordered him back to the courthouse "to sit in as prominent a position as you can and provide a reminder to the conscience of the jurors." Jerome pointed out that the jury selection process had removed all the jurors who claimed a religious objection to the death penalty, but the Bishop was of the "easy to say,  harder to do" school of thought and he was convicted that if Jerome sat in plain view it would make "harder to do" even harder.

So, the next day Jerome found himself sitting in the courtroom as the two attorneys made their closing arguments.  Trials in movies always showed loud, emotional closing arguments and the mock trials Jerome had participated in law school had been full of law students being clever.  In contrast, the real world closing arguments plodded along and were boring. Dollerby, as the prosecutor, went first and he went step by step, laying out everything that happened and all the things that connected Jeff Sanger to the murder,  He never raised his voice and never made a single plea to emotion. It was a coldly rational explanation of why Sanger should be convicted of the murder which took a little less than three hours.

Pinsky then stood and took his shot at the evidence. He wasted no time on the murders themselves, acknowledging them from the beginning and then ignoring the ninety minutes or so Dollerby had spent going over the forensics and the various deaths of the victims.  Instead, he piled a double heaping of scorn on the testimony of the “murderers who got their lives spared by the prosecutor as long as they got on the stand and said exactly what the prosecutor wanted.” He went on and on about how the actual murderers - the ones who pulled the triggers - were the only people who tied Sanger to anything and how the recorded conversations were nothing without their self-serving testimony. In substance Pinsky’s argument was much shorter than Dollerby’s; in actual time Pinsky’s argument was ten minutes longer than the prosecutor’s.

Then Brad Dollerby stood back up and, at least to Jerome’s mind, wiped away Pinsky’s argument in less than thirty seconds.

“If the recordings are meaningless, why did Ian Minor and Dave Jordan make them and keep them? These were evil men doing evil things - all of them. They pretended to be loyal. They pretended loyalty to the community they were supposed to protect while they brought drugs into it. They pretended loyalty to the law while they broke it every day. They pretended loyalty to each other while they recorded each other so they could do blackmail or use the recording to save their own skin. They didn’t record the defendant having tea with his grandmother; they recorded him saying things they knew they could use later.”

“That’s the short and simple answer to everything Mister Pinsky just spent hours saying.  Evil men do evil things for evil reasons and in this case they killed people. Jeff Sanger ordered those murders. Why? Because he wanted to be sheriff. Because he wanted to protect the drug dealers. Because he was evil. Hold him responsible. Find him guilty.”
--------------

The jury was out four days, returning its verdict on the eighteenth of December. When they returned the forewoman handed the verdict forms to the bailiff, who handed them to the judge, who arranged them and handed them to the clerk of the court. The clerk stood and started reading.

“In the matter of Commonwealth versus Jeffrey Sanger:

“Count one, aggravated murder of Kyle Pahl - not guilty.”

“Count two, aggravated murder of Justin Pahl - not guilty.”

“Count three, aggravated murder of Mark Carr - not guilty.”

“Count four, aggravated murder of Edward Boyd - not guilty.”

“Count five, aggravated murder of Keith Tolliver - guilty of murder in the second degree.”

Count six, aggravated murder of Theodore Pahl - guilty.”

05 December 2014

Ambush in Bartlette: Chapter 33

Brad watched as Father Tolton walked to the front of the courtroom and sat in the witness chair. The judge glanced down at him, speaking in a pro forma tone.

"Please stand and take the oath."

"No. "

That answer focused Judge Isom's attention. "Sir,  you are required to take the oath before you can testify."

"Your Honor,  I shall not be testifying."

The judge leaned forward, his face that mix of interest and sternness which judges get when someone starts doing something unusual in their courtroom. His  tone was bemused.

"Are you asserting your right not to incriminate yourself?"

Brad was already standing at the podium and he tried to intervene,  but Judge Isom waved him to silence.

"Father Tolton, are you asserting your Fifth Amendment right  not to incriminate yourself?"

“No.”

“Then, are you claiming some sort of privilege not to testify?”

"No,  I’m not.  This court has every right to call me before it. But, I will not testify in a case that seeks punishment contrary to God’s will - the death penalty."

The judge sat back and stared into space for several seconds before he turned to face Brad.

“Counselor, we seem to be at an impasse. Your witness is refusing to even take the oath.  As I see it, we have two options. you can ask me to hold him in contempt and throw him in jail until he agrees to testify or you can ask me to declare him a hostile witness and we can all trust that as a man of the cloth he will answer questions truthfully even if not sworn. Your choice Mister Dollerby.”

Shit. The sonuvabitch is dumping the whole thing in my lap. Brad looked down at the questions he had written on his pad of paper, realizing that every bit of it was for nothing. Anything he did here was going to go wrong and the case could not afford that kind of hit. He looked up at the priest and forced a smile onto his face before turning back to the judge.

“Judge, the Commonwealth does not believe anyone is served by forcing the Father to testify. If we’d known he felt this way we would never have asked him to come to court. The Commonwealth asks that this witness be released.”

---------------

When the Judge dismissed Jerome he walked out of the courtroom and felt a huge weight lift from his shoulders. He knew that he should have been serene in his willingness to stand with God and the Church, but his base instincts never seemed to get that message and his nerves had been wound as tight as a drum.

God’s presence in the courtroom could not have been more clear. Jerome was allowed to state his objection to the trial in front of the jury and avoid testifying. He even avoided the jail sentence he had been certain was his lot when he entered the courtroom. The nervousness brought on by this certainty had been a large part of his failure to calmly place his fate in God’s hands. He had done it; honesty just compelled him to admit he had not done it with the complete trust he should have. And yet, despite his failings, God was there for him.

The only thing that confused him was the look on the defense attorney's face.  When he walked past the man he got a look that would have chilled ice water.  Jerome had seen angry men before and that attorney was the picture of barely controlled wroth. The attorney and Jerome had never been friendly. However, that look was a lot closer to hate than mere dislike.

Jerome walked right out the front doors of the courthouse. The last thing he saw while exiting the building was a bailiff going into the library to escort yet another man in prison orange into the courtroom.

-----------------

Gil was driving down some road in the middle of nowhere. Of course, everywhere in these miserable mountains was nowhere. Still, this particular stretch of barely drivable road was worse than most.  As soon as court was over he left the courtroom, went straight to his car, and started driving. It was the only way he could get time by himself and he needed time by himself. When he finally came out of his fugue, he was driving on some tertiary road without a cell signal. It was dark, he had not a clue of his location, and no means to get directions. No matter, he had a little less than half a tank left and surely the road led somewhere otherwise it would never have been built. He would get back to semi-civilization eventually. With that thought he stopped paying much attention to his surroundings and let his mind wander back down the path it had been on for the last hour.

It had been one gigantic, well laid trap. When you came out to these podunk counties you expected to experience home cooking, but that was usually outbalanced by the locals’ incompetency.  Gil never let locals manipulate his case - at least not until this one. The prosecutor had known about the priest all along and led Gil down a primrose path to the destruction of his case.

He should have seen it at the start of the trial when the prosecutor did not call the priest as his first witness and again when the prosecutor did not call him as the first actual witness to testify about facts rather than forensics. It should have been more and more apparent as it became more and more clear that the prosecutor was holding the priest until the end of his case.

But, no, Gil had assumed stupidity rather than plan. He had been outmaneuvered so badly that he even helped build the priest up in the jurors’ eyes. The prosecutor asked any number of irrelevant questions from various witnesses with the sole purpose of putting the priest on a pedestal. None of them were the least bit relevant and yet Gil objected not a single time.  In fact, Gil wove several questions into his various cross examinations meant to elevate that pedestal. Of course, he was more subtle than some piddly little lame duck prosecutor. Nonetheless, he had worked with the prosecutor, lauding the priest until between the two of them they had elevated a relatively minor witness to a level that the jury had to see the man as the linchpin of the case. He had been so certain - so very certain - that he was playing the rubes. Instead, they were playing him.

And he never caught a whiff of it until that mummer’s play they put on in the courtroom today. Every one of them played his part perfectly. The priest made his noble stand, refusing even to swear the oath and facing down a judge who could throw him in jail. The judge asked just the right questions to make sure that the jury saw that the priest was making his stand based on his faith without a shred of self interest. Then the judge had given the prosecutor his own opportunity to appear noble. The prosecutor took up that mantle and made the beneficent gesture of asking the judge to forgive the priest his behavior because it was based on his heartfelt belief in God.

In the span of less than ten minutes Gil’s trial plan had suffered a massive blow. Weeks of investigation were rendered worthless. Worse, all the psychological spadework that Gil had put in with the priest became wasted time. Gil’s investigators and proteges had handled the priest with kid gloves, but Gil himself had been brusque with the man. He had pointedly refused to call the priest “Father” or use any title recognizing the man as anyone special. It was a technique that worked well with people who thought of themselves as superior or specially set apart and it had obviously annoyed the priest.  It had particularly irritated the priest when Gil refused to call him anything but Jerome during the pretrial hearing and Gil had planned to take full advantage of that irritation while cross examining the priest during the trial. He would have started by calling him Jerome and then switched to Andre. While the priest was flustered, annoyed, or angry Gil would have destroyed him. However, as the prosecutor never asked the priest question one Gil had nothing to cross examine him about and all the preparations were naught but a best laid plan.

And then the prosecutor delivered the coup de grace. Immediately after the priest left the courtroom he called the other man who had been in the hospital and heard what Mark Carr said, his brother Andy. In effect, the man testified for the priest. He told the jurors everything that went on while the priest was in the room and proved nearly impossible to impeach. The man had a minor felony record which the jury would almost surely ignore. He was also in jail for trying to kill one of the people he blamed for his brother’s death. However, he loudly denied that he was testifying in hopes of getting a better deal for his own crime. He was there “because it’s the only way I can get justice for Mark.” And Gil knew better than to think that the people out here would hold trying to get revenge for the death of kinfolk against a man. By the time it was all over the prosecutor got the priest’s imprimatur without actually putting the priest in a position that Gil could tarnish his moral authority and Gil’s chance at getting a not guilty verdict was gone.

Halfway around the curve of a mountain, the car’s headlights caught a flash of metal and Gil barely had time to slam on his brakes. The car stopped inches before a gate across the road. The gate had a big stop sign on it, a sign that proclaimed “Property of Hale Energy Services”, and two big no trespassing signs. There was no way around the gate and it was chained and locked in the center. Gil tried looking past it, but all he could see was the road continuing around the mountain.

He sat there for a couple minutes staring at the gate and then started to back his car down the road.  About half a mile before he almost smashed the car into this gate in the middle of the road in the middle of absolutely nowhere he had passed a spot wide enough to turn the car around without going off the side and dropping into some ravine never to be found again. It would probably take him an hour to back his car to that spot.  Then he would get back to the motel, stop moping, and do his job. The client was going to be found guilty. Now Gil had to do what he did in every capital case - fight to keep his client alive.

01 December 2014

Ambush in Bartlette: Chapter 32

On Monday around Brad’s first witness was Grant Lasley, the Pahl attorney who had lost his arm in the ambush. He had planned to call Lasley toward the end of the case, but after Poplin’s performance on Friday Brad needed someone to put the jurors back on track. Lasley was a money grubbing bastard, but he had a gift when it came connecting with jurors and he showed up in full theatrical mode. Since the amputation he usually wore a long sleeve shirt and jacket with their sleeves pinned up to hide his damaged arm. Today he wore no jacket and his shirt was tailored so that the left arm had a short sleeve that ended two inches above the place the doctors had cut off his arm. As Brad questioned him Lasley made sure to keep his arm in sight and he waved the stump in front of the jury whenever he was emphasizing something he said.

Brad asked a few general questions and let Lasley weave his spell. After a brief explanation of why everyone was in the alley, Lasley started by describing the horror of seeing bullets tear into the Pahl brothers. Then he recounted the chaos as everyone else in the alley came under fire. He told them how he pushed Father Pahl to the ground behind the deputies and clung to the ground himself, helpless as rounds flew over their heads, hit the ground around them, and pinged off the big tank which the deputies were hiding behind. He ended his account with the sudden shock of the explosion followed by waking in a hospital in Tennessee with his arm gone.

By the time Lasley finished he had the jurors mesmerized. Brad returned to his chair satisfied that the case was back on track. Even Pinsky seemed to recognize that having Lasley on the stand was bad for his client. The only question he asked was whether Lasley had seen his client, Jeff Sanger, at the ambush. Once Lasley said “No”, Pinsky immediately stopped questioning and sat back down.  Jeff schooled his face not to smile as he asked the judge to dismiss Lasley and called his next witness.

------------

Gil and the prosecutor had spent the last two days skirmishing over the self-serving testimony of the scumbags who worked for his client. Gil had won across the board and he liked how this trial was shaping up. Unlike most of his death penalty cases, there was a solid chance that this time his client might actually be found not guilty. It was too close to call at the moment and Gil was enough of a realist to know that no matter what the law said a jury on a murder trial would almost always find guilt if the case was close. Jurors were unwilling to take the chance of releasing a murderer back into the world. However, juries that convicted with some residual doubt almost never voted for the death penalty.

Gil's main hope for a not guilty finding came in the person of one Father Jerome Tolton. Or, as he was known prior to his mental breakdown, Andre Trevor Banks. Sitting at the desk in his motel room Gil clicked on the ten gigabyte file folder on his computer filled with reports and recorded interviews about Andre. It was by far the largest file on any prosecution witness and it made for an extremely interesting read.

From everything the investigators found, Andre was the poster boy for affirmative action. Third child of single mother from Norfolk, Virginia, he parlayed mediocre academic performance, white guilt, and Catholic “social justice” silliness into a full scholarship at some Jesuit University in West Virginia. Then he parlayed the same package into a law degree from Boston College.

Despite finishing outside the top quarter of his class, Andre had his choice of job offers from lily-white firms and he took a position at Spears, Allenby, Austerlitz, Evans, and Metcaffe.  Once there, he got buried in Wealth Management Services, writing wills for rich people.  By every account, he did a decent job, but nothing partner worthy.  Also by every account, the firm dragged him out whenever it wanted to prove it was in compliance with the diversity shibboleth. In fact, for three years Andre’s smiling face was the one you saw when you clicked the “Diversity” link on the firm’s web page. When Andre became a junior partner in his fourth year at the firm it was a defensive move, meant to keep him from taking a position he was offered at ClineBarton, where he would have become that firm’s face of diversity.

Less than a year after becoming a partner Andre snapped.  Gil’s investigator was never able to find any psychological records, but there were plenty of people who recalled Andre having long philosophical and theological conversations with a person who was not there. One paralegal the investigator interviewed recalled sitting outside Andre’s office for over an hour while he argued with an empty chair about transubstantiation.  However, Andre’s work remained constant and his oddities were tolerated until a senior partner and some important clients walked into a conference room and found Andre arguing heatedly with thin air about “the prayed for intercession of the church triumphant into the affairs of the church militant.”  That embarrassment, combined with a hefty fear that Andre was turning militant, led to a number of frantic emails between senior partners.  The only reason they did not fire him outright was the fear the firm would be labeled racist.  Nevertheless, within a week they put him on a two year “medical leave.” The termination package was amazing. Andre was paid his salary for two years and then given a fifty thousand dollar yearly stipend for a ten year period - all contingent upon not disclosing the terms of his separation.

They seemed to have assumed that Andre would go get psychiatric help. They were wrong. The first thing Andre did was change his name to “Jerome Tolton.” Then he shopped himself around until he got Saint Benedict the Moor church in Hampton, Virginia to sponsor him to a seminary in Cincinnati. Eight years later he came back to Virginia as Father Jerome Tolton and promptly became a hitman for the bishop in Richmond.

If Jerome Tolton showed up at your church’s doors you were in trouble.  To date he had closed five churches and reorganized another nine, resulting in the removal of seven priests and the indictment of a church secretary when Tolton found kiddie porn on the sole computer in the office of Blessed Sacrament church.  Gil did not entirely believe the secretary’s confession to the police; given the Catholics’ history, there was more than a passable chance that the secretary was taking blame to protect the church. Or, at least the jury would see it that way once Gil was through.

In reality, the priest would contribute little to the prosecutor’s case. The only thing the priest could testify to was the conversation at the veteran’s hospital and that implicated the other defendants, not Gil’s client. Yet, everyone in the courthouse knew that the  prosecutor was going to call Tolton. He would be called to show that the prosecutor was bringing this case with moral authority from God. The prosecutor had obviously failed to perform due diligence in checking the background of his  witness - as they always did.

Most of the people on the jury were white, Protestant, and either working class or poor. By the time Gil was finished showing them the crazy priest, who was an affirmative action baby, who worked against God by closing churches for a living, and who probably covered up yet another Catholic priest who wanted to bugger little kids, the case would be over. Gil would take the moral ground upon which the prosecutor wanted to base his case and burn it to the ground. Then he would salt the earth so that no conviction could be grown from it.

-----------------

Jerome sat in the hallway outside the courtroom. It was Thursday morning and he leaned over his Vulgate and a Latin dictionary which were both sitting open on the chair next to him. Yesterday he had worked his way through three pages of Job.  Today, he was working on the first full paragraph of the fourth page when a deputy tapped him on the shoulder and told him he was being called as a witness.

Jerome stood and squared his shoulders as he walked through the doorway.  It was time to go do his duty as a servant of God.

17 November 2014

Ambush in Bartlette: Chapter 31

"Objection, your honor!”


Brad closed his eyes for a second, took a breath and reopened them. He was standing in front of the jury trying to deliver his opening statement and this was the sixth time Pinsky had interrupted him. None of the objections so far had come anywhere close to being sustained.


This time, instead of calling the attorneys over to argue the objection in hushed tones at the bench Judge Isom had the deputy and trooper acting as twin bailiffs escort the jury out of the courtroom.  Then he motioned for Pinsky to speak.


“Judge, the prosecutor used the phrase ‘I believe the evidence will show.’ This is clearly a personal endorsement of the evidence and as such violates my client’s due process rights under the Fifth and Fourteenth Amendments in that it asks the jury to base their observations and opinions on their trust of an official rather than the evidence itself.”


Brad stood from behind the prosecutor’s table and started to walk to the podium, but Judge Isom waved him back to his seat. “Mister Dollerby, if you have anything to say after I am through you will have an opportunity.”


The judge turned, giving Pinsky a stolid look. “Objection overruled. Furthermore, I find as a matter of fact and law that this objection was frivolous - that all the objections you have raised during the Commonwealth’s opening statement have ranged from frivolous to spurious - and that this Court does not believe these objections were made in good faith. As a remedy for this behavior, the Court is instructing you to hold all objections to the Commonwealth’s opening statements until both the Commonwealth and defense have concluded their opening statements.”


Pinsky was immediately back at the podium. “Judge, I object. The Virginia appellate courts are very clear in this. I must make timely objections and this means that I cannot wait until after opening or closing statements are made. I am required to object as the error occurs. Which means that I am required to object during the opening statement or I waive my objection.”


The judge held up a finger to quiet Pinsky. “During a trial, I have wide latitude to shape the law of the case. I’m shaping it. You will not object during opening statements and at this time I am going to extend the same ruling to closing statements. Objections are not meant to be a tactic, they are . . . “


“Judge!” Pinsky cut right across the judge. “I am required to make contemporaneous objections. Your order is contrary to Virginia law . . .”


“Your exception is noted.” The judge cut right back across Pinsky. “The law of this courtroom is that you will not use objections to interfere with statements or argument of other counsel. You will hold all your objections until after opening statements and you will do the same thing during closing arguments.”


“Mister Dollerby, please retake the podium and unless you have something further to add to this discussion we will bring the jury out and try to get through opening statements before we send the jury home for the day.”


--------------------


Gil was ready to spit nails. He hated small town judges with small town god complexes. This was a capital case  - what did the idiot expect? Every capital murder trial was filled with objections. Everything that could possibly save the defendant's life on appeal had to be objected to so it could be argued on appeal. Otherwise the appellate courts would ignore it no matter how blatantly the prosecutor violated the law.


Sure, the Virginia Supreme Court kept saying that if it was impossible to object then the defense did not have to and the illegal and unconstitutional acts of the trial court and the prosecutor could be argued on appeal without an objection.  However, Gil had read too many opinions from appellate courts to trust that. The first thing appellate courts always did was try to find a way to wiggle out of their responsibilities and he was certain that this impossibility rule would generate a lot of  boilerplate paragraphs but actually be ignored in practice.


Another problem was that the local prosecutor was borderline incompetent. It was obvious this guy had never tried a serious case in his life and that he was not used to trying cases against anyone who knew law and procedure. He kept making all sorts of little mistakes. None of them were significant enough that Gil thought the particular mistake would be enough to get the case overturned on appeal. Nevertheless, the aggregate of hundreds of little mistakes could provide an overall violation of the defendant's due process rights that was impossible for the appellate courts to ignore.  Therefore, Gil had to object to preserve them all on the record.


Still, he held his tongue during the remainder of the prosecutor's opening statement. He wrote every error down and planned to spend at least an hour afterward painstakingly putting them all in the record. Yet, none of the errors were so bad that a trial judge would throw the case out or grant a mistrial based on them and Gil chose not to confront the judge's sense of godhood at that moment. It was more than likely that he and the judge would end up crossways later in the trial and Gil even thought there was a fair chance he would be held in contempt before everything was said and done; it would be far from the first time. For now, he decided to bide his time.


---------------


Jerome sat on a plastic chair set along the wall of the hallway outside the courtroom.  The judge excluded all the witnesses just before the opening statements began explaining that “We do this so that people say what they saw rather than being influenced by what others said.” Over the next four days the attorneys summoned various witnesses in and out of the courtroom. First, they worked their way through technical experts who were there to explain evidence having to do with guns, fingerprints, and explosions. Then investigators from the State Police and the FBI went in. Up through that point Jerome sat in the tiny library; he read, prayed, and spent several hours in small talk with other witnesses.


Starting yesterday, the state troopers brought witnesses from jail to testify and cleared out the room so they could store the orange clad men in it. Jerome found himself banished to the hallway.  Talking in anything more than a low whisper was discouraged because the sound carried into the courtroom so Jerome was working his way through The New Man.  Not a follower of the mystic path himself, he nevertheless tried to understand it and if you were looking to understand mysticism you went to Merton. Besides which, The New Man was the last book of substance Saint Berlinda had in its one bookshelf that Jerome had not yet read. If the trial went much longer he would be reduced to bringing his Vulgate and redoubling his efforts to read the Holy Book as his namesake had translated it.  Depending on how long the trial lasted, he might even get his Latin up to a level that Bishop Mannion would stop fussing at him about it.


There were yells in the courtroom and Jerome looked over at the doorway. Double doors blocked his view of anything and the words being yelled were garbled just enough to be outside his ability to understand.  One of the yellers was the witness, the former police chief of Yared, and the second was the defense attorney. Then the judge’s voice shouted them both down. Less than five minutes later the witness was escorted out looking like he was ready to chew nails.


---------------


Until yesterday the prosecutor was wasting the court’s time and trying to bore everyone in the courtroom to death. Then he started calling prisoners who were involved in the drug conspiracy. Gil objected, but the judge ruled that it all went toward a potential motive and the jury would be the ones to weigh if and how much the drug dealing was involved. It was just another in the long line of mistakes the judge had made so far.


The first couple prisoners were relatively minor and nothing they said had anything to do with Gil’s client. Then the prosecutor called Mark Poplin. Poplin was one of those guys defense attorneys love and Gil would never understand why prosecutors called them. Poplin would testify the moon was made of green cheese if he thought it would lessen his time in prison by a day.


Poplin described what he claimed to be the hierarchy of the local drug trade.  According to him, Jeff Sanger was the man running the protection side of the racket. From the tiny Investigation Section of the Bartlette County Sheriff’s Department, Sanger was responsible for the security of the drug transportation pipeline as it went through Northeastern Tennessee, Southwestern Virginia, and Southeastern Kentucky.


Poplin was a weasel and his story was implausible even before Gil cross examined him. There was no way a deputy from a small time sheriff’s department could run eight to ten counties in three different states. The cross examination took almost two hours and by the time Gil was finished the guy on the stand looked an utter buffoon. By the time Gil passed the old man in the witness chair back to the prosecutor every bit of his story was destroyed.  As the prosecutor returned to the podium to try to salvage his case the old man’s eyes remained fixed on Gil in a flat stare.


The prosecutor asked one question before Poplin started ranting about “rich New York Yankees” coming down and making life miserable for the “good Christian people of Bartlette County.”  The blatant bigotry caught Gil by surprise and it took him a few seconds to object. When he did he had to shout to be heard because the old man kept trying to talk over him. The judge shouted both of them down and had the bailiffs escort Poplin out of the courtroom. Then he sent the jury out as well.


Gil moved for a mistrial the moment the jury was gone. The prosecutor asked the judge to give a “curative instruction.” The judge - shock of shocks - sided with the prosecutor.  The jury was marched back in and the judge told them to disregard all of the statements Poplin made after the prosecutor’s last question. He went on to tell them that Gil was an attorney from Fairfax, Virginia and he was here because he was one of the few people in Virginia qualified to handle “this kind of case” and he had been appointed by the court. Having done this, the judge released the jury for the weekend.


Gil renewed his motion for a mistrial, but the judge must have had an appointment he needed to get to because he cut Gil off in mid-sentence, informing him that if he had any new arguments in favor of a mistrial he should write them down and submit them in the form of a written motion on Monday. When Gil objected the judge rolled his eyes, stood, and left the courtroom before the bailiff could finish yelling “All rise.”


---------------


Calling Mark Poplin to testify was a gamble and it went sideways right from the beginning. The only reason Brad put Poplin on the witness stand was to establish that Jeff Sanger was involved in the overall conspiracy and wanted to be the next sheriff.


Poplin had his own agenda.  Interviewed twice before the trial started, he only said that Jeff provided protection from the Sheriff's Department and that Jeff was worried that Bo would keep him from becoming sheriff. On the stand Poplin painted Jeff as the biggest bad guy in the local organization. Jeff supposedly kept everyone in Virginia, Tennessee, and Kentucky in line - including Poplin. Brad kept trying to get Poplin back on point, but every question led to another long winded explanation that Jeff was the big bad guy and Poplin was not.


When Brad handed the witness over to the defense attorney things went from bad to worse. At first Pinsky let his answers ramble on as he made the story bigger and more complicated. Poplin seemed determined not to answer any question with an "I don't know." After about forty-five minutes of this, the defense attorney ripped the testimony to shreds. After an hour of making Poplin look like a liar and a fool the defense attorney went back to his table and the judge called Brad to the podium to ask any questions he had to rebut the damage.


Brad walked to the podium slowly. He was only going to ask two questions. Was Jeff Sanger worried about the possible election of Bo and was Jeff involved in the drug conspiracy? He could see that Mark Poplin was pissed from his hour of arguing with Pinsky, but he hoped Poplin would be worn out enough to answer with a simple "Yes." He should have known better.


Brad only asked one question and Poplin ignored it. Instead, he pointed a finger at Pinsky and let rip. It was hard to make out everything that Poplin said because Pinsky got up and started yelling "Objection" over and over. Still, everyone heard Poplin call him "a rich Yankee from New York City" and accuse him of "coming down here where he isn't wanted to mess with people."


Judge Isom shouted them both down and had the witness and the jurors escorted from the room. Then he waved for Pinsky to proceed. Pinsky, of course, asked for a mistrial.


At first Brad thought Judge Isom was going to give it to him. The judge was known for his temper and today was no exception. If he had the power to hang someone for contempt of court Brad was pretty sure the judge would have strung Mark Poplin up directly in front of the courthouse to warn others against acting stupid in his courtroom. The judge was in a lather. He even interrupted Pinsky’s motion a couple times to add in his own little soliloquies. It looked bad.


Until Pinsky made a mistake. He started talking about how Poplin’s statements were meant to inflame the anti-Jewish sentiment of the jurors.  As Pinsky spoke at length about how labeling him a rich Yankee from New York was a derogatory way of besmirching him for his Jewish heritage, Judge Isom quieted down, sipped from his container of coffee, and stared at the lawyer. Pinsky seemed to take this as agreement, but Brad had been on the receiving end of that quiet stare before and knew better.


Brad even knew what the mistake was. As long as Pinsky had focused on the behavior of Poplin he was golden with the judge. However, Judge Isom did not like to hear the people of Bartlette County - his people - characterized as backward and telling the judge that his people were bigots would backfire every time. And that’s what the judge heard when Pinsky said the witness was appealing to the jurors’ anti-Jewish prejudices.


While Pinsky argued, Brad pulled out his phone and starting looking feverishly for the name of that skull cap Pinsky was wearing. Then he looked up some quick facts on Wikipedia. By the time the defense attorney finished his argument Brad was ready.


Brad pointed at Pinsky and told the judge that if the defense attorney truly believed that the people of Bartlette County were prejudiced against Jews then he would not have worn a large yamulke every single day of the trial. At the very least he would have moved to change the venue of the trial to the nearest location where the defense believed a jury could be seated that was enlightened enough to not care about the defense attorney’s faith. He pointed out that New York City had over eight million people and even the four members of the jury with only a high school diploma surely understood that not every single one of them was Jewish.  “After all, the first major Jewish population in the United States was in Charleston, not New York.”


The last comment got him a sharp look from the judge and Brad closed his argument pretty quickly. Judge Isom was far from an idiot and he knew that Brad was playing toward his proclivities. The last bit was a little too over the top.  Playing towards a judge’s proclivities was part of the game; having a judge feel like you were trying to manipulate him could turn into a disaster. Brad wrapped up by asking for a curative instruction.


Pinsky got up and argued some more, but he did not seem to realize he had lost the judge. Or maybe he did not care. In either case, he restated his same argument. The only new thing he said was that he could not have asked for a change of venue prior to trial because a change in venue could only be asked for because of bias against the defendant, not his attorney. He also made it real clear that the cap on his head was called a “kippah.” He said the name at least four times and even spelled it once. Brad was unsure what the difference between a yamulke and a kippah was, but whatever it was it was something Pinsky considered important.


In the end the judge told Pinsky that he did not believe the people of Bartlette would take the New York comment as a comment on the fact that he was Jewish. Nevertheless, he would give a corrective instruction.


The jury was brought back in and the judge waited until they were all seated before he addressed them.


“Ladies and gentleman of the jury, you are instructed to ignore the last answer given by the witness, Mark Poplin. It was not responsive to the question asked and was not proper behavior in the courtroom.  Furthermore, you are instructed that Mister Pinsky is from Fairfax, Virginia, not New York City, and that he is here because he is one of the few attorneys qualified for this type of case and he was asked to take this case by me.”


With that the judge released the jury for the weekend. Brad could have done without the judicial advertisement of Pinsky’s lawyering skills, but he figured he came out ahead. After all, the judge refused to declare a mistrial and the judge pointed out that Pinsky was from Fairfax. It was another thing that Pinsky seemed tone deaf about. People in Bartlette might have some theoretical distaste for New Yorkers, but they had a full on hate for Northern Virginianers and Fairfax was the most hated of them all. Pinsky would do better to worry about the fact the jurors now saw him as a Fairfaxer than that they knew he was Jewish.

28 October 2014

Drug Courts and The Establishment Clause

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Religious organizations put a lot of work into helping their fellow man. Any drug court out there would be insane to ignore the resources provided by groups such as Catholic Charities or The Salvation Army. Even groups which are not specifically attached to a religion use faith as a tool (AA/NA).  However, in the modern world, with its veto of one, it's difficult for a drug court to use any of these programs unless it wants to risk being sued out of existence.

The latest collateral fuss in this area has come out of the 9th Federal Circuit Court: Hazle v. Crofoot. A probationer was ordered into a drug treatment program which had religious elements and had his probation violated when he refused to participate.  The trial judge determined factual culpability before there was even a trial and a jury was brought in to determine damages. The jury awarded no damages and Hazle did not object while the jury was still there for the judge to send back to put in some sort of nominal damages. The appellate court saves the case for Hazle by working around that tactical choice and sends the case back because when liability is determined the jury has to award some damages. Then the State of California agreed to pay Hazle $1,925,000. The settlement by California appears to make little or no sense unless there is some floor beneath which an award cannot go (no indication of this that I saw) or the settlement was less than another trial would cost (using the first jury as a barometer, the likely outcome seeming to be a nominal award).

The general reaction to all of this is to make sure that both religious and secular programs are options. Of course, this leads to at least two problems. The first is that in areas with smaller populations and low economic viability secular options are not likely to be available and drug court programs cannot carve out an individualized program for one or two individuals. Second, if pre-existing programs are supported by a religious group or have a religious component then requiring the creation of competing secular programs is "making a law respecting an establishment of religion." It is the government using its powers economic, legislative, and/or judicial to pull people away from a religious organization to a government created or sanctioned competitor. Even a choice to walk away from outside programs involving religion and only use government employed counselors in government run programs would be "making a law respecting an establishment of religion" in that it punishes an external program because it is religious.  In theory, unless the drug court started out with both religious and secular options when it began it will be caught between an individual's free exercise guarantee and the prohibition against inhibiting a religion. 

The reality is that drug courts will muddle through using whatever programs are available.  If that means in order to be viable the drug court has to use the six religion-attached treatment programs (no secular ones being available) then the drug court will do so or it will shut down. After all, sending someone to jail - without offering any treatment program - is always going to be constitutional. If Hazle's probation officer had simply sent him to the probation board and thence to jail there would have been no problem. It was the attempt to help Hazle by sending him somewhere to get help that started the trouble.

NEXT: The Standards in Virginia

17 October 2014

Yes, I Play "Frisbee" Golf
No I Don't Smoke Pot


Over the last week or so, at least three people have pointed out the news story in which an officer asks why all "frisbee" golfers smoke pot and tries to use the driver's admission that he plays as a way to get the driver to let him search the car. Why have they pointed this out to me? Because I play disc golf (Frisbee is a registered trademark of Wham-O which does not make discs for disc golf). I've been playing two or three rounds a week for about a year now and I've progressed to the point that I can't really call myself a beginner anymore, but not to the point that I'm truly competent at the sport. Nevertheless, I've picked up most of the lingo and can talk a mean theoretical game.

Anyway, the idea that marijuana and disc golf are linked is not a new one. Here's a link to a Yahoo! Answers page discussing it five years ago. I've also listened to an interview with the president of the Professional Disc Golf Association in which he acknowledged this as part of the history of the sport before going on to talk about how the sport has evolved into the family friendly game it is today.

Personally, I've seen a good deal of variety on this. I've run into everyone from yuppies to hippies to guys with enough tattoos to look like their best job opportunity is as a bouncer to entire middle class families playing disc golf. Of the four courses I play most often three are too open or too busy for anyone to smoke in peace. The fourth is difficult enough that I've only found people serious about the sport on it. So, in the regular course of play I don't run into this.

However, I do travel out to other disc golf courses every so often when I get bored of the local courses and want to change things up a bit. One of these is outside a city in the mountains of North Carolina. Whenever I go there I make real sure that I am wearing a shirt and hat that identifies me as working with law enforcement.

Why?

Because the second time I went down there a guy glommed onto me halfway through the course who was flying high and bragging about how he always played disc golf high (except for the one time his "old lady" came with him).  I couldn't get away from the guy because the course has some serious hills and I am a short round guy who by that time was too worn out to move with any kind of speed.

Now, I quite like that course, but for obvious reasons a prosecutor from Virginia can't be hanging around in North Carolina with a guy who is bragging about being toasted. Consequently, every time I start to head that way I dig through my old t-shirts and pull out one that says something like "10th Annual Southern Cooperative Law Enforcement Training Conference" with the unmistakable law enforcement eagle across the back. Then I grab my "W&L Law" hat. You can't get much more obvious than that unless you wear a uniform and a badge.  Now, you say, that's got to be a bit of an overreaction. Except, at least two other times I've gone down there people have quickly put something they were smoking away.

So, I guess what I'm saying is that the officer's belief is far from groundless.   Based on my experience, I don't think the majority of disc golfers are potheads anymore, but they're out there.

On the other hand, most real players carry a bag that costs between $50 and $200. In that bag they carry anywhere from 20 to 40 discs which cost about $15 each. Personally, I can't see spending that kind of money and then wasting my time being toasted while I play.

30 September 2014

Talking to the Represented (Rule 4.2)

I'm sure this happens to other lawyers as well, but I think it's a hazard run across by prosecutors more than most. For some reason, defendants think that if they can just talk to the prosecutor and explain their circumstances they can make the situation better. Most often this occurs as you are walking down the hall and the defendant is waiting in ambush. "Mr. Lammers can I talk to you a minute?" Then come the times that you are out at the store and someone chases you down as you are trying to buy some socks. "Hey, do you work in the prosecutor's office? Let me tell you about my case." Then there's the lady on the phone who somehow talks her way past the receptionist and talks to you about the case for five minutes before you realize she isn't the witness you were expecting a call from - she's the defendant. And these are only the most common ways that defendants have approached me.

Generally, a prosecutor tries to avoid speaking to a represented defendant. Not that this stops the defendants. On more than one occasion I've had to walk away from people insistent on talking with me.  I've also had to hang up on a couple people. Some people just will not accept the fact that a prosecutor cannot talk to them without running it past their attorney first.

Of course, prosecutors also face a unique problem in the courtroom. A high percentage of Pitcairn County's misdemeanor crime originates in Lou's Trailer Park. Today's victim out of Lou's Trailer Park is quite often tomorrow's defendant out of Lou's Trailer Park. She already has an attorney assigned for tomorrow's case. Can the prosecutor talk to her about today's case?

Communications with a represented person is covered both by ABA Model Ethics Rule 4.2 and Virginia Ethics Rule 4.2 (the struck through section is in the ABA's version, but not Virginia's):
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
The key phrase to zero in on in this situation is "in this matter."  This fairly clearly delineates when one can and cannot talk to a person.  However, if it is not clear enough both the ABA Model and Virginia's actual clarify in comment 4 (I provide Virginia's more streamlined version):
[4] This Rule does not prohibit communication with a represented person . . . concerning matters outside the representation. For example, the existence of a controversy between an organization and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter. Also, parties to a matter may communicate directly with each other and a lawyer having independent justification or legal authorization for communicating with the other party is permitted to do so.
So, as long as the case for the victim today is not entangled with the case in which she is the defendant tomorrow the prosecutor can talk to her, but only about the case in which she is the victim.

An interesting variance between the Virginia rule and the ABA model is the striking of the judicial release valve by Virginia.  Virginia does not allow contact with a represented person solely because a court orders it. It struck the language from the model rule and declined to adopt comment 6:
[NOT ADOPTED BY VIRGINIA]
[6] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. 
[NOT ADOPTED BY VIRGINIA]
Sorry about the loud disclaimers, but as certain as the sun will rise tomorrow if I don't do it someone will ding me in the comments: "You're wrong about comment 6. How can you possibly quote it? You need to go back and reread the rule because that's not in it. Geez. More proof that prosecutors are evil and can't read."

The reason this difference is important is another situation often run into in misdemeanor court. Defendant has hired an attorney for a misdemeanor he was never going to get jail time on. The attorney has not appeared in court fourteen times because she's off doing slightly more important things like trying murder trials or arguing an appeal or giving birth to her child or . . . The judge wants to clear this piddly case from his docket.  He turns to you, "Mr. Lammers talk to Mr. Smith and see if we can't settle this today." Under the ABA's version the prosecutor has been ordered to talk to a represented client. Under Virginia's version he is still forbidden ethically from doing so.