What's Wrong with this Picture?

May 2, 2000

Jury Selection

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.


Parrinello questioned 3 Prosecution challenges under Batson. The judge was clearly nonplussed. "Why?"

"The prosecutors 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)

What's wrong with this picture?

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 jurors?

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 courtroom?

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 attorney's aggression.

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.