Trial Diary Day 6: McNamara v. Nessl civil murder case

Trial day 6

 We had trial day 5 on Friday – a day when we should have been able to work on other cases or prep for trial.  From 9 to 3:45.  Furhad stayed with JHB in Grant County but I had driven home.  At least trial for me mercifully was via Webex in the comfort of lululemon with nala at my side.  It was nothing but aggravating and did not deserve its own trial diary entry with one notable exception.

 In this era of being respectful of other people’s pronouns, the court, JHB and Furhad all decided to not be able to know how to address me.  It came to a head when Furhad – my own colleague! – called me Miss Koehler.  I said:  that ship has long since sailed don’t call me that.  So he reverted to calling me Mrs. Koehler.  Which I protested against as well since the last time I had that moniker was 22 years ago.  Ms.  I say:  You are to call me Ms.

Today the court begins by addressing me as Mrs. Koehler.  And I have to smile benignly in front of the jury.

Our first witness is the mother of the plaintiffs and past spouse of the deceased x 28 years.  She is a lovely person who talks about the origins of their farm and clearly knows what she’s talking about.  We introduce the decedent through her eyes and have a couple handfuls of photos that will be used to illustrate her testimony.  On Friday JHB said he had no objection to any of the photos.  Today when I move for the admission of the first one he objects and says he needs to see it first.  When I explain he’s already agreed to admission he denies it.  And since the clerk never made an entry he wins.  But that’s okay.  Making me do a dance that I can do in my sleep is no hardship. Tho it wastes time.

Hand the witness the exhibit book.  Show her the exhibit.  Have her acknowledge she knows what the picture is.  Move for admission.  And repeat that process each time.  JHB gives up pretending to care halfway through. 

The heft of her testimony involves being present when Defendant calls from Belize after Mr. Mc’s death.  Defendant says there was  no blood and she did not know where he had been shot.  That maybe because he had two artificial knees, he had tripped and accidentally shot himself.  Says she won’t identify the body. 

Move onto our expert.  JHB wants a limiting instruction.  Court isn’t sure.  Spend the first hour qualifying him and beginning to go through the basis of his foundation.  We break for lunch.

Sit on the same bench outside the courthouse door.  Listening to JHB belching from around the corner.  He calls up someone and again I try to drown him out.  But cannot.  He is talking about me. 

She is not very good he says.  She has circles under her eyes.  And her clothes … he scoffs. But I like her expert.  I don’t think the judge is going to qualify him.  Hahaha.  Maybe he will. But we’ll see.

I’m sitting there thinking.  Do I come out from behind the corner and take a bow.  Or ignore him as always and write him off for being a tool.

Tool it is.

Everyone comes back from lunch.  Apparently Pita Pit is the place to go. 

It is time to begin to show photos relied upon by the expert.  JHB says: your honor, do you think you should warn the jurors about these photos.  Judge says no.  And we begin.

But not with the photos.  It is time to play a video clip from Defendant’s deposition.  JHB starts to object even though there’s nothing to object about.  He argues that I haven’t made it an exhibit.  I pull out the transcript Vol. 1.  Bring it to the clerk.  Move to publish. (Most courts you just “file” it but here it is still the arcane way). JHB’s still spluttering.  The court is asking JHB what the problem is.  I volunteer that it is being played per CR 32.  Any part of a parties’ deposition may be played for any purpose.  JHB flops around and stops talking eventually.  Furhad plays the video clip which is 12 minutes long.  Def finds Mr. Mc on the porch.  Doesn’t see any blood.  Spoons him. Her face in the back of his head.  Gun in the rocks.  We’ve now introduced the defendant without having called her yet to the stand. 

The photos are of the scene and death.   The witness begins to take us dispassionately through them.  During this time and as we keep moving along in his testimony, JHB keeps interrupting.  He interrupts to ask the witness to slow down so he can track dates.  He starts talking to the witness until I have to ask the court to tell him to stop.   JHB wants to exercise voir dire but I am not helping him begin that process.  I’ve slowed everything way down.  Over an hour on qualifications and now another hour on everything he reviewed.    Judge Knodel leans over and says to him.  Do you want to voir dire the witness.  Invites him specifically.  I’m thinking.  Well do I get an engraved invitation to this party too.   JHB straightens up and says: well yes I do.  But he doesn’t know how to do it.  Gets the first few questions right then reverts to cross examining the expert instead.  I object. The judge stops him. 

As we continue to make our way through the photos something will catch JHB’s attention and he will call out that he wants to voir dire.  And it will be cross.  And I object.  And the court tells him he’s not doing voir dire.  And then JHB will give up and say he’ll do it later.  And 10 minutes later he’ll try it all again with the same result.

Meanwhile, the photos keep coming.  His client is whispering in his ear and sending him notes. And JHB is getting more and more agitated.  At one point with angry eyes he yells at me in in front of the jury.  Oh yes.  It is all going splendidly well.

When I was a younger lawyer sometimes would let the agitation of the moment get the best of me.  Wasn’t always polite to opposing counsel.  And acted out.  But this version of me – the 61 year version of me.  I should be all the way zen.  But apparently am not.  Just as we duke it out when the jury isn’t there.  We are duking it out when they are.   

Before trial began I had asked Judge Kn if he allowed speaking objections and JHB butted in – absolutely not he didn’t believe in them.  And yet from the moment trial began it is speaking objection hell and I am right down there with that devil.

Maybe it would be different if I also was a 6’4 something old white male with a big booming voice.  But as a small hapa female who needs a mic to be heard, I don’t have the luxury of just sitting back and hoping the jury will take my side in all of this.  No.  If I sit there and do not stand up for myself and my clients and witnesses – JHB’s bullying will be viewed as what good trial lawyers are supposed to do.  Our side will be written off as the weak one.

 After the jury leaves for the day, Judge Knodel listens to JHB and I wrangle more.  I tell him JHB is disrupting our case with his pseudo voir dire and needs to stop.  JHB is arguing about anything he can think of.  Judge K ends the day by saying that the witness has been qualified.  And so tomorrow we move on.

Photo: the wonderful court reporter during a recess