Washington Courts

On Tuesday this week I observed a hearing before the Washington State Supreme Court.  Three of the justices asked questions of the attorney for the appellant — the appellant was a young woman lawyer who is said to be a lawyer who should be disciplined.  The Washington State Bar Association, says that the young woman should be suspended for some minor non-action in Superior Court. Suspended from practicing and making a living for three, hopefully they wish, six months. 

(The complaint against her was a complaint filed by her opposing counsel.  The Bar has taken sides in the dispute — a common occurrence these days.  The bar has lawyers it favors and other lawyers it does not favor — this is today’s WSBA Lawyer Discipline System.)

What impressed me was that the justices asking the questions seemed to be saying that they thought the young woman lawyer was a “bad person.”  That is to say, they were seemingly saying or implying that the lawyer in the dock was not just  a lawyer who may have made a mistake, not just a  lawyer who should have conducted herself otherwise, but a person who was “bad.”  That is to say, the demeanor of the justices and the tone of their questioning seemed to say “counsel, we think your client is a bad person.”  That certainly is what Justice Alexander and Justice Fairhurst were saying as far as I could tell.

Interesting.  That perhaps is what our system is becoming.  The people who are the Platonic Elite of our society have devolved into name calling and personal judgment making.  It seemed to me these questioners had no idea that what was before them was humanity in its variations and that there was no grand good and evil being displayed.  The situation before the court was a societal reality and the solution had nothing to do with name calling and the infliction of revenge and pain and economic and social distress. 

I feared for the lawyer in the dock and the lawyer representing the lawyer in the dock.   I feared for them because they were not only witnessing the devolution of our society, our polity, they were the subjects of  a devolution in our society,our polity —  our community, our history, the history of mankind.  They, in this drama, were the subjects of an historical retrogression.  

There is trouble afoot.  Some of our leaders, our “wise ones”,  are not what they should be, not what we need.  Not what the community needs. to be a community.  Where has reason and righteousness and justice gone these days? Or, perhaps not so grand a comment — where are the adults?

These two — the young woman and her lawyer — were the beneficiaries of ignorance and churlishness by some of our grand leaders.  What explains this?  Maybe it is a truth that community and the truths which make community  – compassion, understanding, love  – go backward rather than forward from time to time.

Jerome Frank in his book Courts on Trial: Myth and Reality in American Justice (1949), describes three theories of of juries:

1.  First, the theory that the jury merely finds the facts and that it must not and does not concern itself with legal rules and instead “fully accepts the rules as stated to them the trial judge.” Ibid. 110.

2. The second theory is that the jury not only finds facts but in addition “uses legal reasoning to apply to those facts the legal rules it learned from the judge.” The notion here is that “a jury’s verdict should be regarded as ‘the reasoned and logical result of the concrete application of the law [I. e., the rules] to the facts.’” Ibid. 111.

This system has been the basis for criticizing juries because juries seemingly have the tendency to find facts in order to reach the result that desires. Ibid.

3. The third approach is the approach discovered by questioning average people who serve as jurors. That is to say that juries do just what juries do in the particular case where the jury functions. If a jury wants Jones to collect $5000 from a shopping center, or they don’t want pretty Nelly Brown to go to jail for killing her husband, they bring in their jury verdict, their general verdict, accordingly.

This third approach is the “realistic” theory. This realistic theory of the function of the jury is “that, in many cases, the jury often, without heeding the legal rules, determines, not the facts, but respective legal rights and duties of the parties to the suit. From the general verdict the court process results in a decision which determines the jury’s notion of the rights and duties of the parties. Ibid.It will be interesting to speculate, or perhaps discover, which theory the Putnam v. Morning Star Boys Ranch jury utilizes in reaching its general verdict. (A general verdict is one by which the jury pronounce at the same time on the fact and the law, either in favor of the plaintiff or defendant.)

Thursday January 21, 2010 — 7:06 pm

Today was the third day of trial. Tim Kosnoff, plaintiff’s attorney, asked a few more questions of Father Joe Weitensteiner. Then it was time for Jim King, the attorney for Morning Star, to ask some questions. Kosnoff had called Father Joe as an adverse witness in his case. King did not have to cross examine him so he passed and deferred to the questions and testimony he would secure when he called Father Joe as part of his case.

Then, Kosnoff put his client, Kenny Putnam, on the stand. ( More about this in a later post.) Putnam answered a several questions and then about 11:30 am or so Kosnoff was finished. King did not cross examine Putnam. Again, he deferred to the questions he would ask in the course of his direct testimony of Putnam when he puts on the case for the defense, for Morning Star.

There may have been another reason for waiting to do cross examination of these witnesses – to defer the questioning at a later time. This has to do with what I call one of the “local, local rules” which Judge O’Connor imposes in trials in her court. The particular local, local rule in question here is that in her court, the amount of time for cross examination cannot be more than the amount of the time of the direct examination. An interesting rule (to say the least).

Kosnoff expected the testimonies of Father Joe and Kenny Putnam to take the rest of the day. He had no witnesses to call, no witnesses present or available. What to do? The judge took this in stride and dismissed the jury for the day. They are to come back on Monday ready for trial starting at 9:00 AM, Monday, January 25, 2010.

With the jurors gone, discussions began about the future timing of the case and the witnesses. Mr. Kosnoff said his case would be over by Tuesday instead of the planned day of Wednesday. The first witness on Monday is to be Michael Clarke.

This is when the bomb was dropped.

There have been discussions regarding witness Michael Clarke all week. He is incarcerated at the Airway Heights Correctional Facility and there have been difficulties making arrangements for him to be transferred from the prison to the courthouse for the trial. Transportation must be arranged and officers present to ensure he does not break from custody. The dispute has been who is responsible for this effort and cost, the people at Airway Heights or the Spokane County Sheriff’s Office. Apparently arrangements have now been made for Monday.

Another part of the matter of Clarke as a witness has to do with why he is being called. He is being called at the last minute and apparently as a result of a reference to Mr. Clarke by Stephanie Miller (formerly Carl Smith). The attorneys were to have an hour or so with Mr. Clarke before he testified.

But, again, Mr. King wanted to know why Clarke was being called. At this time, Mr. Kosnoff explained the Miller connection and then, rather dramatically, he looked back toward the audience in the courtroom and then looked back to Judge O’Connor and said that Father Joe had paid $2,000 cash to Clarke for his silence, that Clarke had procured boys for Father Joe, that Father Joe and a lawyer, a man by the name of Daley, had met with Mr. Clarke to review his testimony and that there was another person who witnessed the delivery of an envelop by Father Joe to Mr. Clarke.

The courtroom was stunned, at least those of us in the courtroom who did not know what was coming, were stunned. One suspects others knew. During the week, there have been other lawyers in the audience in the courtroom who have clients who are also bringing cases against Morning Star. Julie Twyford was also there. She is the attorney for Michael Clarke.

Mr. King was surprised and objected to Mr. Clarke being called.

Judge O’Connor kept her composure. She decided that Mr. Clarke would come to court on Monday January 25 and that he would be examined by the attorneys out of the presence of the jury. She also said she may want to have the testimony of the lawyer who met with Mr. Clarke with Father Joe.

The case has taken on a completely different character; there is something afoot which is not going to be very pretty. In fact, what was said involves serious criminal liability. The question is going to be, whose criminal liability?

Now it could be that Mr. Sanai is generally a bad guy. But that was not the issue. And that is not something about which members elected to the Washington state Supreme Court should be making judgments.