Trial Diary Day 13: McNamara v. Nessl wrongful murder trial

Trial day 13.

Not only do we not finish.  But am crying again.  On the phone with Alysha and Noelle.  Making journey back from Ephrata to the hotel in George.

Rewind.

Wake up.  Well rested.  Sun shining in through the crack in the shades.    Get ready.  Wear dress for the second time this week.  But it is lululemon and washable.  A miracle dress.  Pack everything up.  Haul suitcase out the door into the car.  Sure this is the final goodbye.    The Microtel at George has been good to me.  My every need was more than met.   [This is not a paid commercial but C Mc built it and deserves to be proud].

Court administrator emails:  can you please send over the jury instructions as soon as possible.  This is our last routine task.  We need to take formal exceptions of which there are none.  We know this because JHB did not submit a set and has repeatedly said that ours are fine.  Every day asked in fact.  Including yesterday. 

Arrive on time. Say:  your honor if we can take exceptions now then the administrator can print everything off while we are doing rebuttal which should take half an hour.  Judge doesn’t do as I suggest.  He says let’s do rebuttal first. 

Rebuttal does not go half an hour as planned. 

First up is a deposition clip of the defendant that takes 3 minutes.  Then up she goes on the witness stand.  My clients’ family has been busy.  Yesterday she told the jury that she has farmed the land all by herself with help from X since 2015 or 16.  Et voila.  Family locates a lease filed with the county.  Mark as exhibit.  What’s this.  That isn’t what it is she says, that’s null and void.  I say:  what is it.  She says:  I don’t know.  I say:  is this a lease for 2 years signed in 2016.  She doesn’t want to say yes. I say is this for all of the parcels that you were quit claimed.  She says she doesn’t know.  I put the quit claim up on the screen and have her compare the two.    And I say have you leased it out to anyone else and she says well maybe depending on this case..

 JHB’s turn:  explain why it’s null and void.  And she talks about how this person couldn’t come up with the money. JHB decides to spend 10 minutes reading pages of her deposition.  Silly pages.  Like did you put soap in your sink when you were doing the dishes.  We don’t care even though it is pointless. 

Back to me.  Back to the lease.  Say:  this same person is still working on the farm.  What is the contract that he is working under.  But she is helpless and doesn’t know anything.  And so I say: did you sign a lease for the hay with  the H’s who own the feed store in Jan. 2022.  Waving a piece of paper which she apparently thinks is another lease but is really just a piece of paper.  She says: yes. 

Next is J Mc.  Furhad has printed out a foot tall stack of pages courtesy of the MRK Law Group across the street who have helped us throughout the trial (bless you all).  Every photo and declaration and report from Belize.  I have it marked as a demonstrative exhibit.  Bring it up to the witness area.  Have to stand on tip toes to get it up there (play the moment).  Say:  what is this.  She takes a moment looking through everything.  She says:  this is the file I got from Belize.  I say:  is this what was given to the defense years ago.  She says: yes.  At this point, JHB who is sitting there and not doing anything sits straighter because Judge Kn erupts.  Over a pile of papers.  He says:  what is that.  And he dismisses the jury.

This is the angriest I’ve ever seen him about anything.  He is so mild mannered when JHB is bullying him.  So even tempered through everything.  But he just chastised me in front of the jury over a demonstrative paper pile.  And it is pretty disorienting.  This is not some sly tactic. It is just an illustrative moment in trial.  He is shouting at me.  Get it down.  Put that away!  You cannot use this witness to discredit an expert.

Am thinking.  Am I on the moon.  Have I been transported through the multiverse.  Truly have no idea what is going on as he yells.  Say:  your honor this is a demonstrative exhibit.  I’m not asking for it to be admitted.  I’m introducing it to show the volume of materials collected and which the defense has had in its possession and available for use.  He storms off the bench.

Jury comes back after a break.  Ask J Mc – a question designed to be the last one.  Something about why does this lawsuit matter.  And Judge K stops it before even an objection has been made.  Tells her she can’t answer it.  We move on to C Mc.

He goes through all the work he did on the farm even after his dad and Def. were living together – to show how loving he was despite the circumstances.  His best answer is about a statement D claims he made saying he didn’t care an “F” about the will.  C Mc replays that conversation and uses the whole expletive as half the jury grins at him.  He and his sister were not raised to look forward to an inheritance.  They have through hard work made their way to a point even more financially successful than their dad.  At that time he made that statement what he cared about was his dad.  Not a will or anything else.  Ask him a final question too.  Which Judge K won’t allow to be asked.  As the jury wonders why.

Okay we are done.  We rest.  It is 11:00.  Now comes the easy part. 

We are going to take exceptions to the jury instructions.  We submitted ours a week before trial according to court order.  JHB submitted zero.  First day of trial Judge K asks about that and JHB says  - he’ll get to it.   By the second week of trial JHB says that he agrees with our version and is not submitting any more.  Judge K continues to ask thru the third week and JHB confirms each time this is all good. 

JHB says that he disagrees with Instruction 8.  The slayer statute instruction that Shannon worked diligently to perfect.  Judge wants argument.  And Furhad starts to get ready.  And judge says – you need 5 minutes.  Furhad pushes back.  No your honor we need more time.  Judge gives us 15.

 JHB has created havoc again.  And the judge lets him get away with it.  Without any push back.  Let me correct that… there’s pushback all right.  Just not at JHB.

Furhad argues the instruction.  The judge is frustrated. He says we are taking a break.   I’m thinking what the heck.  We return.  Furhad is at MRK firm across the street awaiting my instruction.  Judge K is sweating.  I can see it on his forehead.  He is upset and looking like he did when he yelled at me about the binder.

He says:  I’m not going to use #8.   I’m thinking I didn’t hear correctly.  JHB says: what… even he is surprised.  Judge K:  It’s out we will renumber.  Do you have anything to add.  I start to say something and he says:  we are going to lose this jury. This case is getting done today. 

Inside am thinking – just when you think the coast is clear.  That there is no more reason for anxiety that something is going to go cattywampus…  Calmly I say:  your honor I need to make an exception.  OK: he says grudgingly.  So I begin.  Taking my time.  So that maybe he will hear me.

Explain that this case is a wrongful death slayer statute action.  That slayer statute is set forth in the complaint.  And that failure to give an instruction will be reversible error on appeal.  I don’t say it threateningly but matter of fact.  The words no trial judge wants to hear. 

Continuing:  if it was your intent to strike this instruction then we should have been given an opportunity to submit an alternative.   Judge K says:  well WHY didn’t you then.  Say resuming calm yoga like façade:  your honor.  Mr. Brown failed to submit instructions a month ago and every day up to now.  If he disagreed with ours, he should have submitted his own version.  Or brought it to our attention.  He waited until we were getting ready to print them out before doing so.  This is his fault not ours.  It would have taken us 10 minutes to change this.  In fact I will do it now.  And read him new language.  Judge K: continues to scold me for not doing this earlier then says he will give me 10 minutes to get it to him.

Recess.

Call Furhad.  Tell him what to do.  Law firm prints it out and he runs in the door.  Just as Judge K takes the bench and barks out (without saying please):  where is it. Hand it up.  Hand it to clerk.  Hand it to JHB who created all this bother in the first place.

Lunch.

Sit on bench outside courtroom door.  It will miss me.  Fix PPT.  Match it up to all the jury instructions.  Eat stale crackers and the last two mandarin oranges.

Back in.  Judge reads instructions to the jury.  My head is lowered.  Listen to the familiar mantra.  Letting it wash over me.  Settling into me.  When the judge calls my name at 1:43 (this time will be important) I feel no anxiety.  No flurry of worry.  Just utter calm.  The chaos of the past three weeks falls away as I say: Good afternoon members of the jury.  And go.

No matter how many times I try to describe this.  It is still a wonder.  Closing argument.  My favorite part of trial. There are 38 slides.  Slides to help with understanding instructions.  Pictures of the case.  Exhibits.  And a few timelines.  It is not rehearsed.  Do not practice.  Do not time it though I tell my side that I think it will be around an hour and a half.

It is effortless.  And I just let it flow out of me. Arguing without preaching.  Inviting the jury along. 

I pace a little – constricted by the set up of the perpendicular tables – JHB  just to my right next to his client.  Can sense them too close almost under me.  And as I am building momentum towards that place where we need to be.  As I weave the story through the perspective of what this jury needs to do.  As I am in this place of energy and focus.  Almost right there…

Judge K says – I think we need to take our afternoon break.

It’s as if I was at an Earth Wind and Fire concert – dancing to September – and someone threw a bucket of water over me.  Am stunned. Say:  your honor I only have about 15 minutes left to go.  Glance at the clock.  3:00. 

He tells the jury to leave.

This is the first time in the history of being a trial lawyer that I have been stopped in the middle of closing. Let alone without warning.  It is as if the lights come on in the 3rd act and the audience exits before the 4th has even begun.  And the actors are still on the stage blinking.  Trying to understand what happened.

I sit down.  Try not to let it bother me.  It can’t.  Because I need to continue.  Somehow need to get all of that momentum back and close on the high note place to which we had been heading.

But it gets worse.

Because as I was doing closing, I could feel JHB’s energy.  He was shaken.  He wasn’t ready to deal with the magnitude of my closing.  And he says:  Judge we are not going to finish today.  I can be ready tomorrow.

Judge K without even looking at me says:  I know and they start talking about should we have them come back tomorrow or Monday.

It is 3:00.  The jury will come back at 3:15.  I have 15 minutes left.  JHB says he can be done in less than an hour.  And I am notorious for short rebuttals.  So why can’t we get this done.  Stay 10 extra minutes.

JHB says:  I will need time to set up tomorrow.  What time can I come in.  Will need to move the podium between the tables.  Find a stool.

Judge K says:  we will help you with all of this you can come at 8:30.  Leaves the bench.

Returns.  Says:  I’m going to bring the jury back in.  Several say they have hardships.

He brings them in.  Deals with hardship requests.  Sends them back out.  Tells us he’s going to deny all of the requests.  Brings them back in to tell them the news.  One of them is very disgruntled.  All of them are unhappy.  Judge K. looks at me.  Tells me to continue.

It is now 3:45.  My closing was cut off at the knees 45 minutes ago.  I am focused on not being upset.  But the energy that had been in the room during my closing has been wiped out.   

In my heart I know that I cannot bring the jury to where they were going to be before the grand interruption.  So I don’t even try.  Hit my next slide.  A pile of documents pops up.  The one the judge was for whatever reason mad about earlier.  And he yells at me to take it down.  Excuses the jury.  Tells me it was not admitted.  I say it was demonstrative it doesn’t have to be admitted.  He yells at me and orders me to remove it and I do.  JHB is enjoying all of this greatly.  As he should.

Jury comes in.  The judge instructs them to disregard the pile of paper photo.  I still have the slide up without the picture.  And finish.

Which brings me to the drive home.  Am on the phone with Alysha and Noelle.  And lose it.  Am so angry.  So furious.  Not hurt at all. Not scared.  Or anxious.  Just wicked steaming fighting mad.  How could a judge stop me in the middle of closing argument for a break.  Plus an extra half an hour to talk to jurors about scheduling. 

What. The. Hell.

Photo: The demonstrative exhibit/pile that caused the judge to have a holy cow.