A few days ago, David Tarrell asked me to take a look at a transcript on his blog, In the Moment.  It was one of those transcripts that embodies the conundrum that all criminal defense lawyers are faced with eventually.  A judge just wanted the lawyer go away for a few minutes so that the judge could talk with the client, on the record, by herself. 

To some, this wouldn’t seem like such a big deal.  In fact, some people would admire the judge for having a judge/defendant chat.  Maybe she’s a caring judge.  Maybe she just wants to bond with the defendant.  Maybe.

But maybe a guy like David Tarrell is still a lawyer.  And maybe on of the things a judge can’t do is push the lawyer aside to do whatever she pleases.  Maybe they each have a specified role in the courtroom, and judges don’t get to tell the lawyer to just go away for a few minutes so the judge can do as she pleases.

Faced with a judge directing him to do what he, lawyer Tarrell, knows he should not, he had to make a choice.  Do I just back away and let it happen?  It probably won’t do any harm.  It’s not like the judge is going to direct the defendant to admit guilt.  But…

I know a very well known lawyer who has told me he’d never take a bullet for a client.  After all, they wouldn’t take one for him.  He’s a great lawyer.  But he would much rather make peace than face the can.  He would bend.

David Tarrell didn’t have a lot of time to ponder the situation.  The judge was blustery, demanding that he “be still.”  He tried to talk her off the edge, but every time he opened his mouth, the judge became increasingly infuriated with him.  Thankfully, she had no taser.  He wanted to make a record, but she refused to let him.  He never directly challenged her, but sought only to say what any good attorney would say under the circumstances.

The judge, like so many who are drunk with power in their courtroom, fell into that deep hole of judicial hubris.  She threatened contempt.  David stood firm, “You can find me in contempt.”  And so she did.

Once the judge threatened, the die was cast.  It was a standoff, and neither could back off.  It’s why we’re taught never to threaten to drop the bomb unless we mean to do it.  Once threatened, it has to be used if our bluff is called.

In law school, we were taught that the rule was to obey the orders of the court and appeal later.  That works under most circumstances, but not all.  It wouldn’t have worked for David.  There was no “appeal later” option available.  It was lay on the floor, prostrate, and let the judge walk all over you, or not.  Either he was a lawyer, and kept his oath to represent his client, or he was a gutless worm with a briefcase.  David chose to be a lawyer.

After. the judge did what most judges do.  Try to talk their way out of their employed threat, knowing full well that holding a lawyer in contempt has significant consequences if it comes as a result of overreaching and abuse of power. But still, the judge can’t exactly say she screwed up, and apologize.  That would be injudicious.  They want to let the lawyer go so the whole ugly incident can be swept under the carpet and forgotten, but they need to save face.  They need the lawyer to make an act of contrition, any act of contrition, so that they can be the beneficent judge and forgive their sins. 

This is such an old sad story, and even sadder that it happens over and over.  David Tarrell behaved in the finest tradition of the criminal defense lawyer.  He stood up for his client against an overreaching judge, prepared to suffer the personal sacrifice of contempt and jail to do the right thing.  Well done.