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I have observed and participated in clinical trials all over the world. I have seen justice and injustice in China, Russia, Ukraine, England, France, Italy, Israel, and nearly 40 of the 50 states.
But in my 60 years as a lawyer and law professor, I have never seen anything like what I observed yesterday while sitting in the front row of the courtroom.
The judge in Donald Trump’s trial appeared to the jury like a benevolent tyrant, but he was an absolute tyrant. He seemed to automatically rule against the defendant at every turn.
Many experienced lawyers raised eyebrows when the judge excluded clearly relevant evidence presented by the defense and included irrelevant evidence presented by the prosecution.
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But the court was furious when the defense’s only substantive witness, experienced attorney Robert Costello, raised eyebrows at one of New York State Supreme Court Justice Juan Marchan’s rulings.
Losing his cool and becoming nervous, the judge ordered everyone, including the media, to leave the courtroom.
For some reason I was allowed to stay, but I observed one of the most glaring false biases I’ve ever seen. In fact, the judge threatened to quash all of Costello’s testimony if he raised his eyebrows again.
Of course, this would be unconstitutional because it would deny the defendant’s Sixth Amendment right to confront and present arguments against witnesses.
It would punish the defendant for what the witness is accused of doing.
Even if Costello’s actions were wrong, and they were not, it would be entirely inappropriate and illegal to attack his testimony, the government’s star witness, with damaging and contradictory testimony.
The judge’s intimidation was completely outrageous, unethical, illegal and frivolous.
Furthermore, his demeanor when issuing that unconstitutional threat revealed his utter disdain for the defense attorney and those who testified on behalf of the defendant.
The public was supposed to be able to watch the judge’s trial, but since the case is not shown on television, the public has to rely on biased reporting from partisan journalists.
However, as the judge left the courtroom, the public was not even given the opportunity to listen to the journalists who watched the judge’s trial.
I was one of the few witnesses to his inappropriate behavior and was left to observe his profound failings.
Even when journalists report on court proceedings, their accounts should be taken with a grain of salt. When you watch CNN or his MSNBC, you usually see transcripts of trials that never took place.
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They spin events so arbitrarily that reality becomes completely distorted.
Yesterday I experienced that distortion firsthand. That’s when I saw one of my former students and research assistants, a CNN legal analyst named Norman Eisen, during a break and went up to him and asked him about his family. We chatted very friendly for a few minutes.
However, NBC, the Daily Beast, and other media outlets decided to fabricate stories about this event. They claimed that I had not had a friendly conversation with a former student, but had argued with a nemesis. Although their explanation was a fabrication, it was spread through the media.
To his credit, Eisen wrote to the media to correct this statement and said the person sitting next to him confirms the media’s incorrect reporting. I don’t think we’ll see a retraction.
This small incident is just the tip of a very large and deep iceberg regarding the trial that is only possible because the trial is not televised.
There are television cameras in the courtroom that record and transmit every word, but they are not available to the public. Only selected reporters in the overflow room can see what the cameras transmit.
There is no good reason why such an important trial, or any trial for that matter, should not be broadcast live in real time. Making the courtroom visible to the public is the best way to ensure fairness. As Justice Louis Brandeis wisely said a century ago, “Sunlight is the best disinfectant.”
When I was a kid growing up in Brooklyn, I used to listen to Red Barber’s colorful commentary on Dodgers games on the radio.
Sometimes, when I go to a game with my portable radio, I can hear “the old redhead,” as we call him, describing and exaggerating in colorful detail what’s happening on the field. I did.
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When television came along and everyone could watch matches live, records became much more accurate because they could see everything with their own eyes.
A similar phenomenon would occur if the trial were televised. That would force commentators to tell only the truth.
Today, there are no mechanisms to control partisan coverage of the trial, and exaggeration and personal opinion are rampant.
The American people are the losers.