It's All in the Tie

I was watching “My Cousin Vinny” last night and it brought to mind this passage from Guilty: The Collapse of Criminal Justice by Harold Rothwax:

I had a funny incident some years ago with a lawyer, now deceased, named Joe D. Joe was what we called a Baxter Street lawyer. He practiced out of a little storefront behind the courthouse. And he looked the part—porcine and kind of greasy, with a slick toupee perched ceremoniously on top of his head. Now, Baxter Street lawyers aren't exactly the cream of the profession, but Joe was very bright and very realistic. He saw things clearly, and there was no nonsense about him. He did a good, workmanlike job.

One day Joe walked into my courtroom, prepared to do a voir dire, which is the questioning of prospective jurors. He was wearing a garish tie—a bright pattern of orange and lime green. It was a truly ugly tie. It could make you cringe, that tie. It fell halfway over his substantial belly, hanging like a whorehouse flag.

The first thing Joe did when he stood up to address the prospective jurors was to grab his tie and push it forward into their faces, booming, "See this tie? See this tie? How many of you don't like this tie?"

"Joe," I chastened him at sidebar, "in my view, that is not a proper question. It demeans the process. It makes it silly. It makes it like a circus. Whether that is your intent or not, it is not an appropriate question on voir dire. If you think people are not going to like your tie, wear a tie that you think they will like. If you have no questions on voir dire don't ask any. But this is not a proper question."

Joe responded very candidly. "Judge," he said, "you say it's not a proper question. I've been doing this for twenty years. I've appeared in every courtroom in this building and no other judge has ever stopped me. And you know why they don't stop me, Judge? Not because you're wrong. You're not wrong; you're absolutely right. They don't stop me because that's my only goddamn question. Okay? And they're so happy to have a short voir dire that they let me ask anything. Okay? Now, if that's not okay, I don't have any other questions. But don't blame me. Every judge in this building lets me do it except you."

I had to laugh. In his direct way, Joe told it like it was. And, of course, his purpose in asking about the tie was clear. He knew he wasn't Robert Redford. He wanted to get a feel for the way the jury responded to him.
p. 136-38.

Lest any of you think that you should run out and buy this book I must recommend against it. I read this book many years ago when I was in law school and thought it quirky then. Having looked back through it after practicing for a few years, now I find it downright scary. One particularly disturbing passage:

Our entire system prior to a defendant going to trial is composed of a set of probability screens. Defendants don’t just show up in court on a whim, railroaded by the system. By the time a person reaches trial, he has been deemed “probably guilty” several times - by the grand jury and by the court in preliminary hearings.
P. 133

Rothwax, after sitting as a trial judge in New York for 25 years, does not understand probable cause. Probable cause is clearly less than probably guilty; probably guilty would be the preponderance of the evidence standard. To be fair, I don’t practice in New York. It’s possible that NY imposes a higher standard of proof prior to trial than everywhere else. Any NY lawyers/students/professors out there who sets me straight in the comments will be mightily appreciated.