17 November 2014

Ambush in Bartlette: Chapter 31

"Objection, your honor!”

Brad closed his eyes for a second, took a breath and reopened them. He was standing in front of the jury trying to deliver his opening statement and this was the sixth time Pinsky had interrupted him. None of the objections so far had come anywhere close to being sustained.

This time, instead of calling the attorneys over to argue the objection in hushed tones at the bench Judge Isom had the deputy and trooper acting as twin bailiffs escort the jury out of the courtroom.  Then he motioned for Pinsky to speak.

“Judge, the prosecutor used the phrase ‘I believe the evidence will show.’ This is clearly a personal endorsement of the evidence and as such violates my client’s due process rights under the Fifth and Fourteenth Amendments in that it asks the jury to base their observations and opinions on their trust of an official rather than the evidence itself.”

Brad stood from behind the prosecutor’s table and started to walk to the podium, but Judge Isom waved him back to his seat. “Mister Dollerby, if you have anything to say after I am through you will have an opportunity.”

The judge turned, giving Pinsky a stolid look. “Objection overruled. Furthermore, I find as a matter of fact and law that this objection was frivolous - that all the objections you have raised during the Commonwealth’s opening statement have ranged from frivolous to spurious - and that this Court does not believe these objections were made in good faith. As a remedy for this behavior, the Court is instructing you to hold all objections to the Commonwealth’s opening statements until both the Commonwealth and defense have concluded their opening statements.”

Pinsky was immediately back at the podium. “Judge, I object. The Virginia appellate courts are very clear in this. I must make timely objections and this means that I cannot wait until after opening or closing statements are made. I am required to object as the error occurs. Which means that I am required to object during the opening statement or I waive my objection.”

The judge held up a finger to quiet Pinsky. “During a trial, I have wide latitude to shape the law of the case. I’m shaping it. You will not object during opening statements and at this time I am going to extend the same ruling to closing statements. Objections are not meant to be a tactic, they are . . . “

“Judge!” Pinsky cut right across the judge. “I am required to make contemporaneous objections. Your order is contrary to Virginia law . . .”

“Your exception is noted.” The judge cut right back across Pinsky. “The law of this courtroom is that you will not use objections to interfere with statements or argument of other counsel. You will hold all your objections until after opening statements and you will do the same thing during closing arguments.”

“Mister Dollerby, please retake the podium and unless you have something further to add to this discussion we will bring the jury out and try to get through opening statements before we send the jury home for the day.”


Gil was ready to spit nails. He hated small town judges with small town god complexes. This was a capital case  - what did the idiot expect? Every capital murder trial was filled with objections. Everything that could possibly save the defendant's life on appeal had to be objected to so it could be argued on appeal. Otherwise the appellate courts would ignore it no matter how blatantly the prosecutor violated the law.

Sure, the Virginia Supreme Court kept saying that if it was impossible to object then the defense did not have to and the illegal and unconstitutional acts of the trial court and the prosecutor could be argued on appeal without an objection.  However, Gil had read too many opinions from appellate courts to trust that. The first thing appellate courts always did was try to find a way to wiggle out of their responsibilities and he was certain that this impossibility rule would generate a lot of  boilerplate paragraphs but actually be ignored in practice.

Another problem was that the local prosecutor was borderline incompetent. It was obvious this guy had never tried a serious case in his life and that he was not used to trying cases against anyone who knew law and procedure. He kept making all sorts of little mistakes. None of them were significant enough that Gil thought the particular mistake would be enough to get the case overturned on appeal. Nevertheless, the aggregate of hundreds of little mistakes could provide an overall violation of the defendant's due process rights that was impossible for the appellate courts to ignore.  Therefore, Gil had to object to preserve them all on the record.

Still, he held his tongue during the remainder of the prosecutor's opening statement. He wrote every error down and planned to spend at least an hour afterward painstakingly putting them all in the record. Yet, none of the errors were so bad that a trial judge would throw the case out or grant a mistrial based on them and Gil chose not to confront the judge's sense of godhood at that moment. It was more than likely that he and the judge would end up crossways later in the trial and Gil even thought there was a fair chance he would be held in contempt before everything was said and done; it would be far from the first time. For now, he decided to bide his time.


Jerome sat on a plastic chair set along the wall of the hallway outside the courtroom.  The judge excluded all the witnesses just before the opening statements began explaining that “We do this so that people say what they saw rather than being influenced by what others said.” Over the next four days the attorneys summoned various witnesses in and out of the courtroom. First, they worked their way through technical experts who were there to explain evidence having to do with guns, fingerprints, and explosions. Then investigators from the State Police and the FBI went in. Up through that point Jerome sat in the tiny library; he read, prayed, and spent several hours in small talk with other witnesses.

Starting yesterday, the state troopers brought witnesses from jail to testify and cleared out the room so they could store the orange clad men in it. Jerome found himself banished to the hallway.  Talking in anything more than a low whisper was discouraged because the sound carried into the courtroom so Jerome was working his way through The New Man.  Not a follower of the mystic path himself, he nevertheless tried to understand it and if you were looking to understand mysticism you went to Merton. Besides which, The New Man was the last book of substance Saint Berlinda had in its one bookshelf that Jerome had not yet read. If the trial went much longer he would be reduced to bringing his Vulgate and redoubling his efforts to read the Holy Book as his namesake had translated it.  Depending on how long the trial lasted, he might even get his Latin up to a level that Bishop Mannion would stop fussing at him about it.

There were yells in the courtroom and Jerome looked over at the doorway. Double doors blocked his view of anything and the words being yelled were garbled just enough to be outside his ability to understand.  One of the yellers was the witness, the former police chief of Yared, and the second was the defense attorney. Then the judge’s voice shouted them both down. Less than five minutes later the witness was escorted out looking like he was ready to chew nails.


Until yesterday the prosecutor was wasting the court’s time and trying to bore everyone in the courtroom to death. Then he started calling prisoners who were involved in the drug conspiracy. Gil objected, but the judge ruled that it all went toward a potential motive and the jury would be the ones to weigh if and how much the drug dealing was involved. It was just another in the long line of mistakes the judge had made so far.

The first couple prisoners were relatively minor and nothing they said had anything to do with Gil’s client. Then the prosecutor called Mark Poplin. Poplin was one of those guys defense attorneys love and Gil would never understand why prosecutors called them. Poplin would testify the moon was made of green cheese if he thought it would lessen his time in prison by a day.

Poplin described what he claimed to be the hierarchy of the local drug trade.  According to him, Jeff Sanger was the man running the protection side of the racket. From the tiny Investigation Section of the Bartlette County Sheriff’s Department, Sanger was responsible for the security of the drug transportation pipeline as it went through Northeastern Tennessee, Southwestern Virginia, and Southeastern Kentucky.

Poplin was a weasel and his story was implausible even before Gil cross examined him. There was no way a deputy from a small time sheriff’s department could run eight to ten counties in three different states. The cross examination took almost two hours and by the time Gil was finished the guy on the stand looked an utter buffoon. By the time Gil passed the old man in the witness chair back to the prosecutor every bit of his story was destroyed.  As the prosecutor returned to the podium to try to salvage his case the old man’s eyes remained fixed on Gil in a flat stare.

The prosecutor asked one question before Poplin started ranting about “rich New York Yankees” coming down and making life miserable for the “good Christian people of Bartlette County.”  The blatant bigotry caught Gil by surprise and it took him a few seconds to object. When he did he had to shout to be heard because the old man kept trying to talk over him. The judge shouted both of them down and had the bailiffs escort Poplin out of the courtroom. Then he sent the jury out as well.

Gil moved for a mistrial the moment the jury was gone. The prosecutor asked the judge to give a “curative instruction.” The judge - shock of shocks - sided with the prosecutor.  The jury was marched back in and the judge told them to disregard all of the statements Poplin made after the prosecutor’s last question. He went on to tell them that Gil was an attorney from Fairfax, Virginia and he was here because he was one of the few people in Virginia qualified to handle “this kind of case” and he had been appointed by the court. Having done this, the judge released the jury for the weekend.

Gil renewed his motion for a mistrial, but the judge must have had an appointment he needed to get to because he cut Gil off in mid-sentence, informing him that if he had any new arguments in favor of a mistrial he should write them down and submit them in the form of a written motion on Monday. When Gil objected the judge rolled his eyes, stood, and left the courtroom before the bailiff could finish yelling “All rise.”


Calling Mark Poplin to testify was a gamble and it went sideways right from the beginning. The only reason Brad put Poplin on the witness stand was to establish that Jeff Sanger was involved in the overall conspiracy and wanted to be the next sheriff.

Poplin had his own agenda.  Interviewed twice before the trial started, he only said that Jeff provided protection from the Sheriff's Department and that Jeff was worried that Bo would keep him from becoming sheriff. On the stand Poplin painted Jeff as the biggest bad guy in the local organization. Jeff supposedly kept everyone in Virginia, Tennessee, and Kentucky in line - including Poplin. Brad kept trying to get Poplin back on point, but every question led to another long winded explanation that Jeff was the big bad guy and Poplin was not.

When Brad handed the witness over to the defense attorney things went from bad to worse. At first Pinsky let his answers ramble on as he made the story bigger and more complicated. Poplin seemed determined not to answer any question with an "I don't know." After about forty-five minutes of this, the defense attorney ripped the testimony to shreds. After an hour of making Poplin look like a liar and a fool the defense attorney went back to his table and the judge called Brad to the podium to ask any questions he had to rebut the damage.

Brad walked to the podium slowly. He was only going to ask two questions. Was Jeff Sanger worried about the possible election of Bo and was Jeff involved in the drug conspiracy? He could see that Mark Poplin was pissed from his hour of arguing with Pinsky, but he hoped Poplin would be worn out enough to answer with a simple "Yes." He should have known better.

Brad only asked one question and Poplin ignored it. Instead, he pointed a finger at Pinsky and let rip. It was hard to make out everything that Poplin said because Pinsky got up and started yelling "Objection" over and over. Still, everyone heard Poplin call him "a rich Yankee from New York City" and accuse him of "coming down here where he isn't wanted to mess with people."

Judge Isom shouted them both down and had the witness and the jurors escorted from the room. Then he waved for Pinsky to proceed. Pinsky, of course, asked for a mistrial.

At first Brad thought Judge Isom was going to give it to him. The judge was known for his temper and today was no exception. If he had the power to hang someone for contempt of court Brad was pretty sure the judge would have strung Mark Poplin up directly in front of the courthouse to warn others against acting stupid in his courtroom. The judge was in a lather. He even interrupted Pinsky’s motion a couple times to add in his own little soliloquies. It looked bad.

Until Pinsky made a mistake. He started talking about how Poplin’s statements were meant to inflame the anti-Jewish sentiment of the jurors.  As Pinsky spoke at length about how labeling him a rich Yankee from New York was a derogatory way of besmirching him for his Jewish heritage, Judge Isom quieted down, sipped from his container of coffee, and stared at the lawyer. Pinsky seemed to take this as agreement, but Brad had been on the receiving end of that quiet stare before and knew better.

Brad even knew what the mistake was. As long as Pinsky had focused on the behavior of Poplin he was golden with the judge. However, Judge Isom did not like to hear the people of Bartlette County - his people - characterized as backward and telling the judge that his people were bigots would backfire every time. And that’s what the judge heard when Pinsky said the witness was appealing to the jurors’ anti-Jewish prejudices.

While Pinsky argued, Brad pulled out his phone and starting looking feverishly for the name of that skull cap Pinsky was wearing. Then he looked up some quick facts on Wikipedia. By the time the defense attorney finished his argument Brad was ready.

Brad pointed at Pinsky and told the judge that if the defense attorney truly believed that the people of Bartlette County were prejudiced against Jews then he would not have worn a large yamulke every single day of the trial. At the very least he would have moved to change the venue of the trial to the nearest location where the defense believed a jury could be seated that was enlightened enough to not care about the defense attorney’s faith. He pointed out that New York City had over eight million people and even the four members of the jury with only a high school diploma surely understood that not every single one of them was Jewish.  “After all, the first major Jewish population in the United States was in Charleston, not New York.”

The last comment got him a sharp look from the judge and Brad closed his argument pretty quickly. Judge Isom was far from an idiot and he knew that Brad was playing toward his proclivities. The last bit was a little too over the top.  Playing towards a judge’s proclivities was part of the game; having a judge feel like you were trying to manipulate him could turn into a disaster. Brad wrapped up by asking for a curative instruction.

Pinsky got up and argued some more, but he did not seem to realize he had lost the judge. Or maybe he did not care. In either case, he restated his same argument. The only new thing he said was that he could not have asked for a change of venue prior to trial because a change in venue could only be asked for because of bias against the defendant, not his attorney. He also made it real clear that the cap on his head was called a “kippah.” He said the name at least four times and even spelled it once. Brad was unsure what the difference between a yamulke and a kippah was, but whatever it was it was something Pinsky considered important.

In the end the judge told Pinsky that he did not believe the people of Bartlette would take the New York comment as a comment on the fact that he was Jewish. Nevertheless, he would give a corrective instruction.

The jury was brought back in and the judge waited until they were all seated before he addressed them.

“Ladies and gentleman of the jury, you are instructed to ignore the last answer given by the witness, Mark Poplin. It was not responsive to the question asked and was not proper behavior in the courtroom.  Furthermore, you are instructed that Mister Pinsky is from Fairfax, Virginia, not New York City, and that he is here because he is one of the few attorneys qualified for this type of case and he was asked to take this case by me.”

With that the judge released the jury for the weekend. Brad could have done without the judicial advertisement of Pinsky’s lawyering skills, but he figured he came out ahead. After all, the judge refused to declare a mistrial and the judge pointed out that Pinsky was from Fairfax. It was another thing that Pinsky seemed tone deaf about. People in Bartlette might have some theoretical distaste for New Yorkers, but they had a full on hate for Northern Virginianers and Fairfax was the most hated of them all. Pinsky would do better to worry about the fact the jurors now saw him as a Fairfaxer than that they knew he was Jewish.