It must be tempting at times for a judge to tell trial lawyers, in chambers or even during a bench conference, just how bad they are. Judges who themselves had respectable careers as attorneys — and presumably most of them did — must cringe at what they hear from time to time from inexperienced, obnoxious or over-the-top attorneys.
I'll offer one story from Baltimore Circuit Court, circa 1983.
It was no laughing matter: A man stood accused of walking into his place of employment, a box factory in East Baltimore, and shooting four supervisors. Fortunately, no one died in the shooting spree. The man was charged with four counts of assault with intent to murder. He entered a plea of insanity. He had a trial before Judge David Ross.
During closing arguments, the man's defense attorney stood before the jury and pulled out a red balloon. The balloon was a prop in what turned out to be a sort of one-man mini-pageant. The attorney argued that numerous bad breaks and injustices — "A series of events that would blow anyone's mind" — had given his client "a heart attack of the mind" that pushed him to do what he did. The attorney titled his presentation "The Destruction of A Man."
Each time the lawyer mentioned a pressure point — a back injury, a postponed workmen's compensation hearing — he blew air into the balloon. He did this 17 times, and the balloon swelled and popped. "That's it," the lawyer said, "the destruction of a man."
Some jurors jumped when the balloon popped. Some snickered. Eyes rolled in the courtroom, and some spectators smothered laughs. I don't recall the judge's reaction, if it was visible at all, but certainly it must have been something like "Are you kidding me?" He must have been tempted to call the attorney to the bench midway through his performance and tell him, "Sir, if you continue and pop that balloon, I will hold you in contempt." The judge might even have been tempted to declare a mistrial on account of the overly theatrical defense counsel, but I guess he knew he shouldn't do that.
So, the case went to the jury, which took 76 minutes to reject the defendant's insanity plea and find him guilty of all counts. The jurors were obviously unimpressed with the lawyer's performance. They might have found it demeaning. For all I know, they broke into howls of derisive laughter as soon as they hit the jury room.
The point is, it was the jury's call, not the judge's. The judge did not declare the lawyer ridiculous and did not declare a mistrial.
Which gets me to Baltimore Circuit Judge Alfred Nance and a strange decision he made that led — no laughing matter — to the release of an accused murderer in late July.
Nance presided at the trial of Montrelle Braxton, who was charged in the stabbing death of a man named Tarvis Briscoe in May of last year. From the outset of the trial, Nance appeared to have some kind of a problem with the woman who defended Braxton, an assistant public defender named Deborah Levi.
According to reporter Justin Fenton's article in The Baltimore Sun, Nance chastised Levi for behaving at various times like a "mother hen" and a "youngster" and engaging in "sleight of hand." He said he had observed jurors grimacing at Levi's "disrespectful" behavior, apparently to the point that he believed it harmed the defense.
"The question that this court poses," Nance said, "is whether or not its decision will be based on the evidence, or whether or not the jury's decision will be based on their interpretation and evaluation of [the defendant's] representation."
He then declared a mistrial. He did this sua sponte — that is, of his own accord, without being asked.
This is strange stuff, ladies and gentlemen. Judges usually do not summarily grant mistrials based on their concern for the quality of the defense counsel. There really has to be a compelling reason to keep a case from going to a jury. Usually, there's at least a motion asking the judge to dismiss the charges.
When the state sought to retry Braxton for murder, Levi filed a motion to dismiss the charge, claiming a second trial would constitute double jeopardy for her client. After reviewing the case, another Baltimore judge, Julie Rubin, granted the motion on July 28, and Braxton was released.
"Some grounds for a mistrial, like a hung jury, allow for a retrial without invoking double-jeopardy protections," said J. Amy Dillard, professor at the University of Baltimore School of Law. "Most judges know those rules very well, and steer well clear of interrupting a trial once jeopardy has attached."
But Nance is an unusual judge. He's been three times investigated and once reprimanded for an explosive temper and inappropriate courtroom conduct, especially toward women. This time his actions led to the dismissal of a murder charge — no laughing matter in Baltimore, the city that bleeds.