I just finished two trials and am headed toward a third, next month. I am also working on this racketeering case in which my client is alleged to have engaged in racketeering activity as part of his membership in a local gang. With motions filing deadline approaching, I spent some time looking at recent cases in the area and this one, US v. Scott, seems spot on, but not so much for the motions issue, rather as judicial involvement in the trial. It is interesting because it illustrates just how much control a federal district judge may exercise over a trial and NOT violate a Defendant’s right to a fair trial. First – my disclaimer – I have never seen any judicial conduct that comes close to this stuff, nor would I expect to. The case is interesting for us as lawyers because it reminds us that there is a long, long journey from what we think is unfair conduct by the judge at trial to a reversal of the case. So read the case – and consider the following from Scott: 

The judge did not allow the jurors to take notes. No problem says the 9th Circuit. A judge has a lot of discretion with respect to the question of whether jurors can take notes. 

The judge made disparaging comments about the defense lawyer.  No problem says the 9th Circuit, even though it concedes that some of the comments went too far and may have been inconsistent with the standards of judicial decorum. Still, the court says that there was no real prejudice to the defense in view of the evidence. Let me translate: the evidence showed that the defendant was really guilty so no harm, no foul.

The judge gave the defense lawyer nine minutes to review and then object to the proposed instructions. Again, no problem. The proof that there was no prejudice to the defendant was the closing argument itself, which apparently went well. 

The judge did not give a mutual combat or self-defense instruction. No problem here either as the evidence did not raise the issue. Could be – but the only defense available to the defendant (who was charged with stabbing another inmate) was self-defense or mutual combat, so the failure to get enough evidence before the judge and jury really rests with the lawyer. 

The judge apparently asked a lot of questions of the witnesses. No problem here either says the 9th Circuit. Judges have an inherent power to supervise the evidence and even draw attention to important evidence. Still, this almost never happens in courts here.

I was thinking about what this really means in the context of our cases in state and federal court in Idaho.  First, it is a good reminder that we need to be fully prepared to tell our story to the jury with sufficient evidence to raise whatever claim or defense we are asserting. If our defense is self-defense, we need to get the evidence in so that the judge cannot refuse the instruction. Second, we need to be fully prepared to present our case in a way that highlights the evidence so it is remembered. With each witness there must be one key point we want to present. That point must be so memorable that even without notes, the jurors will recall the point. And finally, we are really a lot better off than we sometimes imagine when it comes to the judges we encounter. I can’t even imagine a judge in Ada County or the US District Court refusing to permit notes or trying to take over the case from counsel. 

Want to help your case and your client? A friend of mine says the nicest lawyer in the courtroom usually wins. I think he is right. I’m willing to have the fight with the judge if needed, but it us usually better to not need the fight. 

OK – back to preparation mode. And the same for you and your case.