I apologize for the topic of this posting but I am compelled to voice my concerns. As a former prosecutor and now white-collar defense attorney, it is painful to watch a criminal trial which is out of control. ( I know that watching this trial is akin to admitting that I like to watch soap operas but my trial curiosity got the better of me).
There are two significant lessons learned from watching the trial. First, a trial judge has a responsibility to regulate the actions of the parties in a trial. As one federal judge confided in me – “The courtroom is my kingdom and I am the ruler of what occurs inside these four walls.”
The tone of a criminal trial is set by the trial judge and the expectations of the trial judge. Commentators can criticize the behavior of the parties – the defense counsel, or the prosecutor – and even the witnesses. In the end, the trial judge has to take control, has a responsibility to the jury, the victim and his family, and to the system to move the pace of a trial and confine the parties to efficient questioning and behavior.
Instead, what the American public is witnessing is a trial which is out of control. The defendant testified for a total of eighteen days. There is not one federal judge in this country who has ever allowed a defendant or any witness to testify for that long. The extent of repetitive and improper questioning by both sides is so frustrating that trial lawyers everywhere are cringing at the trial judge’s passive approach to controlling the trial. I can name 20 federal judges who would have finished the trial by now and would have demonstrated how to conduct a fair and efficient trial.
A trial judge has a responsibility to preserve and promote our system of justice. Moreover, the trial judge has to demonstrate sensitivity to the victim of this horrific crime and move the trial to a conclusion.
A trial judge has to show the American public (and the world) why we adhere to standards of proof and constitutional protections when attempting to take the life or liberty of a defendant. Unfortunately, what we have here is another travesty (much like Judge ito’s failure to contain the parties in the OJ Simpson criminal trial). It is sad to watch from a trial lawyer’s perspective.
The second lesson learned – which partly is the result of my first point – is the behavior of witnesses on the stand. When a supposed expert witness, like Alyce LaViolette , becomes a fierce advocate for a party they lose their ability to persuade a jury.
Expert witnesses have to maintain their objective approach to a case, despite the fact they have been retained or called by one side to testify. When presented with obvious contradictions or assumptions which would change their opinion or analysis, they have to acknowledge that their opinion would change. The failure to demonstrate flexibility of analysis can only be explained by inexperience and bias. Witnesses can sometimes learn what not to do by watching other witnesses. The Arias trial has given us plenty of examples of what not to do.