Trial Diary Day 12: McNamara v. Nessl wrongful murder trial

Trial day 12.

We don’t finish.

Have packed up the car.  Exited the hotel.  Am wearing my last court outfit.  And we are not going to finish.

Rewind.

Wake up an hour early.  Unsettled.  Had been working on closing at night.  And it still has not all the way come together.  Lie there.  And let brain bounce wherever it wants to go.  There’s a lot of noise involved in this case.  Mudslinging.  Collateral issues.  Family drama.  Lawyer dramatics.  And of course the ultimate question of whether this was suicide or murder.  Need to figure how to navigate all of this.

Am wearing a white jacket with a long black knit skirt and boots.  It was meant to be my closing outfit but  won’t be.

JHB’s turn.  The defense case begins.  First up – excerpts from the deposition of Mrs. B – the neighbor whose testimony we showed by video in direct.  Because JHB never designated anything until after trial began, we didn’t/couldn’t include the sections he wanted in our video edited version.  So now he’s reading the excerpts.  This means that it is fairly disjointed.  But still, and honestly I have to hand it to him.  He does a good job.  Mainly he has an actor’s voice and is nice and slow.  But it is more than that.

As much as I can’t stand him and he me.  Still give him credit.  We have been fighting nonstop for two and a half weeks.  He has been typically horrible to me on a personal level.  Continues to want to make personal digs and attacks.  Arguing to the judge things like:  well, an experienced attorney would never have done what she just did.

He is relentless to the point of being obnoxious and tiresome – but still he is relentless which is a key absolutely necessary trait in a trial lawyer.   He is out of his element in a civil case but not the courtroom.  And while all my friends, family, firm members, and others who are watching tell me things like – he’s such a bully, or how awful he is.  All I see is how the jury sees him. And they like him.

This is not surprising to me even as it continues to be disappointing.  If I acted even remotely similar to how he behaves they would brand me a B@%# in a second.  A double standard I’m used to even though sometimes it gets to me.

 As between he and I – would bet most of the jurors here like him better.  He is bumbling and does things wrong.  He is not smooth.  He shuffles papers.  And is distracted.  Goes off point.  And glares, rolls his eyes and cannot control his manners.  He is Trumpian in this way.  A bull in the china shop sort of way.  Bombastic in presentation.  Overly theatrical. And yet somehow it is compelling.  Even charming to this jury.

Versus calm high school Karen.  That person so many detest sitting in the front of the class raising her hand with the correct answer. 

They listen as he reads the deposition excerpts.  And I sense they are making an effort to figure out the points he is trying to make.  Which are hard to understand with his format.

Next he calls the defendant.  He avoids talking about the actual events leading up to the shooting. Doesn’t want to give me a second whack at that.  Begins with bringing up the muck involving her fight with J Mc.  Alleged taking of her baby books, passport.  Work as a farm. 

Jury is excused.  JHB wants his client to be able to talk about what they were discussing leading up to the shooting.  Judge has already ruled it will be a very narrow scope.  Invites them to make an offer of proof.  They do.  Each item I have to battle back.  Objection dead man’s statute, hearsay, collateral, and overly prejudicial under ER 403.  Eventually Judge K holds the line.  But just allowing it to be reopened time and time again is taking its toll.  Defendant is instructed she can say the topics but not go into further detail. 

Then we discuss the issue of prior suicide attempts.  No one has testified to this yet.  There has not even been testimony that he was depressed.  But JHB wants in suicide attempts.  Offer of proof says Judge Kn.  JHB says – did Mr. Mc ever attempt suicide.  And his client says … well she doesn’t say yes.    He made gestures to allegedly punish her if they were arguing.  But no.  And you can see JHB’s eyeballs about come out of their sockets.  He is glaring at her.  Shaking his head.  This makes that issue easy for Judge K.

Jury comes back in.  JHB completes direct of his client.  And then it’s my turn.  It won’t be long.  But the aftermath will be.  Because after all of my joy at JHB’s opening of the door yesterday.  I open it too. 

In her direct TN said that they were moving to Belize for a fresh new start.  Leasing out the farm in Soap Lake and moving permanently.  And so I asked her to explain how she could make a brand new start given that she had children one of whom was 11.  In particular – I said something like – you were willing to leave your child behind.  Which then turned into (and here’s where I opened the door).  Didn’t you lose custody of your child.  Weren’t you only allowed supervised visitations.  Has she ever lived with you since 2012.

Now.  JHB does no followup.  He doesn’t recognize I’ve opened the door.  Nor do I.  Neither of us do.  The  jury questions are viewed.  One says:  why did you have supervised visitation.

JHB says: she opened the door.  He is gleeful.  Joyous.  Loud as heck.  Judge says: didn’t you.  I say: no.  Judge says to JHB: but you didn’t followup with any questions.  JHB says:  why would I.  I was waiting for her to open the door and she did and so I didn’t want to say anything.  Which is a fancy way of saying:  well I didn’t realize it until the jury just asked this question.

For the next hour and a half we are arguing this issue all over again.  Does it come in does it not.  We pull up the court order from the child custody.  It says supervised visitation.  And that there is to be no contact between child and maternal uncle.  It becomes an exhibit and will be admitted.

But JHB wants the whole story in.  A story which in the next offer of proof from TN involves so and so telling her that so and so said X.  And that her mother claimed X and X because she didn’t like the family.  And about as much rumor and guck as you could ever imagine.  JHB knowing that his ship and sinking gets louder and more dogmatic.  Judge K leans this way and that way and we have lunch and return and are still figuring all this out.  By now Furhad has printed out the original complaint in the custody case and none of the rumor is included in there.  So he sticks to his original ruling.  None of that stuff is coming in other than the fact missing their kids was something she and Mr. Mc talked about the evening of his shooting.

Jury return.  Their questions are answered.  JHB reads two more deposition excerpts.  And rests.

Jury is excused. 

We break early.   With the plan to close tomorrow.

On the way home call Alysha to apologize.  I had thought we would be done Tuesday.  She has been watching Nala for me.  Am driving out of Ephrata city limits.  Begin to cry.  Catches me off guard.  She says what’s wrong.  Nothing is really wrong.  So much as it is all just so much.  So much fighting.  So much anxiety.  So much fear that the judge will let something in, reverse a ruling, be swayed by JHB.  So much drama.  So much turmoil.  Worry that TN is coming across as the underdog. And the ever present pressure of doing everything in my heart, soul, mental and physical being – to get this right for my clients.

Get back to the hotel.  Haul suitcase back in.  They give me another key. 

Tomorrow we close.

Photo: The dress I ended up wearing 3 days in a row the last week of trial. Thank you lululemon.