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Bar News - October 1, 2000 Lawyer-Senators’ Reflections - A Historic Trial Through Jurors’ Eyes By: Lisa Sandford THE SENATE’S IMPEACHMENT trial of Supreme Court Chief Justice David Brock cast senators into the role of judge and jurors, forcing them to sift through the complicated legal and procedural issues surrounding an unprecedented event in the state’s history. Three New Hampshire attorneys serving in the NH Senate had the advantage of an inside understanding of the legal system to help them as jurors. They had a unique perspective on the impeachment trial, both as participants in the process and knowledgeable observers of the legal proceedings. [A fourth attorney in the Senate, Ned Gordon (R-Bristol), recused himself from the trial because he had served as law clerk to Chief Justice Brock.] “It was definitely a once-in-a-lifetime experience,” said attorney and senator Rick A. Trombly (D- Boscawen). “I would rather it hadn’t happened – I wish the state could have gone another 200 years without an impeachment trial – but I was honored to be there,” he said. In all, the trial lasted about three weeks, including pre-trial motions, testimony and deliberations. Like any other jury trial, the rules of evidence applied: witnesses were examined and cross-examined, the prosecution had to meet a burden of proof, attorney objections were made and ruled on by the bench (Senate President Beverly Hollingworth, presided over the trial as judge). The three senators who are attorneys – Trombly, Mark Fernald (D-Sharon) and Richard Russman (R-Kingston) – believe they had a slight advantage in serving on the Senate jury in that they already understood the legal issues and terminology. “It was easier for me knowing the constitutional questions, burden of proof, the purpose of direct and cross. That was helpful,” said Russman. “It was less difficult because I already understood the terms, procedures, mechanisms of how the judiciary operates,” agreed Trombly. “Other senators had to start from the ground floor on those issues.” Despite their working knowledge of the law, however, the three attorneys feel that the task of deciding such a monumental case was just as difficult for them as for any of the Senate jurors. “I don’t feel I had any particular advantage in terms of ability to look at the evidence and measure the credibility of witnesses. We all considered those things very carefully,” said Fernald. “We took an oath to judge the facts based on the evidence, just like everyone else,” said Trombly. Nor did the three attorneys feel more of a sense of “ownership” of the case because it dealt with the judiciary – which they rely on for their livelihood. “My job was to sit as a juror and reach a conclusion based on the evidence,” said Trombly. “I had no sense of ownership – I didn’t feel it was my job to root out anything or promote a particular cause in the judicial system. My role was as a senator and juror in this trial, not as a lawyer.” Fernald and Russman both voted “no” on all four articles of impeachment. Trombly voted “no” on articles 1 (Thayer case) and 3 (perjury), but voted to convict on articles 1 (Home Gas) and 4 (recusal policy).
The three attorneys prepared for the historic impeachment trial in different ways. Russman read a book on the impeachment trial of President Bill Clinton, which he said “helped a little” in shedding some light on the process.Trombly vowed to “keep an open mind” – to listen to the facts, read transcripts and carefully look at the evidence presented. Fernald said he “took pains not to prepare” by purposely not following the House impeachment proceedings in the media. “I wanted to hear the whole thing fresh, with no preconceptions, so I avoided the subject in the press,” said Fernald. None of the three attorneys had ever served on a jury before. Russman has tried a number of jury cases in his career, but Fernald and Trombly have each put a case before a jury only once. They said that serving as jurors gave them a greater appreciation for how difficult the job is. “I had a lot of respect for juries in the first place, but now I have even more having sat on one,” said Russman.
Trombly said that he now has “a greater understanding of what jurors go through,” especially in highly technical cases. “I have a brand new appreciation for sitting for three hours listening to lawyers go back and forth and hearing witnesses give conflicting testimony,” he said. “I have an incredible amount of respect not only for the jury, but also for the men and women who sit on the bench in trial courts.” The experience also gave the attorneys some pointers in terms of trial skills. “As a juror, you see the tactics and trial skills of the attorneys. I’m more aware of trial techniques, what works and what doesn’t,” said Trombly. “I think it’ll help with my trial technique.” Russman agreed. “Serving as a juror caused me to look at things differently as a lawyer – from that perspective it was a learning experience,” he said. “I got to see how other attorneys operate.” All three senators said the biggest trial tip they learned as jurors: avoid repetition. Each said they are now more aware of lawyers’ tendency to ask the same questions repeatedly in order to drive home a point or get a witness to give the exact response desired. Russman said a low point of the impeachment trial for him was listening to one attorney ask the same question “too many times.” “A juror’s job is to pull together a case like pieces of a puzzle,” said Trombly. “It’s easier for them if the attorneys lay the case out in a coherent manner, not by asking the same questions over and over,” he said. Fernald agreed. “A jury is there to listen, but you can’t make them listen,” he said. “You can make their job easier by not being too repetitive, annoying, making too many objections, arguing small points. That’ll turn them off. It’s frustrating watching lawyers fight over evidentiary issues, going over the same ground.” The three attorneys feel that NH’s first-ever impeachment trial went smoothly, even though there was no precedent on which to base management of the trial. They praised Hollingworth’s work as judge, saying she ran a “good” and “fair” trial. The senators were “attentive and thoughtful,” said Russman. “They gave a great deal of thought to what both sides had to say,” he said.
The three attorneys said that they are “relieved” that the impeachment trial is over, saying that it was “exhausting” serving on the jury while still running a law practice. “It was interesting, taxing, informative, tiring,” said Trombly. “It was unusual and difficult to sit as a juror, having never done it before, particularly in such a historic setting, under such historic circumstances,” said Russman. Fernald believes that the trial served not only to examine the actions of Chief Justice Brock, but also to educate the public about the workings of the Supreme Court, its operation and justices. He said that much of Brock’s testimony offered valuable insight into how the court operates. “For those watching, it wasn’t just a trial of fact, it was an educational process about the court in general. I appreciated what Chief Justice Brock had to say about his colleagues, the court, how it functions, the law and the constitution,” said Fernald. How the impeachment trial and the issues it brought to light will affect NH’s legal system remains to be seen. Trombly believes that the discussion it has brought about relative to the “double standard” of the application of legal standards will lead to reform. “Certain actions in the Supreme Court were dismissed as OK because nobody was hurt by them. I had a sense that those in the Supreme Court didn’t understand they were applying one standard to the legal community in New Hampshire and a different standard to themselves,” said Trombly. “The incredible double standard was disturbing. But [the trial] has gotten out a discussion that needs to be had – that legal standards applied to practitioners should be applied equally to the bench,” he said. “I think there’s a new awareness that court actions should be scrutinized, that there should be an improved complaint process for judges, and there should be a change in terms of openness in the court.” Fernald believes the issues leading up to the impeachment trial will lead to “evolution, not revolution.” He feels there will be some discussion of drastic changes to the judiciary, like setting term limits for judges or electing judges, but that actual changes will be less dramatic – such as severing the close ties between the Supreme Court and Judicial Conduct Committee. “My guess is there won’t be huge changes, but evolution,” he said. Russman said that he is concerned about what could happen to the NH legal system in the next few years. “I think we’ll be looking at a number of bills – while some may be legitimate proposals for reform, others will be perhaps Draconian,” he said. |
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