by Scott C. McKee
Playwrights love to show us courtroom drama — tearful confessions from the dock, excited outbursts and frequent gaveling. But in truth there’s usually not so much in the way of theater. A lot of what goes on in front of the bench, people don’t even recognize, since it’s technical, and besides, they’re usually preoccupied with their own reasons for being at the courthouse.
I don’t have a lot of war stories of my own. I was better suited to the contemplative life of appellate work than the active life of the trial lawyer. Plus, one of the first things I was taught was to keep my client away from the courthouse — off the killing ground — because you just never know what can happen there. I was a defendant’s attorney by nature, and that helps to explain how I came to municipal law in the first place. Cities have always tended to see the world in that same way: we like to find out what the other party is going to say before we open our mouths.
Municipal corporations stray from the defendant mindset in one important way, though. They make laws that people are expected to obey. Because of this, working for a city gives you the chance to be a prosecutor once in a while. Workloads vary, lawyers call in sick, a docket needs to be covered. So some days you argue about the same big constitutional issues that they do on TV — search and seizure, right to counsel, I had something like an 8th Amendment case once. But you’re playing for smaller stakes. No serial killer will be set free if you miss an objection, no one will spend more than a night in jail if you win, and there are usually no reporters waiting on the steps outside.
So it happens that one day I am at the Bellevue District Court for the Infractions Calendar, the lowest-stakes game of all. Now, when I was a kid, a law was a law and if you broke it you were a criminal; but that setup generates a lot of paperwork and keeps some very expensive people sitting around, so the fashion has been to “decriminalize” popular offenses. Drive too fast today and you find yourself committing not a crime but an “infraction,” for which a civil penalty is assessed. You still get a chance to have a judge yell at you if you like. But you can also simply pay your penalty, or you can admit that you’ve done wrong and ask for a reduction in the fine, or you can have a little mini-trial — and you don’t even have to choose until they call your name.
In our cozy little bailiwick, jurisprudence varied widely. One of the two District Court judges, Brian Gain, himself a City Hall alumnus, was content to handle this whole procedure without a prosecutor present. Truth is, some of these hearings are pretty lonesome, since the case is usually submitted on the basis of the notes written by the issuing officer, himself unlikely to attend unless requested by the defendant. Judge Gain would take a stack of tickets (if you want to call them that) and a room full of respondents and get through a docket without troubling anybody else.
Melvin Love, a former mayor, by this time retired and a judge pro-tem, had a slightly different approach to the docket. His Honor would ask for the stack of tickets, look through the different charges, re-shuffle the papers to his liking, and hand them back. Those who needed his wisdom the most would find themselves at the end of the calendar, so that they might benefit from the lessons handed out to each of the other offenders in turn. Judge Love liked to have a prosecutor present, so even though he did not appear often, I had the opportunity to sit through his entire traffic-school curriculum a number of times during my career.
The judge most keen on decorum was the other regular District Court judge, Joel Rindal, a short, lively, distinguished-looking gentleman. He was popular with our defendants but thought by my office to lack the proper regard for the City’s authority to define offenses, and unduly skeptical of our ability to prove them. One of my colleagues said that she enjoyed sparring with him, but that certainly wasn’t my role. If I was before him, it was because I had been called away from my real job (forcing land owners to accept large sums of money in exchange for small bits of their property). Trial work calls for an evidentiary fire-horse, not a snappy dresser. Another jurist might have been condescending to an attorney in my position, but Judge Rindal, to his credit, made allowance for my inexperience instead. In this scene I was just a spear-carrier, but, if I did happen to speak a line correctly, we would smile and pretend that I knew what I was doing. It was Rindal who was presiding on the date in question.
So this was a fairly typical day and we had already heard many of the standard excuses: a borrowed car, wallet in other trousers, the light changed just as I got to the intersection, etc. Rindal calls a case, I announce that the City is submitting on the basis of the officer’s notes, judgment is rendered. Lather, rinse, repeat.
And then this. A guy mounts the witness stand, listens to an account of how, on a certain date and at a certain time, a car driven by him was, with the aid of a radar device, observed to be travelling at a certain rate of speed; and that said rate was in excess of the lawful posted limit.
The guy starts talking. There is mild suspense while he works around to his car and then his tires. This is the point at which an imaginary statistician would put a check mark in the column headed “Snow Tire Defense.” Preparing for winter travel across the mountains, didn’t want to risk the same trouble as last time, salesperson said that a driver would be happier with these monster treads; defendant didn’t realize how much bigger the new tires were, didn’t consider the effect on his speedometer, variation on an old theme.
Except that, still talking, he is now also pointing toward the back of the courtroom. There, leaning against the wall, beyond the rows of benches dotted with other defendants and their buddies, he has brought, he says, one of the tires as proof. A dozen or two of us, at much the same time, turn, with varying degrees of curiosity and incredulity, to look.
Now this is actually a pretty good punch line in itself, and we could stop here. Sure, this is back in the ’80s, before there are metal detectors or searches or security of any kind really. Still, though, sometime after the end of the morning session, and before the call to order at 1:30, this guy has rolled this big, black, not-at-all-new tire, mounted on a rim for verisimilitude, through the front door, then thirty feet down the hall, into the courtroom and all the way to the back, with nobody noticing. And, though there was nothing called an SUV in those days, cars still tended to be pretty hefty. And don’t forget, this tire needed to be larger than normal in order for his story to make sense.
On the stand, the guy is going on about how he didn’t realize, or had forgotten, how much his speedometer reading would be affected, what a surprise it had been when he was stopped, etc. I am enjoying the story as much as anyone, wondering why he didn’t just bring the receipt from the tire store or a note from his mechanic, either of those being above and beyond normal defendant behavior. Is this supposed to be his spare? Is his car out in the parking lot now, propped up on a jack? It’s the City’s right to cross examine him, if I want to.
But another idea has begun to take shape in my mind. Without waiting for a proper pause I lean forward and say, “Your Honor, it seems to me that we are hearing quite a bit about this tire. . . ”
“Counsel, I wonder if we could defer this question for a moment.” The judge is way ahead of me, but that doesn’t by itself seem to make him happy. There is a note in his voice that I don’t recognize.
I lean back and pretend to relax. The judge is still looking at me, but I am looking now at the court clerk, an attractive young woman, like the others who serve the court in this capacity. Friendly and deferential in performing their duties, if encountered outside office hours they might smile and nod but decline to speak, being careful to avoid the least appearance of impropriety. Offering to buy one of them a drink would get you nowhere.
The clerk is standing, looking at the judge. Her expression is one of optimistic denial, like those probably seen aboard the Titanic early on. Iceberg? You probably get those a lot, right? We were having such a good time just a moment ago. We will be again soon, won’t we?
The problem for the clerk is this: in our little suburban temple of justice, really part of a converted elementary school, the term “Evidence Room” is just legalese for “coat closet.” This space is on the other side of the wall just behind her. I think that they may keep some office supplies in there too, like the staple-puller I’m sometimes allowed to use. I’ve never been inside, but I now visualize the tire there, leaning up against a wall, taking up about one-sixth of the usable floor space.
The judge is still looking in my direction but a hand has appeared above the bench to support his tired brow. The problem for the judge is that he wants to offer salvation to the defendant, who is not just a busy citizen but a voter as well. However, the judge has seen that for once there will be a cost.
Where lies culpability? In earlier times no deed would be punished absent a finding of evil intent. Though we were presumed to know the law, it was admitted that we might not know all the facts. As long as we tried our best, we could hardly be blamed.
But even where good souls could be winnowed from the bad, negligence remained a problem, and the law began to discourage carelessness too. The notion of strict liability arose. It is the baker’s duty to assure that there are twelve in a dozen; that’s how there got to be thirteen. If the police stop you with your neighbor’s first-grader in your trunk, you have some explaining to do: perhaps the tyke has stowed away. If they find you with an equal volume of cocaine, no explanation is necessary. The law demands that you check your car for controlled substances before motoring about. Kidnapping requires intent. Possession does not.
My sardonic smile outlines the City’s theory of the case for the judge. Excessive speed is a strict liability offense. We have objective evidence of its commission, we have the defendant’s admission that, due to his own actions, he did not know his speed. If the court agrees with us, then The Tire, of dubious provenance anyway, is irrelevant as well and not admissible as evidence. The Tire will walk, even if its owner does not.
On the other hand, a court willing to admit such evidence will have to find a place to put it, at least for a while. I begin to wonder about the appeal process. The judge waits for the defendant to wind down, and then says, adagio, “I will ask the Clerk to mark the tire as Exhibit 1.”
As I think back on it now, I know that my recollection of the next scene is faulty, because I see it from the viewpoint of The Tire, not the counsel table. The clerk turns from the judge and walks out among the benches, unfamiliar territory for her. On this trip she just affixes a tag, postponing retrieval for a later time. I imagine that she is able to do this without getting road dirt on her hands, though not without bending awkwardly, creating the sort of physical tension that would interest a painter or a sculptor. I also think that she will never speak to me again.
As for the rest of the crowd, like I say, it’s a cinch that none of them had any idea what was going on. It’s the opposite of dramatic irony: the players possess the facts and the audience does not. “Tires? Oh, they get those all the time. I saw a really big one once.”