Witnesses do not Always Remember

Posted on August 21, 2009 by Tom Crane

 It is a critical thing to understand in every lawsuit.  Many people just flat do not remember what happened.  Ed Marty, the general counsel for the Court of Criminal Appeals, in the end, simply admitted that he did not remember what he told Judge Johnson.  This from a trained lawyer with many years experience.  

In one of my law school classes, a professor told a story about something another professor did once to illustrate this point.  The professor had someone come by right at the start of class and pretend to shoot the professor.  The professor falls to the floor and then quickly rises and reassures everyone he is ok.  He then asks the class to describe the shooter.  Everyone in the class had a different description.  Everyone.  Trials and lawsuits are not like on TV.  Everyone may had a different recollection about what happened.  The truth may be very elusive.  

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Splitting Hairs is not a Strong Defense

Posted on August 20, 2009 by Tom Crane

 As often happens in trials, there is substantial dispute over what happened when lawyers for Michael Richard seeking more time.  The call went to Ed Marty, general counsel for the CCA.  He has given different statements about happened.  In one account, he says he told the duty judge, Cheryl Johnson, that the lawyers called.  In other accounts, he did not tell Judge Johnson.   He appears to acknowledge that he has memory problems.  He has retired and moved to Alabama. 

Judge Keller is consistent that Marty told her they were calling for more time and she simply responded that some entity (the clerk or the court) closes at 5:00 pm.  Judge Keller's lawyer emphasizes that the lawyers could have submitted a filing to any other judge.  But, the lawyers appear to not have been aware of that.  The general counsel was apparently careful not to tell the lawyers they could file with another judge - presumably to avoid charges of favoring one side over the other.  But, like Richard's lawyers, I believe I would expect a court to tell me how to file a late, critical pleading.  I would not expect to have to ask such a routine sort of question.  

In any event, a man's life hung in the balance.  Judge Keller's defense appears to essentially be that she simply provided information, an administrative act, not judicial.  That claim does contradict her defense in the civil suit that her act was judicial (thus relying on judicial immunity).  As is true in many trials, relying on hair-splitting is not a very effective defense.  I suspect Judge Keller will get some sort of reprimand.  

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