Trial Diary Day 7: McNamara v. Nessl civil murder case
Trial day 7
Rain fell last night. The sun has risen. Look through the window over the top of Fatburger. It is a sparkling cool but beautiful blue day in George, Washington.
Today am wearing a flouncy flowered skirt topped with a beige jacket. Hair ruthlessly clipped back. When I was in college one of my favorite tv characters was Veronica Hamel who played an attorney in The Hill Street Blues. I don’t know if there had been a female attorney before on tv – but she was iconic. She had black longer hair which was not stick straight and she wore it clipped back simply. When I pull my hair back it’s like channeling her.
We resume with the expert. The court won’t let me ask him about the details of the second part of his analysis – comparing statements and actions and looking for inconsistencies. Make an offer of proof and without many more questions sit down.
JHB is ready for action. He bats half heartedly at the expert’s qualifications (Tomm Mauriello). And then moves to the evidence. He is shuffling papers and leans forward and says in our general direction: could you please put up Exhibit X. To which I say, your honor may we approach. I tell the judge that we are not going to act as JHB’s AV team. JHB mutters that is what everyone else does. Which I highly doubt. Judge says we don’t have to. And we sit down.
Now. JHB has the same amazing set up we have. This courtroom has been updated. It has an HDMI connector plumbed onto each counsel’s table. All you need to do is plug it into your device and you can display. But he doesn’t know how to use any of it. So he pulls the paper copies of the exhibits and identifies them and shows them to the witness. All without the jury being able to see one thing that they are talking about.
Meanwhile am sitting in my chair focused on JHB. The witness is to my back due to the set up of the courtroom. My calm yoga like façade is firmly in place today. JHB has no such restraint. Here is my review of his theatrical mannerisms:
The puzzled look – forehead drawn but at least one eyebrow raised.
The she doesn’t know what she’s talking about look – head slightly shakes. Eyes widened ironically. Mouth drawn into smirk.
The I’m just a simpleton look – eyes wide in an attempt to show no guile with a small, trying to be genuine smile.
The forceful litigator look – eyes intensely focused. No smile. Voice raised.
The I’m a good guy look – big smile creaking all the way to his eyes.
Study his face move around. Inspect his every move. Clinically. He mainly plays to the two jurors that are seated behind me. Even though 14 more are to his right. From time to time as his eyes pass over me, I catch his gaze like Mona Lisa and won’t let go. Eventually he gives me a look that I don’t need words to translate. It says: I know what you’re doing staring at me like that and it isn’t working. But the fact that he had to give me that look tells me that it is. He stops for the most part looking in my direction.
There are three moments that strike me during the morning session. First, Judge Knodel sustains an objection. JHB gives him look #1 then tries to argue again for his position. Judge Kn says again: objection sustained. Then shuts him down in a more loudly than usual talking voice. And you can tell he is not pleased with JHB. For the first time.
Second, no observers are allowed inside the courtroom. But it is open to the public through Webex. Apparently as part of federal relief package the county paid $500,000 for this joy. Not sure why zoom wasn’t good enough. Today there are about 50 people watching. But several cannot figure out how to turn on the mute. In the middle of the exam, an observer says super loudly over the intercom – hijacking the proceedings: Exactly. How can you know if there is no actual video blah blah. She is commenting on the testimony. While Judge Kn is trying to figure out how to shut her up. He talks to his tech over the break yet again and thinks he has it fixed. But he does not. Another watcher has her video on. We can see her in her living room. I come up with the idea of putting a hot pink sticky over her face. Furhad follows suit on the second tv. And we keep her hidden that way for a while. Until we need to show a piece of evidence and the hdmi kicks her out.
Third, lose yoga like façade and see red. JHB is trying to poke holes at the police investigation in Belize. A department which the expert has already said – does not rise to US standards. JHB wants to emphasize this point. Then frames a question in terms of “these people.” The heat rises behind my eyes instantly as I object to him denigrating the Belize police department. But it is actually worse than that. The Belize officers in the photo we have seen are Black. When JHB asks that question I feel assaulted – not myself personally – but all that I stand for and all who we are as a human race. I feel to my bones that it was said intentionally and for an improper prejudicial purpose here in rural America. I don’t highlight this to the court who sustains my original objection. But this is what I feel as the wave of heat thrums through me.
After lunch, JHB continues for another hour on the cross. It is a rambling cross without any particular moments of brilliance. He uses two witness statements both of which he does not offer until I agree that they should be admitted. Which prompts Judge Kn to ask him if he is admitting them. And then he says no. And then changes his mind. Silly dilly. He should never have let those in.
In redirect, am able to show the jury through those statements what the Belize police did to preserve witness statements. While we’re at it, move for the admission of all of the other statements – exhibits 2 through 32. Lots of spluttering results. And before you know it. Both Judge Kn and JHB have pulled out their evidence books right in front of the jury and are looking up the business records and public document exceptions to the hearsay rule. Jury leaves – it has been a seesaw of back and forth for them today. Explain that we don’t want them in for the truth of the matter or as documents that the witness relied upon tho he did. Want them in to counter JHB’s casting of aspersions against the Belize police. As Paul Luvera always says…. Trial is One of Impressions.
Jury shuffles back in. Move for the admission of the statements EX 2 – 32. JHB objects. Judge denies their admission. And while JHB is sitting there thinking what a great job he’s just done. I’m content with the jury knowing that we want the truth in and they do not.
Finally as the day drags to a close, it is time for jury questions:
1. Did Mr. M actually interview or speak to any of the police in Belize or just report.
2. Was there anywhere that it was raining if so what was the context of that statement.
3. Was there a spent shell casing at the scene if so what was the caliber.
4. Please review why there being an intruder is not an option.
5. Did the heart stop pumping
6. Did you find any direct evidence of how the body was moved either from photos or testimony.
7. Picture of the exit wound
Not asked although I voted yes: 8) What was conclusion of Belize PD re person or persons responsible; 9) Would any amt of rain be sufficient to remove gunshot residue from the deceased.
With 15 minutes to go, the expert leaves. We start to play the video of the scene investigator from Belize. And don’t finish it.
Photo: view out the hotel window in lovely George, Washington