“You’re out of order!…
You’re out of order!…
The whole trial is out of order!...”
In 1979, the actor, Al Pacino, starred in the movie And Justice for All. Pacino played a defense lawyer (Arthur Kirkland) representing a judge (Henry T. Fleming), who was accused of beating and brutally raping a young woman. Tormented by the duplicity of his client, Arthur Kirkland stood before the jury, struggling. In final summation Kirkland began the process of stepping across a number of lines: putting before the jury the fact the client took a lie detector test (inadmissible evidence); admitting explicitly that the search for “justice for all” is distorted because both sides want to win, “regardless of the truth” (objectionable conduct, a comment inviting the jurors to hold the court in contempt, bringing disrespect upon the court); electing to unleash a verbal assault, directed at his own client, the prosecutor, His Honor. “The whole trial is out of order.”
A summary of Kirkland’s tirade: first he admitted that the victim of the crime had no motive to lie, that she was not lying. The jurors, the courtroom audience, acted appropriately with regards to his admission, hushing with astonishment. Kirkland then turned, looking directly at the client, pointing, screaming, with clear and concise diction. “My client the Honorable Henry T. Fleming should go right to f_ _ _ _ _ _ jail, the son-of-a-bitch is guilty, that man is guilty!” He doesn’t stop there, he calls his client slime; tears now intermingled with his anger, “If he is allowed to go free, something is really wrong!” The trial judge, in this fictional setting, has now lost total control of his courtroom, telling Kirkland, “You’re out of order!” The unrepentant Kirkland continues to plow every burrow, crease every seam, pointing back to the judge, expounding, “You’re out of order! You’re out of order! The whole trial is out of order!” For good measure, Kirkland calls his client depraved, sick, crazy, a man who beats and rapes women; as they drag his (Kirkland’s) butt out of the courtroom, he decides to let loose on the prosecutor. “Hey Frank you want to make a deal, I’ll make a deal! I have sick, insane judge who likes to beat the shit out of women! Let’s Make a Deal! Let’s Make a Deal! Whaddya you wanna gimme Frank, three weeks probation!”
So it goes in the world of fiction, conditioning the public to view the role of lawyers as all a game. Lawyer being contemptible, stepping on the feet of the Court, soiling Lady Justice’s rope, representing those unworthy of representation, allowing the rest of us (the public) to hoist lawyers by their petards so that the world can say, “I told you so, I knew it, the damn lawyers!”
* * *
Recently, a judge in Las Vegas, Clark County, Nevada, held a Public Defender in contempt of Court. The lawyer, Zohra Bakhtary, was ordered, by Judge Conrad Hafen, placed in handcuffs then seated next to inmates in court. His Honor explained he wanted to teach her “a lesson” about courtroom etiquette.
I don’t know Ms. Bakhtary or the Judge. I have never appeared in any of the state courts in Clark County. The only time I had an opportunity of appearing in their area, my matter was in federal court and I ultimately sent another lawyer to handle the matter. Oscar Goodman, then one of the nation’s preeminent criminal defense lawyers (and later the Mayor of Las Vegas), allowed us to take our depositions in his office – that’s it – a limited knowledge of the Clark County bar. Even with my admitted territorial limitations, I muse to write an open letter to Ms. Bakhtary.
Whether she receives the letter or not is not the issue. The letter, to some degree, is written to address the common misunderstanding of the role of counsel, and to address those who automatically blame lawyers for any conflict occurring in the courtroom (particularly minority counsels). And finally this open letter is addressed to the profession and the public; refusing to recognize that those who sit on both our state and federal benches are human beings prone to mistakes, biases, and prejudices, and just maybe, sometimes, be wrong.
“Dear Ms. Bakhtary:
I read of your contempt citation while appearing before the Justice of Peace in Clark County. I write to extend a hand of friendship and support, as others have so extended to me over the years. I too am a minority, when I practiced law, oft-times my race interceded with my participation in our system of justice. I found myself watching while other counsels of different races being referred to as “counsel”, “Mr.”, “Mrs.” or “Ms.” Sometimes taking a seat, being astonished by the courts and opposing counsels continued reference to each other by formal title, in front of juries, in courtroom setting, while referring to me by first name. Consistently wondering whether the language choice was intentional or unconscious, second nature, repeatedly perform, the behavior becoming routine, akin to tying one’s shoelaces, brushing one’s teeth.
I write because I still remember the times I was held in contempt and the organized bar’s immediate reaction was to heap criticism my way. A few wise heads always wrote, or called; extending a hand, encouraging me to continue to take the lawyer’s creed seriously, offering to talk if I needed to talk. If in reading this letter, you are shocked by my admission of being held in contempt, and still willing to write about same, don’t be.
I have been held in contempt, officially, twice; unofficially, five, six, seven times. I will not discuss them all in this letter. I will tell you about the first and the last. Before proceeding, let me provide you my definition of an “unofficial contempt citation”: The blacklisting of the lawyer, generally off the books, requiring no hearing to test the validity of the allegations, mentioned and shared among an in-group of like-minded, shared with the public in code, language designed to make clear the lawyer’s presence in the profession persona non-grata.
You’ve done nothing wrong. There are lawyers and practitioners, and former lawyers and practitioners, who understand the emotions now playing out in your head. The reading and rereading the transcript of the hearing; listening to others make fun of the event, while you find nothing funny; trying to explain to family members your conduct was proper and that your choice of profession was a right one; replying in your head the number of times you have heard others judges refer to you by your first name, while pretending not to be able to remember your last name or purporting not being able to say your last name; thinking, thinking, thinking, then seeing those handcuffs on your wrists in your dreams.
My first contempt citation occurred within my first six months of practice. I appeared before a state district judge in Galveston County, for the first time. His Honor greeted me in an Arthur Kirkland kind-of-way. “I have heard of you, Mr. Griffin, you will not win in my Court.” I understood his message, knowing I had won consistently since coming to the county, having won ten (10) cases in a row. A new practitioner, a young lawyer, full of vim and vigor, on full introduction being compliment in one sense, insulted in another.
I thanked His Honor, expressed pleasure in meeting him and went about the business of representing the criminally accused. I did something else however, I reached out for help. When we took a lunch break I made two calls; one such call to John Ackerman, with the National College of Criminal Defense Lawyers, the other to Craig Washington, a Houston criminal defense lawyer of note and fame. Both predicted I would be held in contempt, and directed me to the statute surrounding the law of contempt (Texas law permitted lawyers, once held in contempt, to be released are entitled to a personal recognizance bond; language I subsequently used in a motion to avoid confinement).
As they predicted I was held in contempt. Later a story appeared in the Houston Chronicle. The paper incorrectly reported the facts, a story written even though no reporter was in the courtroom at any point in time. Reading the story caused me to replay out in my mind what had occurred, for a thousandth time. Fear, anger, tears and worry followed in due course. I am not going to be long in this profession, “six months!” Lawyers in the bar shunned me immediately, fearing taint, as if the color on my hands would rub off, telling others they had somehow associated with me.
The fight over reputation is a vigilant one, constant pulling and tugging, all designed to define you. I say that to say this – the reporting will not always be right. The majority may never support you. The majority of your fellow bar members may never understand, seeing Arthur Kirkland as the example. Remember most in the profession have never been treated in such a manner, will never experience such treatment; will never really understand, willing to assign the reason for your disparate treatment to a readily available scapegoat, you, the lawyer.
Smile, there has been some progress. I have read the transcript, His Honor didn’t call you “honey”, “girl”, or preface every statement with a challenge to your gender wondering out loud why you are even allowed in the courtroom. His Honor did refer to you by your first name, stripping the courtroom of its formality, lowering your esteem, seeking to make an example of you. When I read the story and the transcript, I grew sadder, however thankful a record was taken.
During my practice, I made it a habit of filing a motion in limine prior to the start of trial. The motion made a simple request – the other side, and the court, refer to me by formal title (the same as they refer to each other, themselves). The motion spoke of the Southern tradition of referring to people of colour by first name (study the writings of Frantz Omar Fanon to understand more with regards to the language of subjugation), while others are referred by former title, elevating their status, lowering the position of the minority member, bringing disdain in the eyes of the public, jurors and the clients. Please note the use of words is not by happenstance. Most times the motion was granted, without debate. Other times the lawyers and the court attempted to challenge this small attempt to make the process fairer.
In civil cases tried in Tyler (located in East Texas) and Waco (located in Central Texas) the trial judges denied the motion and proceeded to use the language in which I complained about throughout the trial, followed by extending an invitation for me to complain. I didn’t complain. I tried my case, modifying my theory by using their words against them (by preparing the potential jurors in the jury selection process for bias, challenging them to be fair, spending time talking about the meaning of race and words, professing honestly I was from out-of-town, afraid and needed their help). The jurors listened to the words used, watched with astonishment, and embarrassment. Things have changed.
On another occasion while in trial in Houston (criminal case), the Visiting Judge and the prosecutor opening referred to me as “Griffin”, a repeated reference. Not counsel, not Mister Griffin, “Griffin”. To get a full meaning, let me borrow your imagination. The name has to be said with a Texas accent, a bit of lemon peel placed on the tip of the tongue, spitting while speaking. For good measure, the speaker should laugh, step across the line like Kirkland, and dredge up idioms from the old south (race and history).
The co-defense counsel, Bruce V. Griffiths (a white male), was astonished by what was occurring. I told him not to be, welcomed him to my world, and reminded him we still had to figure how to win. I also did something else. I assured Bruce the court reporter’s record would be whitewashed of the offending comments, and any racially tinged inferences. He didn’t believe me on the latter point, assuming my minority paranoid had run amok. Still to this day, he remains astonished the transcript looked nothing like the hearing, deleting references to “boy”, “son”, “Griffin!”, or the untoward conduct, laughter, disdain. Of course, this is not the way justice should be played out, but you know that, don’t you? I write to explain there are those of us who understand your position and feelings, having travelled, unfortunately, down this well-worn path. The written record Bruce read later was a clean one, presenting a fair trial on paper, as if none of the events ever occurred. I wanted so much to tell Bruce my prediction was based on a learned experience, and that I didn’t possess any magical powers.
In my first contempt, that record too was cleansed. “Her fingers never move when Judge starts saying what he is saying.” Messrs. Ackerman and Washington listened, following my complaining with the same instruction, instructing me to bring in bystander witnesses. After I held in contempt the court officials’ memories grew faint; as if I existed in a distant world, far away in space and time. I did listen to the advice given, inviting, imploring, begging others from the floor of the building in which my office was then located to come to the courtroom to take notes (in order to document, witness, and to assure I had some protection other than my belief systems, a fundamental belief in people).
I say all of the above to say – listen and learn from others in the profession, realize there are lawyers who understand, lean on your colleagues and block out the naysayers. The next time you are in court, and the judge asked whether you are ready or not, flash a brilliant smile, and say that you are!
In your spare time (as if trial lawyers have any spare time), integrate other disciplines, study literature, the works of linguists (the power of language), history of the profession and those who practiced before you ever existed, examining their paths and struggles.
You will be fine. You will win the contempt. His Honor will ultimately have to back down and come up with a rationalization for his conduct. He will never admit his wrong-headed approach; will never study the words and language used – the disposal of the contempt citation can be characterized as a sweeping action. I hope the last point is clear, the language doesn’t mean a total cleaning, the sweeping I mention is more akin to the type of cleaning a sibling does, not totally clean, just enough for your parents to silence your complaint about the sibling not doing his/her chores right. You will have some residual anger, but trust me, you will be fine.
Now, if I may, a more apt-description of unofficial contempt. While preparing for a case in federal court, His Honor invited me to his chamber to visit. Other counsels were not invited. His Honor explained why he wanted to do so, “I want to visit Mr. Griffin in relationship to another matter before this Court. Mr. Griffin, if you would, I would like to see you in my chambers.” After the door closed, after taking no more than three steps, His Honor cast his rope aside, approached me with anger, and immediately began screaming, telling me of a brief written to the Fifth Circuit Court of Appeals on another case. He made clear he felt the brief, which contained my signature, set him up for embarrassment before “those asses at the circuit”.
I knew what he was talking about, stepped back and attempted to explain I had seen the brief, that I was in trial out of town at the time and that I had requested an associate in my office write the brief. “I learned later the ACLU’s lawyer out of Houston wanted to write the brief and did so, signing my name to the brief instead of hers. I didn’t disagree the position the ACLU lawyer took (that His Honor was wrong on the law and his ruling), but disagreed with the verbiage and tone of the writing, a personal attack on His Honor.” It mattered not, His Honor continued to scream, telling me, “I intend to “F_ _ _ you for the next forty years.” He meant it. Yes, he did. He meant it.
Telling his fellow Judges in the Southern District, asking for their help, telling his friends in the bar, reminding me with every adverse decision of his promise. Bills mounted, unpaid taxes followed, his opinions instructed the clients to file grievances, eighteen (18) such grievances followed, staff fled. Every day was an adventure, wondering and watching with amazement the ability to place one foot in front of the other. “Forty years!” he shouted! “Forty years!”
Years later when one his fellow judges and I was sitting at the same table, she asked me for the source of the hostility. I gave her context and history, leaving some of early history out (not discussed in this letter) (some things you just don’t discuss over dinner and surely not in an open letter). Her Honor thought for a minute, as if absorbing the words, turned her head, rolled what appeared to be ice around in her mouth, assessing before replying. “There is a good thing about the story?” Said in a manner that Judges are wont to do. “And what I inquired?” Said in a manner the subjects of the Court are wont to do, albeit somewhat incredulous, shocked by Her Honor’s assessment. Her Honor then turned back in my direction, grabbed my hand and explained, “You only have thirty-three years left!”
So counsel; smile as much as you can, it is curative. Cry when you have to cry, it is cleansing. Keep objecting, protesting and protecting the interest of your clients; the profession demands nothing less of you. Then teach the judge how to say your last name and every time he attempts to call you otherwise, correct him, pronounce your name clearly, with pride, causing history and your people’s history to resonate throughout the hallowed halls of justice. Oh yes, when there is an attempt to bastardize the name (somewhat akin to bastardizing history), reject anyone, hear me clear, anyone, blessing you with a nickname – you are not a pet!
/s/ Anthony P. Griffin
Anthony P. Griffin”
* * *
As the movie, And Justice for All, played to its ending, the Bailiffs hauled Arthur Kirkland out of the courtroom. He is seen in the next frame on the steps of the Baltimore County Courthouse, contemplating his part-heroic, part-histrionic, clearly-contemptible behavior. He didn’t go straight to jail. He was not shackled, “to make an example of him.” I looked but didn’t see any handcuffs on his wrists. That Hollywood is a funny place.