FINDING JUSTICE IN FICTION:
WHAT IF I HAD OBJECTED TO THE JUDGE'S QUESTIONS?
The following account is fictional. Well, sort of. I took the judge's actual questions of me and challenged the ones that I believe an attorney would have objected to in a court of law. Then, where appropriate, I had the judge re-phrase those questions. Here is what I came up with:
“Good morning, Mr. Hartwell. Have a seat over here.”
Mr. Hartwell looked directly at the judge and quietly said, “No, thank you.”
The judge sniffed and continued.
“We need to ask you some questions. It has come to my attention that for some time you have had a website.”
“That's not a question,” Mr. Hartwell replied, leaning forward ever so slightly.
The judge exhaled and said, “Very well, Mr. Hartwell. I will rephrase it for you,” with a hint of irritation. “Have you had a website for some time?”
“Yes.”
“And you have written some articles?”
“I have.”
“And I would like to ask you some questions about the articles.”
“Okay.”
“First of all, did you have any opinions of NBC Studios or GE before you came in here for this trial?”
“Compound question.”
The judge gave a blank stare. “What do you mean?”
“Well, what if I had an opinion about one and not the other? Or, if I am not sure about one? The question is awkward.”
The judge’s jaw dropped a little. “Now, Mr. Hartwell, I really don’t need---” Then he caught himself.
“Your Honor,” Hartwell intoned, as though he had found a toe hold. “One more thing. At voir dire, the questions had to do with beliefs and feelings, not opinions. You assume facts not in evidence.”
The judge noticed the Plaintiff lead attorney smirking ever so slightly in the gallery. Then he forced a thin smile. “Mr. Hartwell, thank you for your correction of my questions, Your answer?”
“I don’t recall.”
“You don’t recall the question?”
The Plaintiff lead attorney suppressed a giggle. The Defense lead attorney shot him an angry glance.
“No, I don’t recall opinions about either organization you mentioned.”
“Very well. Let me give you a quote, if I may. And I hope this is an accurate quote.
This is in an article that you wrote in May of 2005:
‘How can the corporate media (such as ABC, NBC, CBS, and Fox) miss all these stories and annoy us with phony ones. The Walt Disney Company owns ABC, Viacom owns CBS, General Electric owns NBC. The executives who make decisions on what to air receive huge tax cuts thanks to the Bush administration policies as do the corporations themselves.’
That is – it is to that that I referred.
“That sounds like one article.”
“It is.”
“May I invoke the Completeness Doctrine?”
“Whatever for?”
“If you read the rest of the article, you will read my irritation with stories that were not newsworthy.”
“The court takes your word for it.”
“Does that mean you did not read the whole article?”
The judge tugged at his robe slightly, then intoned, “I ask the questions here, Mr. Hartwell. And I guess my question is: Other than the writings that appear on your website, have you written any other articles?”
“None that I can recall.”
“Okay. Before the trial, did you have a feeling about the relationship between the government and the media other than what you have said in your articles?”
“We have only discussed one article.”
“So noted. What about the relationship?”
“A relationship. A relationship. Where, on occasions, I believe that parts of the mass media do take direction from members of the government, yes.
“Okay. Did you have any reason why you didn't reveal that on your questionnaire?”
“I can't recall any question that appeared to refer to that.”
“Okay. Let me read two, and you may be right, but let me read two of them.”
“On the questionnaire, the last two questions were:
"If you have any ethical, religious, political, or other beliefs that may prevent you from serving as a juror, explain."
And you left that blank?”
“That's correct.”
“And the next one was:
‘Is there anything not covered by this questionnaire that would affect your ability to be a fair and impartial juror?’
And you said no?”
“That's correct.”
“Okay. Then Judge Elias, in her courtroom, asked these three questions, and apparently she had given you all a description of what this case was about, correct?”
“Yes.”
And she told you who the parties were?
“Yes.”
“Okay. And then she said:
‘Having heard the description of the case, is there any member of the panel that feels that he or she cannot give either side of the parties a fair trial?’
And then she asked:
‘Does anyone have any feelings about the nature or subject matter of the case that would make it difficult for you to be a fair and impartial juror?’
And then she said:
‘Do any of you have any belief or feelings toward any of the parties, attorneys, or witnesses that might be regarded as prejudice or bias for or against any of them?’
“That's correct.”
“And you did not answer any of those questions?”
“That's correct.”
“Why not?”
“I believed then and I believe now that I could be a fair and impartial juror. I don't have ill feelings towards NBC nor towards the parties, and I understood the case to be about plaintiffs who had got involved in a contract dispute with NBC and NBC Studios.”
“Did they not mention – and again, I wasn't there, so you are going to have to help me out. Did no one mention the fact that there were allegations of fraud against NBC?”
“This was mentioned, yes.”
“Okay. That is something other than the contract.”
“Right. I understood the actions to be in the context of deliberating or deciding upon a contract or about other matters between the plaintiffs and the defendants.”
“The plaintiffs being individuals and the defendant being a corporation?”
“Misstates the evidence.”
The judge fumbled through papers and strained to see something. “How so?”
“The plaintiffs included two corporations.”
“So noted. Okay. And at no time did you feel that it was appropriate for you to tell the lawyers on both sides any of your feelings about – that you wrote about in your website?”
“What do you think I wrote on my website, Your Honor?”
The judge paused for a split second. “What I said earlier.”
“So far, we have discussed one article in which I expressed irritation about twenty months before voir dire about some crummy news stories. Is that what you mean?”
“Mr. Hartwell…” The judge thought better of it and then continued, “Okay. Now, how about the views, when you were leading the discussion or participating in the discussion, did you tell anything to the jurors about your view of corporations and how they are beholden to the government?”
“Misstates the evidence. I never said that.”
The judge rambled on. “Did you talk about anything concerning the corporations and how they favor the government, specifically the Bush administration?”
“Misstates the evidence. I never said that.”
The judge exhaled loudly. Then in a near monotone, he inquired, “So it is your belief that – or is it your belief that the views that you expressed on the website did not, in any way, impact on your vote?”
“That's correct.”
“And how about what you said to other jurors?”
“It had no impact on what I said to other jurors.”
“Okay. Then go back to my question.
When Judge Elias read those final three questions, was there a reason why you didn't raise your hand and say, in substance, ‘You know, I don't think it's going to affect my vote, but the lawyers, in fairness, ought to know that I have written these articles and here is what they say’?
Any reason why you didn't tell them that?”
“Compound question.”
“I will rephrase it. Why didn’t you tell the lawyers that you wrote these articles?”
“Misstates the evidence. We have only discussed one article.”
“Fine.” It was more of a punctuation than a statement. “Why didn’t you tell the lawyers that you wrote the article that I mentioned earlier?”
“I did not remember it.”
The judge, fiddling with his eyeglasses, dropped them.
“My question is: Didn't you feel that it would be appropriate to say to the lawyers, ‘You know, you ought to know this about me. I think I can be a fair juror, but I have written some articles that are very critical about big corporations, including NBC’?
Did you not think that might be helpful to the lawyers in deciding whether or not you should be kept as a juror?”
“Misstates the evidence. We have only discussed one article.”
“You mentioned that.”
“And the word 'very' is argumentative.”
The judge plowed on like a man trying to find his parking spot. “Did you think it might be helpful to the lawyers in deciding whether or not you should be kept as a juror to know about the article to which I referred earlier?”
“I did not remember it. I have written hundreds of articles and the period between the article in question and voir dire as I mentioned earlier was over a year and a half.”
The judge looked at Defense lead attorney and blinked. “We are going to take a short recess.” He glanced at the court liaison and said, “ Please take Mr. Hartwell back to the deliberations room.”
After the door closed, the judge sighed. He met the eyes of the Defense lead attorney again and asked him, “After what you just heard, do you still want to proceed with this motion for dismissal?”
The Defense lead attorney looked away.
“I think ---” began the Plaintiff lead attorney but the judge held up his hand.
“Save it. I know what you are going to say. I am going back to my office. I will make my decision shortly.”
The attorneys and the court reporter filed out of the chambers. The judge turned on his computer and went to Hartwell’s website. There, for the first time, he read Hartwell’s articles.
He looked for any negative articles about the media, corporations or NBC during the year 2006 or 2007 but could not find any. He also noted Hartwell’s positive reference to one of NBC’s employees in a 2006 article and his even-handed analysis of the media in another in the same time period.
The judge wrote out his response to the Motion for Dismissal and signed it. He left it on his desk with a note and then buzzed the court liaison before leaving out a back exit.
The court liaison returned to read the note:
“Motion to Dismiss Juror Hartwell denied.
I hereby recuse myself for the punitive damages phase of this trial.
I should have read his website before considering this motion.
I failed to do my homework and am retiring for good now.
Good luck with the next judge.”
The court liaison smiled as she walked toward the door to open it for the attorneys and the court reporter.
Published 7/17/22
Mr. Hartwell looked directly at the judge and quietly said, “No, thank you.”
The judge sniffed and continued.
“We need to ask you some questions. It has come to my attention that for some time you have had a website.”
“That's not a question,” Mr. Hartwell replied, leaning forward ever so slightly.
The judge exhaled and said, “Very well, Mr. Hartwell. I will rephrase it for you,” with a hint of irritation. “Have you had a website for some time?”
“Yes.”
“And you have written some articles?”
“I have.”
“And I would like to ask you some questions about the articles.”
“Okay.”
“First of all, did you have any opinions of NBC Studios or GE before you came in here for this trial?”
“Compound question.”
The judge gave a blank stare. “What do you mean?”
“Well, what if I had an opinion about one and not the other? Or, if I am not sure about one? The question is awkward.”
The judge’s jaw dropped a little. “Now, Mr. Hartwell, I really don’t need---” Then he caught himself.
“Your Honor,” Hartwell intoned, as though he had found a toe hold. “One more thing. At voir dire, the questions had to do with beliefs and feelings, not opinions. You assume facts not in evidence.”
The judge noticed the Plaintiff lead attorney smirking ever so slightly in the gallery. Then he forced a thin smile. “Mr. Hartwell, thank you for your correction of my questions, Your answer?”
“I don’t recall.”
“You don’t recall the question?”
The Plaintiff lead attorney suppressed a giggle. The Defense lead attorney shot him an angry glance.
“No, I don’t recall opinions about either organization you mentioned.”
“Very well. Let me give you a quote, if I may. And I hope this is an accurate quote.
This is in an article that you wrote in May of 2005:
‘How can the corporate media (such as ABC, NBC, CBS, and Fox) miss all these stories and annoy us with phony ones. The Walt Disney Company owns ABC, Viacom owns CBS, General Electric owns NBC. The executives who make decisions on what to air receive huge tax cuts thanks to the Bush administration policies as do the corporations themselves.’
That is – it is to that that I referred.
“That sounds like one article.”
“It is.”
“May I invoke the Completeness Doctrine?”
“Whatever for?”
“If you read the rest of the article, you will read my irritation with stories that were not newsworthy.”
“The court takes your word for it.”
“Does that mean you did not read the whole article?”
The judge tugged at his robe slightly, then intoned, “I ask the questions here, Mr. Hartwell. And I guess my question is: Other than the writings that appear on your website, have you written any other articles?”
“None that I can recall.”
“Okay. Before the trial, did you have a feeling about the relationship between the government and the media other than what you have said in your articles?”
“We have only discussed one article.”
“So noted. What about the relationship?”
“A relationship. A relationship. Where, on occasions, I believe that parts of the mass media do take direction from members of the government, yes.
“Okay. Did you have any reason why you didn't reveal that on your questionnaire?”
“I can't recall any question that appeared to refer to that.”
“Okay. Let me read two, and you may be right, but let me read two of them.”
“On the questionnaire, the last two questions were:
"If you have any ethical, religious, political, or other beliefs that may prevent you from serving as a juror, explain."
And you left that blank?”
“That's correct.”
“And the next one was:
‘Is there anything not covered by this questionnaire that would affect your ability to be a fair and impartial juror?’
And you said no?”
“That's correct.”
“Okay. Then Judge Elias, in her courtroom, asked these three questions, and apparently she had given you all a description of what this case was about, correct?”
“Yes.”
And she told you who the parties were?
“Yes.”
“Okay. And then she said:
‘Having heard the description of the case, is there any member of the panel that feels that he or she cannot give either side of the parties a fair trial?’
And then she asked:
‘Does anyone have any feelings about the nature or subject matter of the case that would make it difficult for you to be a fair and impartial juror?’
And then she said:
‘Do any of you have any belief or feelings toward any of the parties, attorneys, or witnesses that might be regarded as prejudice or bias for or against any of them?’
“That's correct.”
“And you did not answer any of those questions?”
“That's correct.”
“Why not?”
“I believed then and I believe now that I could be a fair and impartial juror. I don't have ill feelings towards NBC nor towards the parties, and I understood the case to be about plaintiffs who had got involved in a contract dispute with NBC and NBC Studios.”
“Did they not mention – and again, I wasn't there, so you are going to have to help me out. Did no one mention the fact that there were allegations of fraud against NBC?”
“This was mentioned, yes.”
“Okay. That is something other than the contract.”
“Right. I understood the actions to be in the context of deliberating or deciding upon a contract or about other matters between the plaintiffs and the defendants.”
“The plaintiffs being individuals and the defendant being a corporation?”
“Misstates the evidence.”
The judge fumbled through papers and strained to see something. “How so?”
“The plaintiffs included two corporations.”
“So noted. Okay. And at no time did you feel that it was appropriate for you to tell the lawyers on both sides any of your feelings about – that you wrote about in your website?”
“What do you think I wrote on my website, Your Honor?”
The judge paused for a split second. “What I said earlier.”
“So far, we have discussed one article in which I expressed irritation about twenty months before voir dire about some crummy news stories. Is that what you mean?”
“Mr. Hartwell…” The judge thought better of it and then continued, “Okay. Now, how about the views, when you were leading the discussion or participating in the discussion, did you tell anything to the jurors about your view of corporations and how they are beholden to the government?”
“Misstates the evidence. I never said that.”
The judge rambled on. “Did you talk about anything concerning the corporations and how they favor the government, specifically the Bush administration?”
“Misstates the evidence. I never said that.”
The judge exhaled loudly. Then in a near monotone, he inquired, “So it is your belief that – or is it your belief that the views that you expressed on the website did not, in any way, impact on your vote?”
“That's correct.”
“And how about what you said to other jurors?”
“It had no impact on what I said to other jurors.”
“Okay. Then go back to my question.
When Judge Elias read those final three questions, was there a reason why you didn't raise your hand and say, in substance, ‘You know, I don't think it's going to affect my vote, but the lawyers, in fairness, ought to know that I have written these articles and here is what they say’?
Any reason why you didn't tell them that?”
“Compound question.”
“I will rephrase it. Why didn’t you tell the lawyers that you wrote these articles?”
“Misstates the evidence. We have only discussed one article.”
“Fine.” It was more of a punctuation than a statement. “Why didn’t you tell the lawyers that you wrote the article that I mentioned earlier?”
“I did not remember it.”
The judge, fiddling with his eyeglasses, dropped them.
“My question is: Didn't you feel that it would be appropriate to say to the lawyers, ‘You know, you ought to know this about me. I think I can be a fair juror, but I have written some articles that are very critical about big corporations, including NBC’?
Did you not think that might be helpful to the lawyers in deciding whether or not you should be kept as a juror?”
“Misstates the evidence. We have only discussed one article.”
“You mentioned that.”
“And the word 'very' is argumentative.”
The judge plowed on like a man trying to find his parking spot. “Did you think it might be helpful to the lawyers in deciding whether or not you should be kept as a juror to know about the article to which I referred earlier?”
“I did not remember it. I have written hundreds of articles and the period between the article in question and voir dire as I mentioned earlier was over a year and a half.”
The judge looked at Defense lead attorney and blinked. “We are going to take a short recess.” He glanced at the court liaison and said, “ Please take Mr. Hartwell back to the deliberations room.”
After the door closed, the judge sighed. He met the eyes of the Defense lead attorney again and asked him, “After what you just heard, do you still want to proceed with this motion for dismissal?”
The Defense lead attorney looked away.
“I think ---” began the Plaintiff lead attorney but the judge held up his hand.
“Save it. I know what you are going to say. I am going back to my office. I will make my decision shortly.”
The attorneys and the court reporter filed out of the chambers. The judge turned on his computer and went to Hartwell’s website. There, for the first time, he read Hartwell’s articles.
He looked for any negative articles about the media, corporations or NBC during the year 2006 or 2007 but could not find any. He also noted Hartwell’s positive reference to one of NBC’s employees in a 2006 article and his even-handed analysis of the media in another in the same time period.
The judge wrote out his response to the Motion for Dismissal and signed it. He left it on his desk with a note and then buzzed the court liaison before leaving out a back exit.
The court liaison returned to read the note:
“Motion to Dismiss Juror Hartwell denied.
I hereby recuse myself for the punitive damages phase of this trial.
I should have read his website before considering this motion.
I failed to do my homework and am retiring for good now.
Good luck with the next judge.”
The court liaison smiled as she walked toward the door to open it for the attorneys and the court reporter.
Published 7/17/22
