In my last post, I mentioned something sneaky that the defense was doing: one of the lawyers had used blowups of testimony as exhibits – that weren’t really testimony but back-and-forth objections, which were clearly meant to sway the jury.
Judge Donner was smarter than that, and would have none of it. “Excuse me,” the judge said. “Let me see if I can get this straight, because maybe I’m missing something. You need to answer just one question.” She then asked Gaebe, “Is this trial transcript?”
“Yes,” he said.
“Is that sidebar?”
“No… but…,” Gaebe had been busted.
His boards included not only references to objections but also to sidebar conversations.
Those were most definitely off-limits to jurors!
For example, here are just two examples of how the “evidence” written on the boards began: “Thereupon the proceedings were had…” and “We went back… .”
They were clearly referring to sidebar conversations. “You are not having sidebar before the jury,” Judge Donner said firmly, practically scolding Gaebe.
“I agree. I agree,” he said. Gaebe was doing his best to backpedal.
The judge continued. “That is ridiculous. I am just shocked. That is classic Gaebe, but I am shocked that you would try to put a sidebar in front of this jury,” said Judge Donner. “So you go back and you review your material. If it is sidebar, don’t try to show it. That is the reason you have something called a sidebar, Mr. Gaebe.”
I was quick to point out how many of them I had counted. “I have 10 of these, Your Honor. Can I show you the next page?”
“I don’t care about your next page,” the judge replied.
“I wasn’t going to call their attention to that part,” Gaebe said. “That wasn’t the thing I was going to show the jury…” Gaebe lamely offered in self-defense.
“Forget call to their attention. You are not going to show that at all.”
This sidebar sideshow had turned into a courtroom shit show. David Kleinberg was embarrassed enough to stand up and assure the judge they wouldn’t use the boards at all, they’d simply read from the transcripts. As long as they didn’t read anything from the sidebars or a colloquy between counsel and the court, I had no objection.
Of course, I also needed to point out that they couldn’t read anything that had been overruled in an objection from their transcript, either, as I suspected they’d try to get away with that, too. I wanted to say, “C’mon, fellas, where’s your dignity?” But I didn’t have to. The judge clocked them pretty good.
Once we got through the final few issues we needed to review before closing arguments, Judge Donner gave us her instructions on how she expected it to go down. I was to go first, with 90 minutes to give my closing.
Greg Gaebe would go next, followed by David Kleinberg and then Clem Glynn. I would then be allowed one more opportunity to finish up with my rebuttal.
Glynn attempted to persuade the judge to allow a five-minute break between Pine Island Farms’ counsel’s closing argument and his own, which she declined. She had never allowed such a thing before, and wasn’t about to start now.
The courtroom was packed with people and members of the media, complete with cameras, lights, and cables everywhere. They were all present to witness the historic outcome.
It was standing-room-only while we waited for the jury to come back into the courtroom.
David Lipman, an accomplished trial lawyer and colleague of mine, was eager to see the conclusion of the trial and he came to watch the closing arguments. He walked over to say hello minutes before I was about to start. I talked to him about the previous night’s Miami Heat game, which bewildered Lipman.
In fact, Lipman called me right after the trial expressing his awe that I could talk about a basketball game just minutes before closing such a complex case. When I am totally prepared to close a case, a certain calm comes over me.
I was ready.
This post is adapted from my book, Blindsided, which presents in great detail the case, the people involved and the groundbreaking outcome.