To begin, let me quote some of my dissemblage from the close of last year:
I guarantee FLOG will be more interesting in the new year. Really. Promise. I got me an internship with a judge, for which I am required to keep a diary. I'm thinking of just compiling the diary here for your "entertainment" and because it's an easy way to generate content.Boy, was I full of shit. But I am determined to not let this blog die. In that spirit, here are three court journals, back to back, for your boredom / edification. Names have been changed to protect the innocent, the guilty, the indifferent, and the impartial.
Journal #1
On Friday I witnessed the last two hours of a nine-hour, two-day trial on cross motions for contempt of court arising out of a child custody agreement. It was the latest move in litigation that has consumed one and a half years, which Judge Barbrady noted has taken up half of the child’s young life. “I’ve got a file here on the bench that is two inches thick, and I see you both have a stack of paper nearly a foot high,� he told the parties, “and I think you are both being ridiculous. This whole thing is ridiculous.�
I didn’t disagree with him. The litigation has dragged on so long that the respondent, a waiter/standup comedian, can no longer afford an attorney and has been proceeding pro se for several months. It is a difficult undertaking to watch. I’ve always heard that going to court without an attorney is highly unadvisable, but I’ve never seen it in action. It cripples him in so many ways, throughout the trial process.
First, filing his counter-claim for contempt. Although the contempt motion against him was based on specific and well-demonstrated violations of the custody agreement, and succeeded at the end of the day, his motion was legally fallacious and failed. He claimed that the petitioner had “harrassed� him by coming to his house to ascertain the child’s wherabouts while he had custody. Although her contact may have seemed rude, invasive and inappropriate, it did not meet the elements of legal harrassment. An attorney would not have filed the motion, which would have at least saved the respondent court fees. Judge Barbrady was duly nonplussed by it, saying “it may have felt like harrassment to you, but I have to look at whether it meets a legal standard, and it doesn’t.� The distinction between lay definitions of transgressions like “harrassment� and the definitions that will succeed in court seems a grave pitfall for persons proceeding pro se.
Second, the need for organization and clear argument. Whatever the respondent’s skills as a comedian, he was basically adrift in court. During a brief recess, I spoke with Judge Barbrady about how devastating this can be to even the best case. “I don’t really know anything about the case,� said Barbrady, “So it’s up to the parties to explain it to me. So if you are fumbling and mixing up exhibits, and referring to unspecified evidence in your argument, I can’t consider your side of the case as well as it deserves.�
Finally, the respondent simply wasted a lot of time and scored very few points on a cross examination of the petitioner. 15 minutes of testimony established the fact that the phrase “make up time� did not actually appear in the custody agreement, though it had come into common usage among the parties in referring to matters spelled out in the agreement. The respondent considered this a key rhetorical point, but it was of no legal significance. Both Judge Barbrady and his clerk, Jiminy Cricket, told me that most of the 7 hours of trial on Thursday had been taken up establishing other such trivial points.
As I said, mounting a case pro se was a difficult thing to watch, and ultimately depressing. The worst part is that the respondent probably had valid points, but he had no idea how to get them across. And the petitioner’s attorney walked all over him, even offering as closing rebuttal this zinger: “For a while I thought I was watching a stand up act.� For better or worse, you need an attorney if you’re going to court.
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Journal #2
I’ve found the legal process for obtaining temporary restraining and stalking orders, and making them permanent, to be kind of troubling. It’s troubling because it presents a situation where the constitutional right to due process of law seems to flatly contradict common sense. The result has led me to think about victims’ rights more than I have when considering criminal procedure in the past. (Even though these orders are actually civil law orders, the situations the victims find themselves in seem more in line with criminal law.)
What the hell am I getting at? Well, the procedure is basically as follows: an individual who feels his or her safety is at risk files for an order, and comes to give testimony sufficient to convince the judge to issue a temporary order. After some weeks elapse, a hearing is scheduled to determine whether to make the order permanent. At that hearing, both the victim and the person to be restrained are allowed to testify, call witnesses, and cross-examine. This is where the right to due process comes into play – the restrained individual has a right to confront the accuser and a right to a fair hearing before a permanent legal order is imposed against him or her.
But this procedure is a unique moment in the entire realm of restraining and stalking orders, as it requires the victim and the aggressor to sit down at the counsel table no more than five or six feet apart, and confront each other. When I have escorted petitioners in and out of court during the initial hearing, they’ve shown a lot of very understandable apprehension at the idea that next time they come to court, the respondent will be in the same room. One man asked if he had to be there, and I told him yes, unfortunately, if you aren’t there the order is dismissed. He thanked me for letting him know that, but he was palpably afraid of the prospect.
A few days later I saw why, at a hearing to make a stalking order permanent. The petitioner was the step-daughter of the respondent, who was undergoing a divorce from the father. She seemed genuinelyout of her mind on drugs - - she would have fit right in on Wednesdays, when Judge Barbrady handles drug diversion court -- and was quite nasty to the petitioner. “Did you ever support my marriage to your father?� she asked on cross. The step-daughter scored a hell of a zinger on that question, though: “No, not after you asked me to give you my pee so you could pass that drug test, I didn’t.� Nevertheless, the step-daughter was shaky and generally shrinking in the presence of her aggressor. After Judge Barbrady declared the stalking order permanent, court recessed while we dug up the right form. I stayed in the courtroom with the petitioner and the respondent. The step-mother began directing very cutting, abusive comments at the step-daughter: “Well, your mother’s real proud now,� etc. (Her birth mother is deceased.) The step-daughter broke down in tears, and asked to leave the courtroom. It was heartbreaking. Such can be the price of due process.
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Journal #3
This Wednesday we nearly had a four to five day criminal trial – the guy who ran over half a dozen people on his way out of the Tidal Wave parking lot last August. He was determined to go to trial, but the better judgment of everyone else prevailed and he took a plea deal, sparing himself potential decades of Measure 11 mandatory minimums.
A shame; I was looking forward to that trial. But the case, involving an entire parking lot’s worth of witnesses, some 200, did at least jar loose a couple of entertaining and enlightening stories from Judge Barbrady’s days as a prosecutor. I have read a lot in the past about just how inaccurate eyewitness testimony can be, about how persons convicted on the strength of multiple eyewitnesses have been exonerated years later by incontrovertible DNA evidence, and so forth. Two of Judge Barbrady’s cases really spelled the danger out, however.
The first case was a shooting incident that took place square in the center of 13th Avenue, on the UO campus, outside Oregon Hall. It was the first week of school, the street packed with students walking to and fro. A motorist was attempting to drive his car up 13th when a pedestrian crossed the street a tad too close or too confrontationally, as UO pedestrians are known to do. The motorist reacted by pulling a 9mm and dumping the clip at the pedestrian. As the pedestrian fled, the motorist fired after him into a thick crowd of people. Miraculously, the only shot that struck anyone hit the fleeing pedestrian in the knee. Even more miraculously, the pedestrian’s knee had no lasting damage.
Subsequently, the motorist was identified in a lineup by the pedestrian and confessed to the shooting. Yet, when it came to the witness pool, comprising hundreds of people, the variety of witness accounts was staggering. “It really ran the gamut,� said Judge Barbrady. “The shooter was white and black, fat and skinny, tall and short, driving any number of makes, models, and colors of automobiles, and firing in any number of directions at a victim of all shapes, sizes and colors. Quite simply, we {the state} called the witnesses whose descriptions matched what actually happened, and the defense called whoever could most convincingly cast doubt on it.� Hard to know if even the shooter and the victim could say what really happened.
The second case was an armed robbery and murder at Jon’s Market. The victim was a law student. 10 or 15 witnesses saw the suspect run from Tom’s to an apartment about two blocks down 19th, where he was eventually found after a several-block manhunt. Once again, witness descriptions of the suspect varied widely, and both sides called the witnesses most useful for their respective cases. However, one defense witness apparently sealed the case for the prosecution. “He was this old alcoholic,� said Barbrady. “When they called him, he wasted a lot of time struggling with the locked side of the courtroom door before staggering in to take the stand.�
The defense began their examination by asking the witness if the man he saw run out of Jon’s was in the courtroom. After a long, slow look around, he answered “Yes.�
“And can you please point him out to the jury?�
“Sure.� After another slow, boozy look around, the witness pointed a shaky finger at the 12th juror in the jury box. “That’s him.�
This is why I was looking forward to the Tidal Wave trial.
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There. More to come, promise.