Trial Diary Day 2: McNamara v. Nessl civil murder case
Grant County has a beautiful old courthouse façade set back on a majestic green lawn. But it is not where superior court is. No. If you enter via those pretty portals you have a winding path to follow. First you have to walk to the end of the hall. Down the stairs. Go outside. Across a cement patio. To a separate soulless block of a building with no windows. That is where we are trying cases. And so I enter through that ugly back entrance properly today.
We are here early because the Court allowed additional time to make a decision regarding JHB’s requests that his late objections be permitted to the perpetuation depositions. In order to deal with this all over again, last night I pulled up old emails between Andrew and JHB and court orders and Furhad’s draft and fashioned a supplement brief which I turned in at 12:35 am. So I am not in a gracious mood.
Judge K allows JHB to go first. What additional authority do you have he, says. JHB says: two civil attorneys told me my objections were correct. Ya. The old – my buddies told me I could do it – citation of non authority. My turn. Go through it all again referring to my brief and the sanctity of the Court’s power to enter orders which it already made. The Court rules that JHB has waived his objections by failing to timely raise them. However, per ER 104, he will allow him to late designate excerpts he wants to add in for completeness sake.
This means that when it’s time to watch the depositions – I will play the video that has been edited. Then he will read his designations. And then I will read any counter designations. I ask that his designations be given before 5 today and the judge doesn’t make him. Sometime tonight JHB will send them.
We turn to a supplemental motion in limine that I have just filed. First preventing JHB from talking about his illnesses to garner sympathy or for any purpose. Second to prevent him from a) saying as he did yesterday that I was trying to perpetuate a fraud upon the court or b) engage in other antics designed to garner a mistrial. He blusters quite a bit but eventually agrees he has no intention of doing so. The court enters the orders.
The jury coordinator meanwhile has given us notebooks with 15 juror’s names – this morning’s panel. We have 15 minutes to look over the forms. I’ve decided that this voir dire will not follow my typical approach. Numbers of people know something about the case. A few of them know my clients. If anyone should be wanting to do a great voir dire it should be JHB.
My entire VD note on a single pink sticky reads as follows:
· BOP
· Gun death
· Victim of violent crime
· Have you ever watched the tv show from the Series “Forbidden: Dying for Love. Episode: Fruit of the Family Tree.”
The judge has given us 20 and 15 minutes for each round. We will end up using 15 and 5. I want it short and sweet. JHB follows my lead. But he shouldn’t.
The Courts in Grant County follow a script that was tailored by a former beloved senior judge. It is excellent – more real and less legalese. It takes about 15 minutes to read. Including this description of the case:
THE CASE: THIS IS A CIVIL WRONGUL DEATH CASE BROUGHT BY THE PLAINTIFF ESTATE OF T Mc AND HIS TWO ADULT CHILDREN. DEFENDANT TN WAS IN A ROMATIC RELATIONSHIP WITH MR. Mc.
PLAINTIFF CLAIMS THAT ON DECEMBER 25TH DEFENDANT SHOT AND KILLED MR. Mc IN BELIZE FOR FINACIAL GAIN. DEFENDANT TN DENIES THESE ALLEGATIONS. DEFENDANT TN CLAIMS THAT MR. Mc SHOT AND KILLED HIMSELF.
While the court reads. Am sitting totally still. Don’t work on the computer. Don’t make notes or take notes. Just sit there with the jury. Motionless in the moment. Here is what I notice.
First, our set up has now been reconfigured. Our table is directly facing defendant’s table. A podium is stuck in between the two tables at the far end closest to where the gallery would otherwise be. The jurors are dotted around the gallery. I’ve moved so am sitting next to the podium and can see everyone. Otherwise it blocks me completely.
JHB has come to court in his small town court attire. This is the person who after seeing me on tv during a press conference on a different case, could not resist sending me this note: “Get some nicer clothes!! Not sure it will help but whatever. John.”
Yesterday when there was no jury he was in a gray suit that was matched up nicely with dress shoes. A blue dotted shirt which we all knew to be short sleeved since he took off his jacket to display his body parts to the court. Today he is wearing creamsicle colored socks with hush puppy type shoes. Kaki pants. And an old blue rumpled jacket that while not denim looks awful close. His striped tie is nothing short of hideous. It does have kaki and blue in it. I will bet that he did not purchase it new. On the other hand his hair is still gelled straight back all the way slick. Vanity has its limits.
By contrast Furhad is wearing a dark blue slim suit with polished brown shoes which match his perfect brown tie over a pressed white shirt. Will the jury punish us because he looks like a young nattily dressed professional. Doubt it.
Voir dire of the morning panel goes swiftly. My job is to build a bond. Do that gently and warmly. Even so lose a few jurors – victims of violent crime who would be emotionally triggered in this case. JHB goes next. Too focused on bouncing off two jurors who’ve heard about the case. Finishes with them. Then talks about suicide. This is his best series of questions. Time’s up. He sits down. With a bang. Because he’s tall. And his chair is set on its lowest setting. He looks the height of a child at the dinner table. A good half a foot below his client. The entire day passes without him realizing that he should adjust it. But I digress.
He ends voir dire without asking the single most important question that he needed to have asked. The most uncomfortable question. The question that would have rattled the jury. The question that he fears the most. The question that he tried to have stricken via motions in limine but lost because it is essential to the case. The question that will be answered whether he likes it or not. By me during opening.
Break for lunch. Am sitting with my back against the courtroom wall on the hard wood bench. Across the hall, jurors are slowly drifting in. There is a desk made of wood in front of the multipurpose room. Those staffing the jury room take turns at the desk. About 45 minutes pass.
There is a commotion. Look up. The administrator is telling a man he must wear a mask. He says he will not and has not done so for two years and will not start now. He is wearing a camouflage jacket with a US flag on the shoulder. Retired military. Shouts that he will not wear a mask. It is against his religion and his politics. He talks about more people dying of influenza than covid and then starts discussing the science of how disease spreads. And that you must never take a knee to tyranny. It gets to the point where I need to tune him out. They seat him outside of the jury room to wait. Which means I can’t tune it out. Once the court opens he’ll never make it in. He’ll be let go.
Half an hour passes. Furhad returns from lunch and has brought me some snacks. The conspiracy theorist is still in full bloom: it’s easy for the masses to be sheep he explains. JHB walks up the stairs with his mask under his chin. And apparently the two hit it off. Which is another reason why the juror is let go later.
That afternoon we finish a second round of voir dire. But there are not enough jurors to get us a panel if we exercise all of our challenges. We will do a third round tomorrow morning. Then bring all three remaining panelists together in the afternoon.
Before we break the judge asks for any matters that need to be discussed. JHB mumbles something. Then Judge K looks expectantly at me. Because I always have something to follow up on. He’s getting used to that phenomenum.
In my junior year of High School, my English teacher was Mr. K. A nice and personable guy. But his grammar was wanting. Day after day, I would correct him. In front of the class. Until, he finally had enough. Removed me. I finished out that course with a tutor in the library.
That relationship with Mr. K explains my role in this trial. JHB throws up nonsense continually. Just about everything he says procedurally I need to correct. And though it is frustrating to be constantly side tracked with needing to explain and refocus. Judge K is taking the time to get it right.
And so we end the day with me asking the court to chastise the defendant for speaking out loud to the jury when JHB asked why one of them looked so uncomfortable. Answer: he hated the mask. Defendant said something to the effect of: yes I do too. Endorsing his complaint. She said it loudly. I could hear her clear as day. JHB looks confused as she tries to make some explanation. Judge K looks down at her and tells her not to do that again.
High School Karen strikes again.
Photo: my voir dire notes.