Opinion: Courts Shouldn't Silence Verbal Combat
News that the Connecticut Supreme Court reversed the conviction of a former client of mine was a delightful surprise. He was convicted of sexually abusing a young child. At trial, we won acquittals on the most serious charges, but the jury convicted on two counts, enough to yield a six-year sentence on judgment day.
At trial, I objected to everything save the sight of my own shadow. My adversary, Danbury Assistant State's Attorney Sharmese Hodge, and I went toe-to-toe on the tender years exception to the hearsay rule, the scope of the constancy of accusation doctrine, the extent to which there is such a thing as expertise in incremental and delayed disclosure — all familiar bugbears in cases of this sort. I was hoping that the Supreme Court would reverse on one of these grounds.
Instead, the court reversed on an issue I never raised — prosecutorial misconduct. Sharmese called me a liar during her rebuttal case. She claimed I favored child abuse. She accused me of using smoke and mirrors in my cross-examination of the child. I recall listening to her the day she huffed and puffed with thoughts of strangling her.
But I figured she was just doing her job. I mean, it's closing argument, right? Isn't that where we're supposed to pin our ears back and let 'er rip?
I gave a closing argument the other day in Middletown. My adversary was Pete McShane. When I accused him of using parlor tricks to prove his case, he looked as though I had kicked him in the groin; he seemed genuinely hurt. Sharmese wouldn't have minded a verbal dust-up.
I didn't take the appeal in the case Sharmese and I tried together. Richard Emanuel did. Rich is one of my favorite people in the state. Having him read a trial transcript of mine is like a trip to a benevolent principal's office. Indeed, I often call him in the midst of trial when I am trying to transform some ornery intuition into something resembling a legal principle.
It was Rich who spotted and framed the prosecutorial misconduct claim against Charmese.
I'm always a little troubled when I see an appellate tribunal reverse a conviction on the grounds of rhetorical excess during closing argument. I worry that these rulings will chill good advocacy. I don't want to get geared up for the verbal combat that is trial with a judge's bootblack on my lips. Prosecutorial misconduct rulings filter down to the trial court and encourage a broad use of discretion by judges when it comes to stifling defense counsel. Not long ago I had a New Haven trial judge sustain the state's objection to my use of a common allegory to end an argument. I can understand a little stupidity and venality among the prosecutorial class; I expect better of judges.
I am delighted my client got a new trial, but I can't help but feel bad for Sharmese. I've watched her emerge in the past few years to be a top-flight trial lawyer. She is tough, determined, quick on her feet, and relentless. Slapping her down just when she starts to take flight seems almost cruel.
I don't know whether the state will try my client again. Neither do I know whether the client will return to me if the state brings on round two. But I'd like the chance to go toe-to-toe with Sharmese again in this case. I wouldn't even complain if she called me a few names, and harrumphed her way around the courtroom like a mad-hatter in search of a hat rack. God knows, I'll have a few choices words of my own for her.
I suspect the re-trial will be more tame, however. She'll be looking over her shoulder, lest the Supremes take notice. That's a shame really. Please, let's not neuter trial lawyers, too. There's got to me some place left for verbal gunslingers, the sort of people who object first, and ask questions later.•