I had been in the
courtroom for less than thirty minutes when the defense
attorney created a scene.
First, Judge Peter Broderick excused
the prospective jurors for ten minutes. Then, he sent them
to lunch. While the jurors were out of the courtroom, the
(White) defense attorney made a Batson objection
on behalf of his (White) client.
questioned 3 Prosecution challenges under Batson.
The judge was clearly nonplussed. "Why?"
are attempting to eliminate Italian-Americans because
they share my ethnicity" the attorney responded.
(But that isn't covered under Batson. Batson is about
eliminating Black jurors on the basis of race.)Lundquist argued
that one man had a bad attitude and was vacillating
and that the other clearly identified with the defendant
-- as a single man living at home.
The African-American woman was excused because she
exhibited memory problems -- she couldn't remember
if her brother works as a trooper or in the Niagara
County Sheriff's Department. Also, she has severe arthritis
and her medication dulls her thinking.
Also, it's not an ethnic-based excuse, because they
didn't challenge the African American man on the panel.
Judge Broderick said one of the Italian American's
answers to questions were so ridiculous he would have
excused him for cause if the prosecution hadn't used
a peremptory challenge. (Trial Notes, p. 1)
I am not a lawyer. Even after attending many
trials, it was hard for me to see what was happening in front
of me. In fact, it has taken years of talking to lawyers and
thinking and reading and thinking and interviewing and thinking
to begin to get beneath the overt events to the tug of war
within the trial.
All trials can be seen as a series of power
conflicts. Knowing that, I missed the significance of the power
struggles in this trial.
Here the defense attorney completely misrepresented
and misapplied a basic US Supreme Court decision: Batson v.
Kentucky. In the courtroom, the DA missed the point when he
responded with specific reasons why his particular objections
were valid. He might have been better off getting to the core
point, which is that the defense attorney is mis-representing
both the letter and the spirit of the Batson decision. He is,
in fact, trivializing a significant protection for minority
defendants. The argument itself is an insult to this court.
Now-- do you actually want to know why we excused those three
Likewise, the judge, rather than chuckling
at the defense attorney's audacity, could have reinforced the
integrity of the legal process by saying something along the
lines of: I am not persuaded that you are as ignorant of the
Batson case as you are suggesting. Do not waste my time by
mis-representing court cases in this courtroom. If you wish
to cite a case, give me a copy of the case in advance. If you
mis-represent the thrust of another case in this manner, I
will consider it a deliberate attempt to mislead the court,
and I will act accordingly.
Courts in New York State, including the state's
highest court, the Court of Appeals, have taken a hard line
when lawyers slide cases into their arguments and mis-represent
the holdings of the case. In one New York Court of Appeals
decision, Justice Henry Clay Greenberg wrote of famed attorney
Louis Nizer (in 1964):
Unfortunately, counsel for the defendant
[Nizer] quoted extensively from . . . [a case that] was cited
as the authority which required plaintiff herein to prove
every possible and conceivable fact imaginable before a court
of law will declare a marriage null and void. The court was
astounded to find that that case upon which so much reliance
was placed by defendant's counsel was reversed by the Appellate
Division [cites omitted] on the point in question, and this
reversal was affirmed by the Court of Appeals [cites omitted].
In fact, the Appellate Division in commenting upon the [theory
of this case] adopted the words of Justice Cardozo to the
effect that this theory of such presumption is a presumption "gone
mad." ( Rosenstiel v. Rosenstiel,
251 N.Y.S. 2d 565, 579.)
Why is this so important? Because trial testimony
had yet to begin and this was a test on two levels: 1) to the
prosecution: Can you stand up to me? Can you think on your
feet?, and 2) to the judge: who's going to call the shots in
The defense attorney got a promising answer
here -- a little after noon on the second day of jury selection.
By 4:30 that afternoon, he had further confirmation of who
controlled the courtroom when he smiled at the prospective
jurors and asked, "Anyone frustrated with the length of
jury selection?" and the judge said, "I am." (Trial
Notes, p. 4) Another judge responded differently to the defense
It's not a matter of objecting to humor in
a difficult legal proceeding. Rather, the issue is: How is
humor being utilized? Here it was utilized to undermine the
good order of the court.