Anyone married for more than a few years has an intuitive grasp of the cognitive process known as framing: Once someone has decided to view you in a certain light, the facts just get in the way. Come home late to an angry spouse, and there is little you can say in your own defense, even if it is the truth. It is not that your spouse is being unfair, it is that the assumptions are powerful, they can cast a light on events, determining what is seen, and what is ignored.
I was framed the other day in trial by a judge. The result shocked me. It has me rethinking whether we ought to have cameras in the courtroom, the lens focused on the presiding judge.
Judges have tremendous discretion in a courtroom to assure a fair and orderly trial. This requires them to rule on objections made by lawyers in an instant. Lawyers like to call the scope of what is and is not admissible in a given case the “strike zone,” borrowing a baseball term — like umpires, judges can broaden or expand what is and is not a strike, or, in the case of trial, what evidence is admissible. Although the rules are written in a one size fits all manner, they are applied in idiosyncratic ways. The law recognizes this; hence, on appeal, reviewing courts are deferential to a trial judge’s use, or abuse, of his or her discretion.
“Objection,” the prosecutor said after a question I posed to a witness.
“Sustained,” the judge said. Not knowing what the legal basis for the objection was, I rephrased the question, thus drawing another objection, which was sustained. Again, despite the rules requiring a party to state a legal basis for an objection, I was blind-sided. Being stubborn, I tried again. Again an objection sustained, and the judge now stepped in to tell the jury to ignore the questions, rapping me on the knuckles along the way in the jury’s presence, an unusually aggressive move — customarily, a lawyer is warned outside the jury’s presence before the court takes him to the public woodshed.
It rankled me that the prosecution could break the rules about how to offer objections, and I was the one to get spanked. So the next day, I made a motion requiring the prosecution to state the legal basis for objections, and to ask that argument about objections take place at sidebar. Motion granted, although you would have thought I had asked for some special favor.
Later that day, the prosecution again objected mid-question. I stopped talking, waiting to hear the legal basis. Instead what I heard was the woodshed door opening.
The judge announced his intention to admonish me in the jury’s presence, saying: “That is exactly what we covered this morning at your request, that that would not take place.” I had no idea what the judge was talking about.
“May I approach?” I asked, to plead my case.
“No, you may not at this point,” the judge said.
I stood my ground. “I’m requesting permission to approach for legal argument because I would like to take up a matter of concern, judge.” The strike zone was expanding before my eyes, threatening to swallow me, and my client, in the jury’s presence.
“Yes. I will allow you to do that as soon as I –” the judge was getting ready to call a strike.
“I’d like to do it now, please.”
“I would –” the judge was itching to call that strike.
“I’m concerned about the Court’s exercising its discretion and I’m requesting it,” the transcript reflects. I could have sworn I said the “court’s exercise of its discretion,” as in abuse.
The judge relented, reminding the jurors that lawyers’ questions aren’t evidence before sending them out.
While the jury was out the judge accused me of continuing to speak after the objection was raised. He then accused me of speaking “in a tone that was perhaps louder than any questions you’ve asked thus far continue to advocate that position that you did.”
He wasn’t done.
“And it seems to me, Mr. Pattis, that that could have been done for one purpose and one purpose only which would be to allow the jurors to hear comments that should not have been heard by them.”
I told the judge that I did not recall it that way.
The judge went on to make an elaborate and lengthy record of how I kept speaking after the objection, making “improper comments not to the Court but to the jury.”
There comes a point in the lives of us all where we question our own competency. The judge was reciting as “facts” things I did not recall at all. I continued to press my claim with the court, and was then accused of going through a “Dr. Jekyll and Mr. Hyde change,” of being disingenuous. It was as ugly a moment as any I’ve had in a courtroom. If the judge was right, I was a candidate for Alzheimer’s. I thought I had good reason to be vexed as I was accused of something that was, simply, untrue.
The judge had made up his mind. He wanted the jury back. Before they returned, I wanted a ruling on the long-forgotten objection. Of course, none of us could recall it now, so we asked for the court reporter to replay it — everything in the courtroom was recorded.
When the question was replayed, it was exactly as I had recalled it. I had stopped speaking after the prosecutor raised his objection.
The judge looked stunned. I asked the judge to give a curative instruction to the jury, telling them he was wrong to slap at me and suggest I had violated the very rule I requested.
“I should have been more circumspect in my comments because the order that things were happening at the time may have caused the events that they did rather than anything Mr. Pattis did in the way he was questioning. ... My apologies for the comment I made,” he said to the jury. I was permitted to resume my cross-examination of the witness.
The exchange with the judge troubles me still. Silent cues are powerful in a courtroom. If the judge could have gotten this wrong, what else did he convey with facial expressions, body language and tone? I’ll never know, as I was too busy with the case to focus on him, although my client’s family continued to raise concerns about fairness throughout the trial.
So I am wondering now, having been accused of things I did not do in open court, do we need cameras in the courtroom after all, at least one of them focused on the umpire? How else to get a review of the manner in which balls and strikes are called?