One of the most underappreciated skills necessary at trial is the objection. There’s no “objection” class in law school, and as the test by fire of the Socratic method falls from favor, the emphasis is placed on a lawyer’s deeper, more deliberative process in lieu of the ability to jump up at just the right moment and forcefully state one of the most critical words in the lawyer lexicon: Objection.
An example of how critical this skill can be appeared before United States District Judge Kenneth Karas in the trial of Wayne Simoes, the Yonkers cop on trial for slam-dunking Irma Marquez. From the Completely Legal Blog at LoHud, the Journal News, and with one of the more interesting titles, Simoesus Interruptus,
And Judge Kenneth Karas said he was expecting an objection from the prosecution when defense lawyer Andrew Quinn asked video expert Grant Fredericks if he thought Simoes threw or dropped Marquez. Fredericks said he dropped her. Prior to the trial, Karas had ruled that Fredericks wouldn’t be allowed to offer his interpretation of that, just what was happening in each of the 199 frames from the video of the incident .
But the prosecution didn’t object when Quinn asked Fredericks that question. Karas said after the jury left the room today that he expected an objection from the prosecution team of Anna Skotko, Cynthia Dunne, and Benjamin Torrance. But none came. Quinn said he asked because he felt the prosecution had opened the door with its cross-examination of Fredericks. The judge didn’t think so.
They should have seen this coming a mile away. It was so painfully obvious, that there was no point to the defense putting an expert on the stand but for his opinion as to what the video of Simoes dropping Marquez showed. Of course, this is precisely what an expert cannot provide, the ultimate conclusion of the jury.
“I don’t know why you didn’t object,” the judge said to [AUSA ] Skotko.
“It came out of left field,” Skotko said.
The United States Attorneys Office for the Southern District of New York is well regarded. It’s supposed to be one of the best. This is not a bright spot. Let’s assume for the sake of argument that neither Skotko, nor the other two attorneys on her team, had any idea that the defense expert was there to tell the jury that the video showed the exact opposite of what their very own eyes saw when repeatedly watching the video of Simoes playing Hulk Hogan. To do otherwise would be to suggest that the government would sabotage its own case against a police officer, and that could never happen.
The ability to know when to make an objection isn’t a function of preparedness or foresight. The need often comes “from left field,” with either an unexpected line of questioning or a question formed in an unexpected manner. On top of that comes the tactical considerations, such as whether the objection will appear to the jury to be disingenuous, a means of keeping evidence from the jury that is relevant. Regular people believe that lawyers use such technicalities as the rules of evidence to prevent them from knowing the truth. While we know that these “technicalities” have reason behind them, to prevent the jury from hearing unreliable evidence that may taint their understanding, their perceptions may differ.
In a split second, we are called upon to make the decision whether to stand up and object, or sit quietly and let the questioning continue uninterrupted. This doesn’t fall in the “glib” abyss that makes lawprofs shun the Socratic Method, and yet demands a measure of speedy analytical decision-making that can produce a monumental shift in the direction of a trial. Fail to make a critical objection and the evidence comes in, full speed and deadly. There’s no second chance. There’s no “unringing” the bell. It’s in there.
I’ve addressed the tactical use of objections in the past, as well as the conflicts between presentation to a jury versus preservation for appeal. It’s far more art than science, and comes from trial experience combined with a viable sense of how the entirety of the trial is playing before the jury. These considerations, however, were absent from this glaring failure at the Simoes trial. There was no conceivable purpose to not objecting to a witness, an expert whose purpose was suspect from the outset, telling the jury what they see in a videotape. The jury has eyes; the rest is argument.
There is no explanation for the failure to object called “it came out of left field.” The targets of objections regularly come as a surprise. If they didn’t, we would dispose of them in limine. No need to wait until the jury is watching to have the car crash. AUSA Skotka’s explanation falls flat; worse than flat, it is fundamentally unlawyerly. What we do is object to things coming out of left field. If you can’t handle the surprise question, then you have no business sitting at counsel table at trial.
Of course, mistakes happen. No one is entitled to a perfect trial, mostly because there has never been a perfect trial. There are just too many variables, the significance of which is unknown until after the jury returns its verdict. If the verdict is favorable, you made the right decisions. If not, you didn’t, ignoring the fact that even the best trial performance cannot guarantee an outcome. It’s just the measure of sound judgment as viewed from the chair of appellate counsel or judge.
But the failure to object to the testimony of Simoes’ expert doesn’t fall into any tactical pigeonhole. Nor can it be shrugged off as a reasonable mistake. It was a demonstration of critical ineptitude, shocking incompetence. The failure to object was inexcusable.
If we take Skotka’s explanation at face value, that she was surprised by this obvious question, does it reflect an individual prosecutor’s inability to handle a trial? Does it reflect a fall from grace in the Southern District U.S. Attorney’s office? Does it reflect young lawyers coming to the courthouse without having learned the basic skills necessary to try a case?
And if we refuse to believe that any lawyer couldn’t figure out that this was one of those unbelievably glaring moments to stand up and, in a stentorian voice, proclaim “objection”, then what does it reflect?
Update: Via LoHud, apparently there was a pre-trial ruling precluding the defense expert from testifying that the video shows that Simoes did not throw Irma Marquez to the ground, and the government got a second bite at dealing with their screw up:
Yesterday, Judge Kenneth Karas instructed the jury to disregard defense expert Grant Fredericks’ conclusion about Simoes’ actions. Before the trial, Karas had ruled that Fredericks would not be allowed to offer such an opinion. Prosecutors asked the judge after testimony ended Friday to strike Fredericks’ statement from the record.
A special thanks to the Journal News for such a great reporting job. Nothing like getting the details straight the day after. Of course, it didn’t stop defense counsel from trying to push the envelope.
Andrew Quinn, Simoes’ lawyer, accused federal prosecutors of failing to properly investigate the case, building a prosecution solely on a video that wasn’t properly scrutinized by experts.
“We had to do what the government didn’t do in the first place,” he said.
Maybe tomorrow we’ll find out if there was an objection to this portion of the summation, after the judge struck the testimony.
H/T Reader George Cotz
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Your right. This seems inexcusable. Did he file a Motion in Lemine requiring the defense to approach before going into the subject in front of the jury?
Apparently not (and I believe Anna Skotka is a “she”), though given how obvious it should have been that the defense intended to get the expert to opine on the ultimate conclusion, it hardly seems a stretch for the prosecution to have raised the issue in advance of the expert taking the stand.
I think you offered a plausible justification in your own posting: the AUSA may have not wanted to appear to the jury to be keeping relevant evidence from their consideration. After all, the prosecution doesn’t really need to worry about preserving the record in this area, if the testimony has its desired effect, there is no appeal from acquittal. Moreover, I can see how letting that question be asked and answered really undermines the defense and anything else that this expert might have said. I don’t think anyone can watch that video and conclude honestly that the woman was dropped. I also think jurors would bristle at an expert “opining” about something they can just as eaily watch themselves.
Maybe, but two points suggest otherwise. First, that Judge Karas felt it significant enough to question afterward, and second, that Skotka gave a different answer. She didn’t say that it was a choice, but that it came as too much of a surprise to address. If a choice, we can question whether it was the right choice. But if a surprise, then it’s inexcusable.
You might find the trial of Conrad Black in the USA informative as to the subject of objections. [Ed. Note: link deleted as against my rules.] is also interesting IMO.