Trial Diary Day 1: McNamara v. Nessl civil murder case
March 7, 2022
Trial Day 1
Wake up in gray hotel room. There’s a text from Furhad - our first year associate who will help me in trial. He’s going to the courthouse and leaving at 8.
Smile. The doors won’t be open then but okay. Send him text – telling him so and that I’ll be there at 8:45.
Get ready. In nonjury approved comfortable gear which means its all black. Drive. Arrive at 8:45.
John Henry Browne the defense lawyer is sitting in the hall. This is the same JHB who has been in a tiff with me since the moment we met. The same one whose insults against me made the front page of The Seattle Times. The same one who filed a defamation suit against me which was thrown out of court as a matter of law. No love lost here.
He says: the courtroom is locked. Thank you I mutter walking past. JHB is wearing a gray suit and talking in his booming voice on the phone. There are no breakout rooms available. The multipurpose room is reserved for covid jury overflow. [Even now as I write this diary during lunch break we are the two lone people in the hallway. In fact he just belched after wolfing down his lunch. Twice. Cannot tune him out no matter how I try].
Sit on hard wood bench outside the courtroom. Text Furhad that I’ve arrived. He’s walking up the stairs. Says he got here too early and decided to see the sights while he was waiting.
We are at Grant Superior Court in Ephrata, WA. A town so small that we are staying at a hotel 20 minutes away.
This case came to us 7 years ago. The death of our clients’ father happened 8 years ago. Andrew worked it up with me. But he is not trying it with me due to his schedule. Furhad gets to second chair. Today his job is to argue the motions in limine.
Courtroom door is unlocked straight up at 9. We enter. There are 6 seats spread out in the jury box and the rest of the courtroom is filled with spaced out jury chairs. No pews except the bench directly behind counsel table.
Judge Knodel enters right on time. He says this is the 2nd case he will be trying since covid began. Almost no trials have occurred in the county.
We talk about jury selection. 2 rounds of 20 panelists. One in the morning one in the afternoon and then a third if needed on Wednesday. We are expecting it will be needed. Judge suggests giving us 15 minutes for the first round 10 the second. I request 20 the first round 15 the second. JHB asks for more time. I look around absently and don’t join his request. Then he asks for sequestering. Judge chuckles. Not going to happen. But we get the extra 5 minutes.
Counsel tables will be physically moved. Instead of facing the bench as we are now in a line, we will face each other. With a podium in between our parallel tables during voir dire. We can keep that configuration during the trial if we want. It is all dreadful. The jury will be to the side or behind us the whole time. Plus we can only have one client with us. One of our clients cannot attend voir dire.
The jury coordinator comes in. The judge who has not been wearing a mask puts on his mask. Furhad and I are already masked as are our clients. Because the sign on the door says to do so. Now JHB puts on a mask but the defendant does not. The coordinator hands her a mask. Defendant will not put it on. Instead she holds it up to her face. Pretending she has it on. But it is not touching her face. The minute the coordinator leaves, she drops it on the table. I expect most of the jurors here will be sympathetic to her in that regard. Almost no one wears their masks in this town.
Get through the MILs. Furhad has been a lawyer for five months. He makes it through nicely. Articulate. Prepared. He only has to suffer a little as I whisper in his ear from time to time so he can incorporate on the fly. He’s got good composure. However. The table is rattling. My hands are shaking if I touch my laptop which is shaking. Not earth quake big shaking. More like the kind of shaking that you feel in a vibrating chair that’s turned on high. F’s right leg is beating a staccato. Tempo: vivace.
JHB has probably tried more cases albeit criminal than anyone in the state. But civil MILs are not his forte. Three hours pass. We are not moving quickly. And now comes the big irritation.
The court has already granted our motion to use depositions due to unavailability and separately granted our motion for designation of video deposition excerpts. This was especially necessary as two witnesses live in Belize. This happened on Feb. 27 so the video deps have been edited. But now JHB for the thousandth time claims he hasn’t seen them and wants a do over. I argue against it but the court orders us to meet and confer. I don’t want this left hanging and ask that it be dealt with today. Court says we will break for lunch and meet at 1:30. But I’m to meet with JHB before then. Which is why we are both sitting at opposite ends of this hallway/landing strip on the second floor of the courthouse during lunch.
Am eyeballing a small orange grabbed from the breakfast bar at the hotel before coming. Furhad comes rattling over with a collapsible wagon. He has a pack of water bottles, trial exhibits and a fatsuma orange. I hear that’s not what they are technically called. But that’s what I dubbed them years ago and can’t remember to call them anything else. Highly recommend. Delicious. Toss aside the hotel orange for the fatsuma. Furhad leaves to do something. Save him half of the fatsuma.
1:15 Walk across the landing pad to JHB’s domain at the wood table in the hall. Say: Are you ready. He says: no give me a minute. 1:10 he comes over with a sheet of objections. Grit my teeth and do not say anything mean. F takes down all the objections and makes new highlights on the transcripts.
1:30 Court is unlocked and we go in. Next almost two hours the court lets JHB explain all of his objections which he never made at the time the depositions were filed and entered via court order per CR 32. I object and just keep repeating the same mantra of: waiver. At one point, JHB says that he has been on medical leave until 2 days ago – which is news to us because he never told us he was on leave. But he has been raising his health and did so last week when he tried to get another trial continuance that would have pushed this case into 2023 which the court denied. He actually takes off his gray jacket while he's talking on the record and shows the court the part of his body through which a tube is inserted so he can receive antibiotics. Judge K wrinkles his face and commiserates with him. I am merciless.
JHB tells judge K that he learned from “other civil lawyers” that a deposition designation is not binding and his objections can now be made after he already agreed to the designations. The court tells him to provide authority as he does also to us. I smile benignly. Agree. Then turn to F and say – guess what your next job is. He knows.
3:00 we leave. P has brought along two observers who say how much they like watching me because: you are so calm. Look over at Furhad and he is laughing in defeat. He knows. The bouncing leg has got to go.
Photo: Sitting in the hall outside the courtroom door. During lunch. Grant County Courthouse.