Sergio De La Pava - A Naked Singularity

Lastly, I forgot to mention this earlier. During the course of this trial, you may come into contact with some of the parties involved in this litigation, for instance, in the hallways or the elevators. By parties I am referring to the assistant district attorney, Mr. McShaughnessy, defense counsel, or even the defendant Richard Hurtado. I instruct you now that should such contact occur they will not speak to you even to say hello. Do not be insulted by that as they are simply following my instruction not to communicate with any of the jurors. As you might expect, this is insisted upon mainly to avoid even the appearance of impropriety.

With that last admonition, I thank you for your service today and we’ll see you bright and early tomorrow morning.

Thank you.

(Whereupon, jurors leave courtroom.)

THE COURT: See you both at 9:30 sharp.

DEFENSE COUNSEL: I need to make a record.

THE COURT: Make it tomorrow.

DEFENSE COUNSEL: No, I need to make it now.

THE COURT: Regarding what?

DEFENSE COUNSEL: Prior to opening statements, you indicated that we, meaning the attorneys, would not be permitted to state a basis for our objections. I complied with that directive during the prosecutor’s wholly improper opening statement when I made many objections, all of which were denied. As I said at the time, I strongly object to this rule, which I feel prevents me from making an adequate appellate record. The First Department is clear in requiring that objections during trial must have a stated basis in order to adequately preserve the issue for appeal.

THE COURT: I am aware of the Appellate Division’s feelings on the mattercounsel.

DEFENSE COUNSEL: I’m glad to hear that. Although I fear it will be of little consolation to me and my client when he is convicted and is effectively denied his right to appeal.

THE COURT: You will be permitted to make a record outside the hearing of the jury. Otherwise, I feel objections become too disruptive to the proper administration of a trial. As I said, you will be permitted to make your record. You may do so now with respect to the objections you made during the prosecutor’s opening. Incidentally, I found your constant interruptions ofthe prosecutor’s opening statement with baseless objections highly unprofessional and I think it speaks very well of Mr. McSlapashee that he did not respond in kind during your opening, as he would have been well within his rights to do.

DEFENSE COUNSEL: The reasons for my objections were these in order. The DA began by making reference to the complainant’s employment status then proceeded to circuitously but unmistakably contrast it with that of my client. This is objectionable for several reasons which include it being an attempt to prejudice the jury against my client by making reference to matters which will not be part of the evidence in this case as I feel confident in assuming, and the DA can correct me if I’m somehow wrong, that there will be no attempt to present evidence regarding my client’s employment status. Nor would any such evidence even be conceivably admissible of course. That objection was overruled without any comment or limiting instruction.

The DA then made improper reference to the fact that the grand jury had handed down an indictment. Besides being prejudicial and highly irrelevant because of, among other things, the vastly different standards of proof involved at trial as opposed to in the grand jury, this comment was in direction contravention of your repeated instructions to the jury that the existence of an indictment is evidence of nothing. That objection was overruled as well without any limiting instruction.

The next objection was based on the fact that the DA was essentially testifying during his opening rather than making reference to what he expected the evidence would show. Again that was overruled. The next two objections can both be characterized as attempts by the DA to create sympathy on the part of the jurors in the hopes that they will base their verdict on those feelings rather than on the evidence. I’m referring here specifically to the prosecutor’s references to nuns and the fear the complainant must have felt upon returning to his van.

The prosecutor then told the jurors the contents of the radio run that resulted in the arresting officer in this case going to the scene. The law is clear that this is hearsay and obviously the DA cannot do himself, in an opening statement, what he would not be permitted to do through a witness at trial. For his next trick, Mr. McSlappahan informed the jury that Officer Leary would testify that the screwdriver recovered in this case was of a kind commonly used to commit theft related offenses. Unless basic evidence law is going to be disregarded in this trial, Officer Leary will not be permitted to offer opinion evidence unless he is first qualified as an expert. He has not been qualified as one and based on the police reports I have received I would be strongly objecting to any such qualification, so the DA’s comment was at best objectionable as premature.

Lastly, I objected three times when the DA, after informing the jury that he could not instruct them on the law, proceeded to repeatedly do just that and do so inaccurately in my view.

All of my objections were firmly rooted in unequivocal New York law. The fact that the DA repeatedly resorted to these types of improper comments evinces either a profound ignorance of the law or a malevolent disregard for it. More troubling is the fact that each of these meritorious objections was overruled and the improper comment permitted to stand without any kind of limiting instruction. Moreover, I was then denied the opportunity to approach the court to fully explain these objections at a time when an appropriate remedy could conceivably still be fashioned. Accordingly, the only proper remedy after such an inflammatory and prejudicial opening statement is an immediate mistrial, which is what I am moving for now.

THE COURT: Denied. Anything further?

MR. McSLAPPAHAN: Your Honor, if I may respond.

THE COURT: No need. Defense counsel’s application is denied. Anything else counsel?

DEFENSE COUNSEL: No.

THE COURT: Then I’ll see you both at 9:30 tomorrow.

(DIANE S. SALON)

“Wow,” said Toomberg. “It’s getting pretty contentious in there isn’t it?”

“That obvious?” I said. “Even from just the transcript?”

“Sure.”

“You’re right, it’s a problem.”

“Why?”

“It’s a screwup on my part Toomie. Pay attention, you might learn something. I need the DA to be sleepy and overconfident, which would certainly be justified in this case. I don’t need him feeling all challenged and vigilant where he might figure out what I’m trying to do and address it before it’s too late.”

“Think he’s figured it out?”

“No, he seems pretty dumb, but even he has to realize that I can’t really raise much of a factual dispute when my guy is caught red-bodied in the fucking van. When he thinks about it I think he’ll focus on showing that the van was used for commercial purposes.”

“A reasonable deduction.”

“Which brings me to my other problem and misstep. So far only you, me, and the mysterious judge in that commentary agree that the defendant has to know the van is used for commercial purposes before he can be found guilty of Burg Three. The problem arises when I have to convince Arronaugh to give me the jury instruction I’m drafting. Aside from her general antagonism towards anyone accused of a crime, I now have to overcome the obvious hatred she feels towards me.”

“But isn’t that true of most judges? They’re almost all predisposed against us, yet their fear of reversal will still occasionally force them to rule in our favor.”