(2012) The Court's Expert

by Richard Isham

  Simultaneously, all attorneys were on their feet clamoring for attention and promising to make “just a few brief remarks for the benefit of court and counsel.” It reminded the judge of a fourth-grade class where every student wanted to give the answer at precisely the same time.

  Shades of a presidential news conference, she thought, and raised her right hand to invite silence without uttering a verbal command from the bench.

  “Very well, I will hear arguments for a maximum of eight minutes per speaker, starting with Mr. Corrigan and moving down the line from there.” Everyone in the courtroom knew lawyers were incompetent timekeepers, so a speaking time limit was meaningless unless the judge vigorously enforced it during arguments. It was clear that this hearing would consume the two hours remaining before noon, possibly more.

  Rosemary Clinton, the judge’s clerk, was immediately on her telephone whispering instructions to an aide to pass word that she would join a planned courthouse party during the lunch hour as soon as she could. Judge Crouch believed in regular meal schedules following an episode in another case involving one of her jurors who had nearly lost consciousness due to his diabetic condition when the judge had tried to skip the usual lunch break to finish up by one o’clock. Rosemary was confident she’d be on time for the party, or very close to it,.

  Harry Corrigan remained on his feet, methodically ruffling his notes as though seeing them for the first time. Could it be possible that his law clerk had omitted the summary sheet? His furrowed brow telegraphed mounting stress. Corrigan represented a client who had political clout and was personally responsible for inciting the homicide investigation through the sheriff’s and district attorney’s offices that led to the prosecution of Marti Barnes. He was in a major case for a powerful client.

  “As the court knows, and for the record, I am Harry Corrigan, counsel for William Martorano and his deceased father’s estate. I appreciate the court’s generosity, as does my client, in granting me time to speak to this very important issue. I apologize in advance if I trespass against the time barrier, but beg the court’s indulgence if that happens.”

  It wasn’t so much the words at the beginning of such remarks, as the tone and deference shown to the court by counsel that were offered by the advocates in hopes of endearing themselves on behalf of their respective clients. Still there was a fine line to tread before annoying a judge who could react negatively to overdone obsequiousness. Just what the result might be if an attorney trespassed seriously was impossible to predict. Judge Crouch was respected as a thoughtful judge with a fine legal mind who afforded reasonable latitude to attorneys, hoping perhaps that something useful could always surface if she simply resisted a judge’s natural temptation to take over the case somewhere during the proceedings. The lawyers in court today knew that such attitudes were not shared by all the judges. In this case, the trial attorneys considered themselves fortunate to have an even-handed judge assigned to their matter.

  Corrigan started with his first legal point on page one of his twenty-three page brief, but as soon as Judge Crouch recognized his approach she interrupted him: “Counsel, it won’t be necessary to repeat the contents of your written argument now. The court is well aware of your client’s position. Please proceed to the core of your argument.”

  “Very well, Your Honor. I was hoping to provide orientation for my remarks.”

  “The court deems itself well oriented already, thank you. Please proceed.”

  “Yes. As I was saying, Your Honor, we have already seen declaration testimony from two experienced experts dealing with the cause of death in this case.” Corrigan advisedly did not use the adjective “qualified” in this sentence, thereby reserving his option to attack any expert’s qualifications, except those of his own, naturally, during argument.

  “As the court is well aware, if a jury determines that my client’s father died by criminal means and one of the contestants is responsible, that contestant’s claimed share of the estate is forfeited. Since every contestant claims a significant share in the millions of dollars involved here, there is good reason to believe or at least prudently suspect that foul play could be involved.

  “Now, through the process of direct and cross examination of the experts, we are fundamentally committed to a system that filters truth from fiction by putting the experts through the crucible on the witness stand in open court before judge and jury. That is to say, juries are called upon daily to make the fine distinctions necessary to reach a verdict and forensic experts are trained to make their presentations understandable to lay persons. And as Your Honor knows by demonstrating the very point in the court’s motion to appoint another expert, the trial judge must be alert to keep the presentation at a high scientific level to avoid the support of any forces attempting to mislead the jury on fundamental principles of physics, chemistry, medicine, and so forth. Everyone must work to keep any expert from straying into areas of junk science or engaging in hyperbolic projections.”

  Man, that was good! Corrigan complimented himself privately and continued.

  “Thus far, the court has reviewed declarations of at least two experts whose testimony can be expected at trial. Two experts have presented their unique opinions thus far. The jury is sworn and committed to reach a fair decision consistent with the evidence in this case. My client is concerned that bringing in another expert at this point will not, with all due respect, serve the interests of justice, but will only increase the time and cost of the proceeding. For example, Dr. C. Brock Smythe, who has filed his declaration at the request of my client, would be required to spend even greater amounts of time analyzing the testimony of any expert who might be appointed by the court and then further prepare himself to accept or refute any new points that may be at variance with his proffered opinion.”

  “Thank you, counsel,” Judge Crouch interrupted again, “and I think we’ve hit on a major point. Do you really think the additional expense you speak of is significant in this case of a hundred-million-dollar estate? Or for that matter, do you think the parties are unable to deal with the additional time concerns. After all, issues of capital murder are involved here.”

  “May I?” fawned Corrigan as he redirected his thoughts. The judge had just sent a clear signal suggesting that she, not unexpectedly, favored the appointment of another expert, yet she did not express herself directly. Corrigan did not want to deal with the delays associated with adding another expert into the mix, taking more depositions, and continuing the trial for at least three and maybe six months to accommodate all of the schedules involved. He had a heavy caseload with another blockbuster trial set to start in three weeks and on it went without letup. Corrigan believed his experts had already done extremely well, and that as a result, he held the dominant position at this stage.

  Shit! What would happen to the scheduling of the trial and the myriad details that would be disrupted if there were a significant delay in the proceedings? Corrigan thought to himself. Yet, it was clear the judge was headed in that direction.

  “Of course,” she allowed, and Corrigan continued with his presentation.

  “I confess, Your Honor, that my trial calendar is already stressed. I can’t speak for others in this case, but rearranging calendar commitments would be a nightmare. Vivian, my assistant, would likely kill me, then quit, when she learns she has to reschedule everything for weeks on end. And please don’t forget that employing another expert at this time will result in delays of several months before we can bring this case to jury trial.”

  Judge Crouch responded: “The court is mindful of your concerns yet is troubled that if an expert is not appointed by the court, the whole truth may be obscured and ultimately lost. As I understand the positions of the retained forensic pathologists and apparently the parties they work for, if you’ll forgive me for speaking candidly, the focus of their respective opinions is the disqualification of one or more heirs because of alleged criminal means used to hasten the death of the elderly decedent
in this case. The trouble is that more than one suspect may be emerging from the forensic testimony presented thus far. The will contestant, Ms. Barnes, did not have exclusive control of the person of the decedent or of his medication, if I read the material correctly. Believe me, the court is not making light of the matter. Yet we have evidence that could implicate two or more persons but no suggestion of joint or conspiratorial activities of anyone. Are you contending that a conspiracy to commit homicide might be a reality in this case? And I suppose it’s possible that two similarly motivated persons, plotting independently, could produce such a result, although I cannot at the moment remember which piece of Shakespearean or Russian literature this plotline might have emanated from. Don’t you think such a verdict could be viewed as inconsistent and might lead to an appeal if the jurors held fast even after the court sent them back to deliberate further?

  “Equally perplexing,” the judge continued, “is the prospect of an apparently indigent defendant who is forced to enter this perilous contest but lacks the resources to retain forensic expertise to present her position in the case. Obviously, I’m speaking of claimant Barnes. Doesn’t the court, in the interests of justice, when the problem is identified and recognized for what it truly is, have a duty to level the playing field sufficiently to afford all parties a fair opportunity to present their respective cases? And what of the court’s angst over personally lacking the scientific training to ferret out so-called scientific but inadmissible evidence whenever an appropriate objection is made?

  “My apologies, counsel, but my bailiff is beckoning. Oh, an emergency telephone call from the court of appeal? Very well! The court is in recess for fifteen minutes,” and Judge Crouch departed trailing her flowing robe and coiffure.

  This brief comment was the judge’s pre-arranged signal developed much earlier with court personnel. Whenever she felt she needed a break, she uttered this verbal signal with the clerk and bailiff adjusting perfectly, seamlessly. She would gain some much-needed solitude in chambers from the pressure inside the courtroom, palpable at the moment, broken for the time being while the judge made every effort to reclaim a healthy pulse rate. The participants inside her courtroom could also self-correct and gather their thoughts during this interlude. A little time for reflection benefited all concerned.

  Once alone in chambers, the judge dealt with a returning ghost that had haunted her increasingly in recent months. She had thoroughly enjoyed her halcyon days as a trial lawyer. Since becoming a judge, however, she realized that she must reinvent herself to adjust to her daunting new role with refocused responsibilities. No longer was she the confident advocate responsible for presentation of contentions designed to favor her clients’ positions. That was a freedom she forfeited when she took the position on the bench. As interesting and successful as many of her arguments had been over the years as an attorney, she always enjoyed the challenges of moving on to new and different cases. As a judge, she soon learned that one certainly had to move right along to the next case, yet she could no longer breezily change gears without building a legacy of past decisions. She was no longer an advocate for a cause shaped only by a client’s needs. Now she served the community’s justice needs in a very different position. She was now a protector of the system, responsible for even-handed administration and the single person everyone looked to for assistance in achieving justice in the cases she presided over. There was no hope of pleasing everyone, even though each party expected vindication of their causes.

  After completing some simple stretching exercises in chambers, Judge Crouch reclaimed her seat on the bench ten minutes after calling the recess, and court was back in session. Emitting a deep sigh and looking stoically at counsel table but seeing no one in particular, she relished a brief moment of uneasy satisfaction.

  “Mr. Corrigan, I think you were preparing to offer some remarks before the break.”

  “Certainly, and Your Honor raises an interesting point. However, since you do have control of the proceedings, if a verdict you deemed inconsistent were to be rendered, you do have the power to send the jurors back for further deliberation to resolve the inconsistency, just as you said. And, as long as we are discussing possibilities here, a verdict disqualifying two heirs or otherwise suggesting multiple actors responsible for the homicidal acts would not necessarily be inconsistent or irreconcilable. The theory of concurrent causation is certainly plausible under these facts, although unusual I will say.”

  Although Corrigan could tantalize his imagination with images of two persons bent on murdering Martorano, working independently, and each without knowledge of the other, he was beginning to wilt significantly from the strain of this court hearing. He was afraid it might even be showing and sighed audibly, feeling a little dizzy. Nonetheless, he sensed the judge seemed to be inviting recitation of additional “what if” scenarios by her comments.

  “Mr. Corrigan,” Judge Crouch said, with a touch of concern in her voice, unmistakable to all present in the courtroom, “it is precisely such a time and point in these proceedings that this court wishes so desperately to avoid. If the jury were to become so muddled or conflicted what could the court say at that point to cut the Gordian knot? Would not the court on proper motion be required to declare a mistrial and then start all over again? And just what would starting over accomplish in the long run? The court would like to hear from other counsel now. Mr. Lopez, would you like to make any comments at this time?”

  Mario Lopez maintained his office in Visalia and enjoyed a solid reputation as a hard-working and well-prepared lawyer who served his clients with everything he had. His track record was very good, although he needed to do some major homework to become prepared to handle the interests of the Conservancy Fund, his responsibility in this case. Probate litigation was not a field he could honestly say he knew anything about from personal experience. Indeed, this was his first case in this category, and it threatened to turn into a “barn burner.” His client was pleased with the legal representation provided, and the claim of the Fund did not appear to be in jeopardy. The Fund simply needed an attorney to keep an eye on things while the major litigants slugged it out over heirship of Guadalupe Figueroa and the life-care agreement claim of Marti Barnes.

  “Yes, Your Honor, I would. Thank you. My client, the Conservancy Fund, supports the court’s motion to hire an expert. We cannot see any potential harm and applaud the court’s effort to make this effort to assist the jury reach an informed verdict in the case. Since the case now verges on something akin to a class action homicide trial,” he added, pausing for any acknowledgment of his bizarre reference, which never materialized, “my client, the Conservancy Fund, is dedicated to assisting the court and jury find the cause or causes of death in this case. As the court already noted, the two experts who have filed their respective declarations in support of the MSJ offered evidence that if believed, could disqualify one or more claimants from inheriting a share of the decedent’s estate because of complicity in causing the death of Mr. Martorano. In the alternative, the jury could reject the testimony of both experts, and we would still be left not knowing what really happened to the decedent. A failure of proof is not the equivalent of the establishment of any fact. I would hope that all this effort in preparation for trial results in something more conclusive. If another expert will assist in the quest for truth, as noted previously by counsel, my client and I are all for it, Your Honor.

  “And I would appreciate the opportunity to comment on the court’s point concerning defendant Barnes’s ability with very little or no resources at her disposal to retain an expert on her behalf. May it please the court for me to elaborate, Your Honor?”

  “Why yes, Mr. Lopez, please comment on the point if you wish.”

  “Thank you, Your Honor. It occurs to me that retained experts necessarily limit their inquiries to information and opinions that benefit their clients only. We cannot assume, therefore, that because a highly skilled and qualified scientist is involved in a part
icular case, that his or her efforts will continue once an answer satisfactory to the client is developed. No matter how interesting the discovery of additional detail might seem, it is deemed beyond the scope of the assignment. Sadly, much wonderful talent is used superficially, it seems.

  “As I have said previously, my client favors an inquiry that is as full as possible, since the Conservancy Fund stands for complete exposure of the truth and is not limited by any preconceived notion of what the outcome of the trial should be. My client takes from the estate as a specific devisee. The issue of the cause of death of Mr. Martorano does not impact my client’s claim, as you know. The Fund supports the court’s interest in appointing another expert in this case. Thank you for allowing me to explain this point, Your Honor,” concluding his remarks.

  “You are welcome, Mr. Lopez. Mr. Fineman, you’re next, if you wish to make a presentation.”

  “Yes, I do, Your Honor, thank you. I’ll be brief.”

  Uh-oh, thought the bailiff, the meaningless promise, again. All trial attorneys seemed to say that phrase in their sleep. Still, he had to concede that the schedule had not been badly abused thus far.

  “My client, Guadalupe Figueroa, sends her regrets today for her absence. She has the flu, but she hopes it is a short-lived virus. Lots of that going around these days. Anyway, it’s much better that she stay home and rest—not to mention, stay away from the rest of us for the time being.

  “I understand the positions of all parties who have addressed the court this morning, and I’ve read all the briefs submitted by counsel. It’s obvious to me that another expert should be welcome to join this quest for truth. With a minimum of three forensic experts in the case, we might even find occasional consensus of all of them. This in itself might be reassuring to the jury who will ultimately have to solve this mystery.