Some of us have discussed how we have perceived the defense’s motions as being silly, at times. Such as asking for a change of venue when the defendant, and Joel Brodsky (scroll down slightly to his 5/3/2008 thoughts on media exposure), have done anything but avoid the media, making it difficult, so the defense says, to seat an unbiased jury in Will County. Some of us may also be wondering if they should suffer the consequences of their actions, as if it’s fair to expect the Judge to grant their request, when it was their own doing.
Karen Conti was able to answer some questions for us involving pretrial motions. In the end, the obvious is noted. Regardless of how and why this defendant currently finds himself in unfavorable situations, the defendant is, and should be, entitled to a fair trial process.
Q: Of course, it’s understood that credibility with the judge and/or jury is important. In the case of pretrial motions and oral arguments, what will the Judge be looking for? Are case cites only part of what he’ll base his rulings on? If not, what other factors does he consider in pretrial motions? If there are case law cites that support each side’s legal position, how does the judge make a final determination? Does attorney credibility weigh-in in determining whose case law cites are more on point?
CONTI: In ruling on pretrial motions, the judge relies heavily on what the statutes and cases decided in the past interpreting the law say. The judge, in deciding some issues, has great discretion. It depends on the issue. Attorney credibility does not weigh in except that judges will tell you that when an attorney is not honest in interpreting a case or misstates facts, the judge loses confidence in the integrity of the pleadings and will question whatever that attorney files. But, for the most part, it is up to the judge to check the attorneys’ research and make sure that both attorneys are accurately and fairly making their arguments.
Q: Do you have any opinion on when and if it’s beneficial to concede points as a basis for appearing credible and reputable to a judge? (Specifically, the defense is asking for a change of venue due to overwhelming, intense media coverage, in spite of it being indisputable the defendant and his defense counsel contributed to the majority of it.) Might it have been better to admit “missteps,” but ask the Judge to rule in the defense’s favor, regardless of who is to blame? Or, on the other hand, can the Judge determine that it was the defense’s own doing, therefore, they should not be granted a change of venue, possibly even opinionating that it was done intentionally to create the current situation (“white noise”)?
CONTI:The most important thing to remember is that the judge’s obligation is to make sure that the defendant gets a fair trial, no matter who is at fault when it comes to pretrial publicity. It is the integrity of the proceedings and the public interest in having a person tried fairly that is paramount. An attorney should concede points when the other side is correct. Again, though, the judge doesn’t decide things like a jury does. A jury is supposed to judge credibility in determining who is telling the truth and who is lying. The judge’s obligations here are to follow the law.
Q: Do you have any opinion on what would be wise to avoid so as not to annoy a judge, or give that judge reason to question future motions, etc?
CONTI:Judges want a fair statement of facts and a fair interpretation of law. The briefs should contain everything necessary for the judge to make an informed decision, but should not be overly wordy. In criminal cases, defense lawyers regularly file numerous motions that they know might not be meritorious (as long as they’re not frivolous) because defense lawyers are allowed to aggressively defend their clients and preserve rights for appeal.
Q: Does a Judge familiarize himself with the attorneys that appear before him, especially in cases as high profile as this, to get an idea of their, for lack of better terms, styles or techniques?
CONTI:I cannot speak for judges, but I doubt they waste much time researching the qualifications and reputations of the lawyers before them. But, it is not uncommon for judges to talk amongst themselves about the lawyers who appear before them and draw judgments about their relative talents or lack thereof. Reputation is everything when you are a lawyer because your score card is not always a good indicator of how good you are. Great defense lawyers regularly represent really bad and really guilty defendants and therefore lose—not because the lawyers lack skill, but because their clients are guilty! Reputations are made quickly and don’t believe that judges are immune from the dialog or gossip.
Thank you, Karen.
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