Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Heaven Forfend! A Judge Snarled at Me! Mistrial!
AND- he lunged at me! I need my teddy bear!
There are times when I see an item that so graphically portrays the unmooring from reality represented by the current crop of “Advocates” from any actual world in which I practiced that it seems worth it to bring it to light and to comment upon it. Here is a person who, I assume, purports to call him/her/itself a Trial Lawyer, a term which was an appellation of pride for me, who actually points out for the world to see, that a Trial Judge —pardon the hurtful word–“snarled” at her and other defense counsel. Oh, and if that is not enough, the Judge “lunged” at him/her/it, one assumes in a threatening manner!
Imagine that! What next? A Judge who, God forbid, uses “sharp language” in telling Counsel to sit down and quit abusing the privilege of objecting too much? Oh, the humanity! Where do they get these people? If I had gotten a mistrial every time a Judge snarled at me, I would be re-trying cases for the next three lifetimes! And, these are supposed to be our Avocats, our brave defenders of our rights in the battlefields protected for us by The Rule of Law? Trigger warning: what I am about to say may be extremely upsetting and hurtful: how pathetic that these are what we now call Trial Lawyers. Just simply pathetic.
On Thursday, one of the attorneys defending Jussie Smollett claimed that the judge in the case, Judge James Linn, “lunged” at her in court, according to The New York Post. Smollett’s attorneys also asked the judge to declare a mistrial, which he denied.
“The odd fracas came in the midst of the defense’s cross-examination of Olabinjo Osundairo, who claims he was paid to help Smollett stage the hate crime, as attorney Tamara Walker grilled him about his alleged homophobia and past derogatory remarks toward suspected gay men,” The New York Post reported. “Osundairo, 30, had just acknowledged he used the word ‘fruity a**’ to refer to a man he suspected was gay and Walker asked if Smollett, who is openly gay, knew he’d said such things in the past.”
Chicago Tribune criminal courts reporter Megan Crepeau outlined what happened next, tweeting, “Judge Linn tries to hustle things along, saying Walker is getting into something ‘collateral.’ She asks for a sidebar, the jury is sent out of the room, and she asks for a mistrial — in part because of the ‘collateral’ comment.”
Walker’s fellow defense attorney Heather Widell accused the judge of visibly “snarling” when he sustained an objection from the prosecution, claiming, “I’ve noticed snarls multiple times.”
The great trial warriors of old must be looking down at the likes of “Heather” and wondering what happened to the traditions upon which our system of adversary combat were founded, with cross-examination described by the greatest scholars of the law as the “greatest engine ever created by the mind of man for the search for truth”, and ask themselves if this is what our progeny has become: cowering little creatures hurt at every “snarl”?
God Help Us.
Published in General
How does the line go? When the law is on your side, pound on the law. When the facts are on your side, pound on the facts. When neither the law nor the facts are on your side, pound on the table.
The whole Smollett hate crime attempt was so hilariously awful that I don’t know that there’s a winning strategy for the defense. Demanding a mistrial might be the best straw she has to grasp at.
I participate in a listserv as part of my Bar section membership for solos and small firms. Recently, there was a thread of complaints from a number of women attorneys about their feelings in the wake of remarks made that were allleged to have put them down and marginalized them, by male opposing counsel. Examples were “would the little lady like to go first?” and having been characterized as “shrill.” Oh my fainting stars.
I exercised restraint in not making any comment whatsoever in the thread, but I had to think to myself, as a one-time trial attorney years ago, my gosh, you folks either need to grow a much thicker skin, or else re-think your choice of career path.
Courtroom battles ain’t beanbag. Sure, some opposing counsel go overboard in trying to find any possible way to needle you, but so what? You think the choice of needle matters? Try your darn case!!
But of course, I do live in a county where, years ago, a female judge was subjected to a recall petition after having required men lawyers to wear suits and women lawyers to wear dresses or skirts when appearing in her court room. Couldn’t have that.
Perhaps the attorney, knowing Smollett is guilty and will be found guilty, decided to play to the sensationalist press: “Look at how my client is being railroaded by a corrupt and racist system!”
And perhaps Smollett chose that law firm for its willingness to do so.
This comes from lawyers who were taught that “bullying” is the greatest crime. They have no idea how to deal with confrontation and disapproval and label any such sentiment as “bullying” and thus not allowed.
Or else, the lawyer knows there is no case and they just want to try something, anything that might save their client.
I’m absolutely certain that when Heather questions opposing witnesses, she is always respectful, and never uses a tone or line of questioning which would attempt to demean, intimidate or trip up a witness.
I think her business card reads:
Heather Widell, Esq.
Paragon of Dispositional Virtue
Contemptible.
I need to know more about the “lunging” part. That accusation says to me that the judge made an attempt to grab, punch or otherwise manhandle the attorney. Not only does that seem unlikely on its face, if he did that, surely that would be the headliner, not mere snarling.
I can assure you that there was more than one Judge who would like to have “lunged” at me; they as much as told me so as it was not in my job description to make Judges like me, but to represent my clients to the utmost of my ability, zealously, but not with zealotry, as there is a serious difference in the two. However, you are most certain that had this Judge actually made any kind of physical move against Little Miss Snowflake, all hell would have been rained down upon him by the Judicial Council, as it was known in Louisiana, or whatever its equivalent might be in Crook County, as John Kass refers to it!
I’m guessing that he leaned forward a bit in his chair.
Lunging is a fencing term. She means he pulled a foil from under his robe and jumped off the bench yelling, There can be only one!
Here is Jonathan Turley’s piece on this bizarro piece of courtroom drama: https://jonathanturley.org/2021/12/03/smollett-lawyer-reportedly-demands-mistrial-after-accusing-judge-of-lunging-at-her/. He notes that in 30 years practice as a criminal defense attorney, he has never heard of such allegations in a criminal trial. As noted in the OP, that was certainly my experience on the civil side; it also seems that the defense attorney broke down crying at the sidebar in which she claimed the Judge “lunged” at her. In our new “woke” world, am I allowed to observe that it sounds like she is “pulling out all the stops” to try to get a mistrial? Hope so since I just did.
Breaking news: Smollett just took the stand in his own defense! As some wit observed on Twitter, this should definitely be televised as America deserves to see every tawdry minute of it! Prediction: this simply cannot end well for this con artist– or his sobbing “Advocate”!
A trial lawyer crying because the Judge made faces, etc., during the trial. Good grief.
All of the above is fair enough – in particular in relation to the specific case- but let’s not pretend that there aren’t judges out there who, for one reason or another, are boorish thugs who delight in making lawyers’ lives miserable. That’s no problem for the experienced practitioners who can take it in their stride- or bite back once in a while- but not many lawyers start out with thick skins.
Excellent point, and right on the money as I’ve had the distinct displeasure of being subjected to the wrath, anger, pettiness and, at times, downright cruelty of the “boorish thugs” you describe. We-my fellow trial lawyers, both plaintiff and defense- would from time to time observe that some of the worst offenders “could not make it in their own practice” and were more obvious in their envy of those who succeeded than they ever realized. That said, my observations, as a civil practitioner, were more than buttressed by those of Prof. Turley, with 30 years’ experience as a criminal defense lawyer, in which he said that in all those years he had never once seen anyone move for a mistrial due to what no one with a modicum of real world experience in the real- not the Television Studio set version – courtroom could imagine was actual judicial misconduct.
Thank you for your well reasoned comment.
PS: I was about to wrap this up when I went back to your line about lawyers starting out and flashed back to my first few Court appearances, which were, quite honestly, terrifying, nightmarish experiences and at times I had “the shakes” so bad all I wanted to do was to get completely out of the Courtroom and the Courthouse and never go back. Thanks for causing me to go back to those times and for making me feel a bit more empathy for those beginners you describe! Jim.
Oh. Well if this is what the judge did, then I would think this would certainly be cause for a mistrial. The article omitted this information.
I can’t say I’ve ever had that reaction. I’ve been in many a life threatening situation without reacting too strongly and an angry judge just isn’t quite enough to make me shake in fear. I might be confused or act more delicately, but not afraid.
I did have an idiot judge, who had been sanctioned by the Supreme Court for having intimate relations with a party during the course of a case and for other misdeeds in the past, threaten me that if my client didn’t appear for a contempt hearing that he would hold me in contempt. The county was pretty, um, corrupt and my client didn’t appear for the current hearing because he was attending a hearing previously scheduled out of state. The court allowed the hearing to be set without the other party conferring with me and I had asked for a continuance. I think the opposing party and the judge had probably already coordinated to arrest my client (wrongfully) and were angry he was not there in person and was represented by me instead. Had my client been there, they most likely planned to put him in jail immediately for contempt and while he was there, they would take possession of the house he owned as separate property. There was a lot of that type of thing going on.
I still remember the judge, his voice raised and with angry gestures threatening me with contempt if I couldn’t get my client to appear at his newly set contempt hearing and I wasn’t afraid, just confused on what type of logic he would use to put me in jail and how long it would take me to get him sanctioned for a third time in his career. Idiot.
Oh, he never followed through with his threat because at the next hearing I was able to show that opposing counsel, as I was to learn was his wont over the 5 years of the case, had lied again about my client having been served prior to the behavior that the judge wanted to punish.
Judges can try to act scary, but in the end, I’m going home to my family. On the other hand, some good judges caught me making dumb mistakes and lectured me and embarrassed me, but all you can do is try to not make that mistake again and press on.
I would hope that at some point video of the incident would be in the public eye.