There are three ways of looking at trials. For trial lawyers, familiar with the normal parameters of what goes on, the nuanced differences in how judges handle a trial are important. Some judges sit back and say almost nothing unless they have to. Others can’t keep their fingers off trial. There’s an old joke about the judge who can’t restrain himself from interrupting to ask questions of a witness: “Judge, if you’re going to try my case for me, would you at least do a better job of it?”
Oftentimes, these judges were trial lawyers, and either can’t stand being a bystander to trials, an incredibly boring proposition for someone who’s used to being in the center of the action, or are certain they can do a better job of it than the lawyers actually trying the case. For the latter judge, watching a lawyer fail to ask the question he would ask is too painful to suffer, so in he jumps. Whether he’s actually a better cross-examiner varies, but since he’s the judge, it’s not as if counsel can tell him, “With all due respect, judge, can you please shut up and let me try my case?”
Then there is the view of trials from the outside. There are reporters who know nothing of trials, and see everything as new and shiny. They impute meaning to things that are meaningless. They find grand issues where no issues exist. These are the reporters who fail to grasp that trials aren’t a baseball game, scored by the inning. They neither know nor respect rules of evidence, so see the rules as concealment, deprivation of information they find critical, even if a few hundred years of experience says otherwise.
These journalists report the most salacious details from the cheap seats, as these are the nuggets that are fascinating, occasionally outrageous, definitely what their editors expect of them. Are these nasty tidbits relevant? Material? Do they contribute to proof of an element of an offense? How would they know? They have no clue what the elements of the offense are.
They are also the journalists who are often annoyed by how courts fail to provide them with their basic needs, like cellphones in the courtroom to live twit the proceedings, or reserved seating according to the prestige of their news organization. or their need to rush out of the courtroom to report back some detail that will surely go viral.
If you have to run: If there is breaking news — for example, a prosecutor’s remark that the government’s star witness may or may not testify — you must run. (But not within sight of the judge, who does not tolerate disruption, or the courtroom deputies, who have no problem ordering the disobedient out.)
And then navigating the world of the dinosaurs.
Despite the helpful tutorial from our older colleagues on how to use a pay phone (which the courthouse does have!), the two phones don’t always work. Don’t waste time. Instead, take the elevator to the third floor, then hit the stairs and beat the elevator to street level.
The third group are the reporters who have spent their careers in courtrooms, know how trials work, how little the transitory outrages end up mattering at the end of the case, how trials consist of a million burps and farts, all of which are irrelevant and forgotten by summation. They know how their fellow rubes, the ones still suffering smartphone withdrawal and the humiliation of having to wait on line like ordinary people rather than the 24-year-old media celebrities they know themselves to be.
They are caught between their experience and the clueless enthusiasm of the children. If they come back without the moment’s latest scurrilous crumb, they will miss out on the outragefest. But they know it’s meaningless crap. They know that this is a trial, not just a show put on for their benefit so they have something to write about and fill the empty white space between advertisements. And things they might otherwise shrug off can’t be ignored, as it will be the bane of twitter in about 30 seconds, as long as it takes spry young reporters to bound down the stairs. So they compete, not because they don’t know any better, but because they don’t want this to be their last story.
In an op-ed for NBC “Think,” Ken White writes about Senior District Judge T.S. Ellis’ handling of the Manafort trial.
Judge T.S. Ellis, the senior federal judge presiding over the trial, has made it even more cinematic. Ellis is plain-spoken and forceful and doesn’t hesitate to criticize the prosecutors. The news has been filled with stories of his rebukes, including interrupting the prosecutors’ opening statements to remind them that Manafort’s being wealthy isn’t a crime, berating them for introducing exhibits too slowly, demanding that they move faster, narrowing the evidence they’re allowed to present and accusing a prosecutor of “tearing up” during a tense exchange. He even takes shots at the prosecution’s witnesses, as when he told Rick Gates that Manafort couldn’t have kept too close an eye on his money if Gates was able to steal some of it.
This certainly sounds significant, sounds as if it reflects Judge Ellis’ sending a message about which side he disfavors. Ken, former federal prosecutor, now trial lawyer, throws the wet blanket of experience atop this dumpster fire.
But his actions are not unusual, and they don’t point to a likely outcome: Judicial intemperance is common and, for better or worse, dealing with it is part of a litigator’s job. Trial lawyers know that judicial grumbling is not a reliable predictor of results. It’s often just sound and fury signifying nothing.
While true, I would walk it back a few more steps. Judges in America learned a critical lesson years ago from a judge in Ken’s neck of the woods, Lance Ito. When presiding over a show trial, one where the cameras are rolling and every sniffle makes a headline, keeping firm control over the actors who overplay their roles, pander to the audience with ostrich jackets of no direct relevance but certain to evoke fury, is the judge’s job. Show trials explode out of control in a flash, and then they’re almost impossible to manage.
Judge Ellis is keeping a lid on the players under his direction, as they test him to see just how much they can get away with. To call this “judicial intemperance” may be unfair, if not wrong. While it’s certainly correct to say that Judge Ellis’ handling reveals nothing about his view of the merits, it remains a trial no matter how hot the klieg lights get. This isn’t a show put on for the benefit of the public, but a trial in a court of law. Judge Ellis plans to keep it that way.
You can’t blame the lawyer for trying to push as far as they can. You can’t blame the judge for shutting them down. You can blame the reporters for telling you a story about it that reflects their ignorance of trial and misguided assumptions about what they’re seeing. Even the ones who know better and still make a big deal out of nothing.