Appellate squawkers are sometimes unfairly portrayed as late-rising introverts walking around mumbling “82 New York Supp Second” or “Marbury v. Madison” and looking for ways to show up trial lawyers as ineffective. Nothing could be further from the truth! Our hat is off to the lawyers who run from courtroom to courtroom loaded down with case files, expected to be in three or four places at once and dealing with crazy, mistrustful undesirables. And they also deal with clients. For all our griping about the Appellate Division, at least we don’t have to deal with people in robes on a daily basis and never have to chitchat about last night’s game or the health of their offspring, which is what you absolutely have to do in trial court if you ever want your case to be called.
But we’re true to type when it comes to nagging trial lawyers about preservation, and we don’t mean just objecting and saying why. We mean physically preserving the record.
Here’s what apparently happens after trial as soon as the defendant is hauled away to start his three consecutive life sentences:
Judge: Well, that’s that. Get rid of all those depressing photos and exhibits cluttering up my courtroom.
Prosecutor: Yes, Judge. The Salvation Army should be here to pick them up any minute.
Court reporter: What do you want me to do with all these long pieces of paper with funny symbols on them?
Judge: Oh, you mean the stenographic record? Just throw it into one of those cardboard boxes on the floor.
Clerk: Sorry, but they’re already full of back issues of TV Guide. The court file might be somewhere in there too.
Defense attorney: (to court reporter) Here, Gloria, you can put your notes in this paper bag with the leftovers from the jury’s lunch.
Court reporter: Thanks. By the way, I’m leaving town.
Defense attorney: Really? Where to?
Court reporter: Hahahahahahahah! Wouldn’t you like to know?
Years later, after a lengthy Interpol investigation, proceedings in the World Court and extraordinary rendition, Gloria is located and forced to transcribe the trial minutes. They read as follows:
Prosecutor: Officer, do you recognize what’s been marked for identification as People’s 42?
Prosecutor: Is this in sum and substance identical to People’s 39?
Cop: This part over here is different.
Prosecutor: How so?
Cop: It has more legs and less U.S. currency.
Prosecutor: Does it fairly and accurately portray that the defendant is guilty?
Defense: Objection, leading.
Court: Sustained. Rephrase the question.
Prosecutor: Based on your training and experience, does it fairly and accurately portray that the defendant is a horrible criminal?
Court: Overruled. Completes the narrative. You may answer.
Cop: Yes, except for the purple parts on the left.
Prosecutor: No further questions.
Defense: Officer, do you recognize what’s shown at the top of People’s 39?
Prosecutor: Objection! If defense counsel asks about the things at the top, he’s opening the door to testimony about the things at the bottom.
Defense: It goes to state of utterance and excited present recollection.
Court: I’ll give a curative instruction. (To jury) Ladies and gentlemen, you are not to view the things at the top with passion and prejudice nor speculate about what those things are at the bottom. Let’s take a short break while we shred the pretrial motions.