Aug 05, 2013 Winning a marijuana trial despite a judge’s many roadblocks
My greatest trial law teacher is Steve Rench, who underlined to me eighteen years ago that judges will not make an effort to rise higher than I give them trust to rise to; and a difficult judge is like a boulder on the highway, which we can either choose to move in the course of sustaining a hernia, or drive around. Just wait, though, when faced directly with that boulder, rather than talking calmly about it with an ally like Steve Rench.
Recently, I won a marijuana possession bench/District Court trial in Maryland. Because my client faced not over ninety days in jail for the quantity of marijuana, we had no right to demand a jury trial, other than to appeal for a retrial in Circuit Court before a jury if we lost in District Court.
I found the judge cutting off what I viewed as several legitimate lines of cross examination and argument, most of them brief, and with the length of some of my discussions with the judge about his roadblocks being not much shorter than the avenues I was pursuing in the first place for cross examination and arguments on motions and objections.
When a judge cuts a lawyer off during trial, it is different from an appellate judge ‘scutting off argument, because the appellate judge has the lawyers’ written briefs that are filed long before the case is argued in the appellate court.
A trial lawyer cannot anticipate all briefable issues that might arise at trial. How much of such a brief would a judge read, particularly if for a bench trial when the judge has many trials scheduled the same day, as with this particular marijuana possession trial?
With this marijuana bench trial, the judge kept cutting off what I viewed to be my legitimate arguments on search and seizure, chain of custody, and chemical analysis, asking a narrow question after his interruption to try to prove his own point, and cutting off any further argument.
I told the judge: “I feel I am disserving my client, by my inability to have my legitimate arguments heard. Instead, your honor is repeatedly cutting off my arguments, asking a narrow question addressing only a small piece of my argument, and not allowing my brief and legitimate argument to be heard.”
The judge said he did not want to hear how I felt. In cutting off one of my arguments, when I urged to be heard further, the judge told me my only recourse to be heard on the argument was to appeal. Instead of my saying that the availability of a de novo appeal did not mean we get less than full justice in Maryland District Court, I said: “It would be a shame for my client to have to pay $80 for the appeal filing fee [let alone the much larger bill than that for a lawyer on appeal] when this issue could be resolved right here in District Court.”
Judges in Maryland District Court usually want advance notice if a trial will exceed sixty to ninety minutes. Here, the trial was not likely to exceed that timeframe. Unfortunately, an unsuccessful appeal to Circuit Court from District Court with a new jury trial might, before at least some Circuit Court judges, meet with a firm sentence that sends the message to think twice before taking up jury time on a misdemeanor in Circuit Court. Consequently, full justice must be afforded District Court litigants, of course.
I ultimately won this trial, when the judge determined during closing argument that the charging document failed to make clear that my client was charged with possessing only less than ten grams of marijuana — seeing that the chemist testified that less than 0.3 grams was seized — during closing argument, before I had my turn to close. Was the judge was cutting me off with the knowledge that he was going to acquit? I will never know. I will take my wins anywhere I can get them.