It’s the end of the day. Driving back to the hotel. On the phone with best friend Shellie. Trying to explain what trial is like. And the only word that does it justice is – war. It is war Shellie. In all my years of trying cases, I have never been in a trial like this. Where the defense attorney and I literally detest each other. And it is all playing out in front of the jury. Because the judge is not restraining us at all. JHB is a bully of the highest order. And many years ago my mother taught me what to do about bullies.
We were in grade school. My neighbor Kirk who was both friend and nemesis depending on who he was with, decided that he was going to be a bully. We were on our little kid bikes. And he pushed me off mine. Knocked me down. And laughed.
I ran inside with my scraped knee. Crying. Told mom. Expecting to be coddled. Instead she said: you need to go back out there and sock him. She demonstrated the move – with closed fist. Wham. I stopped crying. Got a grip. Went outside. And socked him as hard as I could. Which may not have been especially hard. But the pattern was set. All of us Koehler kids are the same – don’t mess with us because we will hit back.
And so goes this trial.
We start off with TG – long time friend of Defendant. Have flagged his deposition and am going to impeach him with it. JHB objects to me asking leading questions. Judge Kn says: but he’s a hostile witness. And reads from the rule correctly. JHB theatrically makes a wide sweep of his arms. Face trying to play to the audience members in the far back row: But he’s not HOSTILE! I point out that Judge Kn is correct you don’t need to be HOSTILE, you just need to be aligned with the other side.
However, I really don’t need to be mean to this witness who is looking terribly uncomfortable. An Airforce vet of 14 years deserves our respect. And so instead of impeaching him or leading him, I decide to simply give him his deposition so he can use it to help to refresh his memory. Which he says it does. This way we are able to get through his brief testimony through the refreshment technique which is a respectful and gentle way to do it. Ultimately this turns out to be a good strategy because the witness says (upon the court’s questioning) that he has a medical memory problem and is on medication. Which is sad. He contradicts JHB’s opening in two major ways: 1) Def said that she saw blood (she told many others no blood) ; and 2) directly after the death Defendant told him she knew about the will (JHB told the jury in opening she had no idea she was the sole beneficiary).
JHB does not cross the witness.
Next up is our surprise best witness. The witness we didn’t even know how much we wanted. The son of defendant – he had been deposed and we were simply going to read off some of his deposition excerpts because he lived out of town. Court had already granted that motion. JHB smugly announces that he has spoken to the young man and he will come to court. Well great we say. So the son is next up. Except as he walks in and is about to get seated, realize that I can’t figure out what I did with my notes on his testimony. Look for them. Can’t find them. Tell the court we’d like to call Defendant instead. Son leaves and she goes up there.
Apparently she is rattled by this. Was not prepared. My clients think it is a genius move. Even though it is really my flub.
This is how we begin to examine the defendant. Off kilter. She doesn’t remember anything but fortunately there’s a nice hefty deposition to help her. I can’t stand because the jurors are back of and around us. Anywhere I stand, I will block the jury or show some of them my back. So am sitting in my chair with my little laptop stand between us. Don’t think I have ever examined trial witnesses before while sitting. It doesn’t feel right at first. Until after a while I stop noticing.
We are rebuilding the timeline presented during opening. Ex. 106 is up in all of its handwritten ugliness on the big board. We go through and check off all the gifts given to her. All of his property transferred within the first 5 months of the relationship.
Break for lunch. Realize did not replace notes from the witness. Never had made them because he was to be by deposition. So make some notes.
Return after lunch. Interrupt defendant’s testimony with the son. He is dressed up in a vest and matching slacks, button down shirt. Hair immaculate. A very good looking young man who has changed a lot since Andrew deposed him six years ago and described him as a skater looking dude. He is here to help his mom. Technically a hostile witness. JHB gets all wound up again when I ask a question that I guess could be seen as leading but was just to move the witness forward in time. A nothing sort of question. But even though I could lead him I don’t have to. Even though he has the deposition to help him if he needs it, his memory is very good. Inside am clapping. Cheering him on. Smiling at him. Helping him testify. He says that his mom always knew about the will and that she was the sole beneficiary. That there was blood. That when she found Mr. Mc the gun was in his hand. And (oh I wanted to applaud) that the bullet hole was in the back of his head.
JHB’s cross lasts a minute – asking what he does for a living.
Defendant resumes the stand and is a brutal slog. Take her through damning fact after damning fact. Point out her discrepancies between the police statement and her deposition. And then of course there is a fight.
Right in front of the jury. It has been brewing all day. The dagger looks that JHB sends me. My constant expression back of disdain. The unrelenting speaking objections. Judge Knodel has given up trying to restrain JHB. They crack open their books and make legal arguments right in front of the jury.
The last stray for JHB is that I ask defendant as we look at my timeline of money chart – how much all of those real estate parcels were worth. She doesn’t know. I say: don’t you get assessors notices. She says: I don’t read them. I say: you have no idea if this is a million dollars worth of property in 2012. JHB objects and the judge makes me pull out the word million. So I say again: you are saying that you have no idea of the value of all this property. She says: no. And I say: Really.
Now it is just one word. But it is a hybrid question and comment. And I do say it with an inflection of probable disbelief. I admit it. But so what. How bad is it to say: Really. When someone says something that is pretty unbelievable.
JHB shouts out. And yes I mean shouts out. Objection. Your Honor. Counsel is being Unprofessional!
I don’t sit there wondering– did he just call me unprofessional in front of the jury. I react immediately with my fist closed and say: Your honor I will not have him call me unprofessional in front of the jury – he is being unprofessional. It is no secret that counsel do not like each other. But we should at least be able to act civilized.
Something along those lines.
JHB is still ranting when Judge K dismisses the jury for about the 10th time. They are used to all of our squabbling by now and file out.
JHB pretty much shouts – if she was in federal court she would be thrown in jail for saying that and then telling the jury we don’t like each other. If Coughenour was here she would be in jail.
And I say – well the last time I tried a case in front of Judge Coughenour he called me up to tell me what an excellent job I was doing. Oh he is spitting with fury. Complaining that I keep interrupting him. Which I admit I do because otherwise I would never be able to get a word in. He is a trial floor hog. Wants to be the king and I keep pushing him off his fake throne.
Judge Knodel says – lifting his shoulders: what do you want me to do. As chaos reigns.
We get ourselves under control. The jury returns. And we fight our way through the end of the day.
Photo: Furhad waiting with me to get back in the courtroom during a break.