About twenty years ago, a local Sheriff’s department intercepted a large load of marijuana.
Originally, the Sheriff’s deputies got great publicity for their good work: photos before bales of marijuana and reports of the street value redirected.
Eventually, everyone wondered what would happen to the marijuana. Well, about 4000 pounds went missing from an Army truck parked behind the Sheriff’s Department.
The rest was buried in the landfill, which was too much for a worker at the landfill to keep secret. Word got out, along with a map of the marijuana’s location.
As you can imagine, a few enterprising working guys saw an opportunity. They traveled in the dead of night, climbed past the landfill fence, and dug through the hard clay to convert a few bales for use as they were designed. Each explorer agreed to keep the portion he uncovered and disposed of it as he saw fit.
I entered the story sometime later. As fate would have it, the men got caught, and I represented one man in federal court.
My client’s trial was held before United States District Judge N. Carlton Tilley, Jr.
Judge Tilley was appointed by President Reagan. Before his appointment, he followed an ordinary path to becoming a district court judge — law clerk, assistant United States Attorney, United States Attorney, and private practice as a defense lawyer.
That is where the ordinary ends. Judge Tilley’s reputation as a trial lawyer was extraordinary. By all accounts, he was relentless in investigation, meticulous in preparation, and exacting in presentation. One fellow lawyer called him the finest trial lawyer he saw in a long career.
Judge Tilley is no less precise in the way he presides over a trial.
Most notably for today’s message are his rules about questioning witnesses under cross-examination. The Rules of Evidence allow lawyers to ask witnesses leading questions on cross-examination. Most lawyers read that to mean they can make pretty much any statement as long as it’s followed by the phrase “isn’t that true.”
Judge Tilley reads the rule differently. We can ask a witness “did you go to the store?” We cannot say, “you went to the store?,” even when the emphasis makes it clear the statement is intended as a question.
It may sound inconsequential, but it’s a point of contention for some lawyers, who believe Judge Tilley limits their ability to thoroughly exam an adverse witness with leading questions.
Judge Tilley responds that his parameters allow for leading questions, just not argumentative ones. Questions asked as interrogatories, instead of statements, result in more information and less argument.
I thought of Judge Tilley while considering the response to Judge Amy Coney Barrett’s nomination to the United States Supreme Court and anticipating the upcoming hearings in the Senate.
One headline read, “A Dream for the Right, A Nightmare for the Left.” A podcaster assured me that President Trump has negotiated a loyalty oath that puts Roe v. Wade and the Affordable Care Act in jeopardy.
During Judge Barrett’s confirmation hearing to the Sixth Circuit Court of Appeals, Diane Feinstein asked a nearly three minute long “question” that included the statement “the dogma lives loudly within you.”
Twitter has been ablaze with short arguments from all sides.
The hearings scheduled to begin Monday are incredibly important. Needless to say, I am concerned about the impact any new appointment will have on issues of criminal justice.
There is no way to determine during a confirmation hearing what conclusion a Justice Barrett will reach on a particular issue in a particular criminal case. But we may learn something about her philosophy and approach.
We won’t know whether or how the hearings influence the political process. But a sense that Judge Barrett is treated unfairly can’t possibly help her adversaries.
Judge Barrett will not concede that she pledged loyalty to anyone or answer how she will decide issues related to abortion or medical care. But we may get some idea of whether or how she will respect precedent.
One thing is certain.
We will learn a lot more if the senators actually ask her questions. If they put them in the form of an interrogatory, even better.
We are criminal trial lawyers. We represent people accused of criminal offenses who risk losing everything. We work to get them their best results and back to leading productive lives.
Call if you need us, or if you just want to say hello.
P.S. More about the trial later.