David Tarrell is a recent immigrant (from Omaha, wherever that is) to the practical blawgosphere with his blawg, In The Moment. He came onto my radar with tha post about a rather routine court appearance where the judge insisted on have a chat directly with his client.
It probably wouldn’t have done any harm if David had just kept his mouth shut and let the talk happen. The episode would have passed without incident, and no one would have thought twice about it. But David was the lawyer, and as the lawyer, stood in that wonderful spot in the well right between the judge and the defendant.
David politely sought to get the judge to direct her attention to him, rather than the defendant. The judge spoke to David like he was some gnat bothering her, to be swatted away so she could get on with whatever it was she wanted to do, unaffected by his existence. David was not so easily deterred.
Rather than demonstrate a modicum of respect for the role David played in the courtroom and the legal system as defense counsel, the judge immediately threatened him with contempt for his refusal to “be still.” David again had a choice to make. He could back off, and confirm the judge’s belief that he was inconsequential in his role as defense counsel. Or he could stand firm and do his job, at the risk of being held in contempt. David stood his ground.
It’s not that this incident reflects a picture perfect response to an overreaching judge, or an incident that one hopes to create through intransigence or disrespect. It was simply a brief snapshot of how a lawyer, without any reason to anticipate a confrontation, finds himself forced to make a decision as to whether he wants to fulfill his role in the scheme of the criminal justice system or play dead to appease a judge or just avoid confrontation at the expense of his client. This represents the sort of everyday decisions that defense lawyers are required to make, and David’s choice, as a young lawyer faced with potentially harsh consequences, showed the fortitude that reflects the finest of the criminal defense bar.
And so, David Tarrell is our Criminal Defense Lawyer of the Year 2007.
Here is a copy of the transcript from David’s confrontation:
(At 11:45 a.m., on January 26, 2006 in the Separate Juvenile Court for Douglas County, Nebraska, before the HONORABLE ELIZABETH G. CRNKOVICH, with Ms. Kristin Huber appearing on behalf of the State; with Mr. David Tarrell appearing on behalf of the minor child; and with the minor child Larry ****** being personally present with his mother, the following proceedings were had: )
THE COURT: What’s the matter, Larry?
LARRY ******: (nodded head)
Mrs. ******: She’s talking to you.
LARRY ******: I said nothing.
Mrs. *****: No you didn’t.
THE COURT: No, you didn’t. When I walked in, you’re very—it was – I don’t want to start anything, but I, I want you to know that, that you—you’ve got the judge you’ve have and—Mr. Tarrell, can I talk to your client for a moment?
MR. TARRELL: Well, I—
THE COURT: Can I talk to him, please, for a minute?
MR. TARRELL: Yeah, I’m – you know, I’m—
THE COURT: Thank you.
MR. TARRELL: Judge, you know—
THE COURT: Thank you, I’m just going to visit with him for a second.
MR. TARRELL: Judge, you know what—
THE COURT: You- Just a moment. Mr. Tarrell, if you do not be still, I’ll find you in contempt.
MR. TARRELL: You can find me in contempt.
THE COURT: All right.
MR. TARRELL: I think it’s important that I talk to my client, okay, Judge.
THE COURT: All right. Just a moment. Just a moment.
MR. TARRELL: If you want me to play a role here, then let me play that role.
THE COURT: I’d like a sheriff please, thank you.
MR. TARRELL: I think it’s important for me—
THE COURT: Just a moment. If you open your mouth, I will incarcerate you; do you understand?
MR. TARRELL: I think I should get a chance.
THE COURT: All right. I’m finding you in contempt of court because you have refused to follow the court’s order to be still. I need a sheriff.
(Deputy sheriffs entered the courtroom at this time)
[Note: When the sheriffs came in, they were responding to a “panic button” so three of them ran into the courtroom, the first one holding a taser. When they saw a calm situation, with everyone sitting in their seats, they looked surprised. So I stood up in my seat, and stuck my hands out behind me so they could cuff me. I was thinking at the time that the judge probably wanted me to beg to not be arrested, so I was “calling her bluff” by doing this. When I did this, she slammed her hand down on the bench and screamed the next line at me. The rest of the conversation is a battle over the record, as she’s trying to make it seem as if I’m not complying with her orders and I’m trying to show everything that is going on]
THE COURT: Sir, Mr. Tarrell, sit down, sit down in your seat now.
MR. TARRELL: Your honor–
THE COURT: Sit down and be still, sit down. I have three deputies here. I am ordering you this last time to sit in that chair. Are you refusing?
MR. TARRELL: Your honor, I need to make a record.
THE COURT: Are you refusing? Yes or no?
MR. TARRELL: I will sit down in the chair, but I need to make a record.
THE COURT: Thank you. We have a clear record here.
MR. TARRELL: I don’t think we do.
THE COURT: You are in contempt of this court. I am ordering the deputies to take you back at this moment.
MR. TARRELL: Your honor, what I want to put on the record is—
THE COURT: Deputies, now.
MR. TARRELL: I think I should—
THE COURT: Stop, we do not have a record. I have ordered him to be removed.
MR. TARRELL: It doesn’t have to be this way.
THE COURT: I know that sir, it didn’t have to be this way.
MR. TARRELL: I’d like to try to play the role that you want me to play.
THE COURT: Go, go.
MR. TARRELL: Okay. I’m not going to be intimidated by you. I’m trying to do my job, the job you asked me to do. Now, please put that on the record. It’s not fair.
(MR. TARRELL exited the courtroom at this time)
THE DEPUTY: Would you like me to stay ,or?
THE COURT: No, I’m not having any difficulty with anybody else. I was just going to have a conversation with the young man.
THE DEPUTY: Sure. If you needed me to stay. I was just asking.
THE COURT: No, that’s fine. Just hang on to Mr. Tarrell for a moment, please.
Young man, I’d like to explain where I was beginning, but under the circumstances, it would not be appropriate because your lawyer doesn’t need to be with you. Let me say that you remain in good hands in terms of your legal representation. I think there was just clearly something else going on , and the court has a responsibility to maintain its authority, so I’m going to take a recess. You may be excused.
(a brief recess was taken and all parties exited the courtroom.)
[Note: they took me into the back room, where they book prisoners into jail. The deputies all treated me very well and it seemed like they hated to be doing what she told them to do. I was wearing an antique watch and one deputy offered to keep it safe for me as they told me to take it off for processing into jail. I had my shoes, tie, and watch off when the judge called the sheriff’s phone and told them to bring me back into the courtroom]
(the proceedings reconvened with only Mr. Tarrell present in the courtroom.)
THE COURT: Mr. Tarrell, are you ready to listen for just a moment?
MR. TARRELL: Sure.
THE COURT: All right. No. 1, my experience with you has been that you are a fine and dedicated lawyer who more than adequately represents your clients in juvenile court, and that impression has not changed.
No. 2, it matters not your opinion of the court in a professional way because the fact remains that I am the judge in this court and when I issue a command, it is required to follow that command.
Now, what you did not know is what I observed when I walked in, and I made an effort to relate to and communicate with your client merely to set the stage so that we could proceed. I do understand, because I also observed this, you were attempting to communicate with him, and I have no doubt that you were trying to tell him, hey, shape up, so that he would not then get himself in trouble with the court. However, the court had a handle on it, and the court was addressing your client. Everything that transpired from that point when I asked you to cease was contemptuous of the court and, I must suggest, of this particular Judge, and I will not tolerate it.
Now, you stated truly that it didn’t have to lead to this, and I agree with you. But you have to reflect that not once but at least six times in the course of ten minutes you refused to follow a directive of this court, either to be still and/or to sit down. I did not escalate this.
I do not wish to find you in contempt. I do not wish to incarcerate you. I do not wish to have this kind of exaggerated incident happen again . It doesn’t serve you, it doesn’t serve the bench, and it doesn’t serve the kids and the families.
Now, I took a recess. This may not be the time to address the two boys and their family. I am happy to continue it until after lunch when calm and reason can prevail or to another day. I will give you an opportunity to talk to your clients. I will allow you to leave freely and without the deputy. You may be excused.
(12: 06 p.m. adjournment accordingly)