The Bizarre Ritual that is the American Courtroom

This will make the second time that I’ve gotten into a shouting match with a prosecutor with a District Attorney’s office.

Today, on the third (!!) day of trial, I approached Travis Colby, the new senior prosecutor at the Merced County District Attorney’s Office assigned to the case of Alexandra Paul (my client) and Alicia Santurio (not my client but friend) with what felt like a routine request: give us your list of witnesses. Knowing who the prosecution’s witnesses will be is crucial to the provision of an effective defense. It’s virtually impossible to do the research and preparation necessary for so-called cross-examination — where we try to poke holes in the stories of the prosecution witnesses — without knowing who they might call.

Failure to disclose such a list, moreover, is a violation of state law. So I did my duty as a defense lawyer: I indicated to them that they should inform me who they were planning to call. And Mr. Colby, much to my surprise, took extreme umbrage to my request. The resulting verbal fracas ended with back and forth allegations of violations of bar rules. It reminded me of something that my first boss as a litigator told me many years ago: you don’t have to hate the attorneys you’re going up against, but it sure helps!

I am, of course, kidding about hating Mr. Colby. He and his office’s conduct is highly unethical, but I place the most blame on the party with the most power: the elected District Attorney, Nicole Silveira. Sileveira, who won an unexpected victory against Kimberly Lewis for her office, was boosted in part by a damning report against Lewis and the Merced County DA by the American Civil Liberties Union, which accused Lewis of a pattern of abuse and discriminatory conduct. “Although DA Lewis campaigned on bringing “change” to the Merced County DA’s Office, this report finds that the internal policies and practices that have historically driven over-criminalization, extreme sentencing, and racial disparities have largely remained unchanged,” the ACLU wrote.

Silveira campaigned on a promise of reform, but what’s clear from this case is that nothing, in fact, has changed. The political system continues to benefit the most powerful corporations, while running roughshod over ordinary people. Indeed, petty theft, the offense that Alexandra and Alicia are charged with, is one of the exact offenses that the Merced County DA has been accused by the ACLU of over-charging. Perhaps Silveira should re-read the report — and ask if she is likely to survive, politically, by continuing to waste immense taxpayer resources pursuing innocent women who were merely trying to aid sick animals abused by Foster Farms.

As disturbing as Silveria’s actions are, however, there is something inspiring beginning to unfold in the courthouse where she typically reigns supreme: a rising tide of compassion. Despite the prosecution’s objections and efforts to gag the defense, my co-counsel Kevin Little did an extraordinary job today of helping the jury see this case for what it is: prosecutorial overreach driven by corporate power. We spent most of the day engaged in what is called “voir dire,” the public examination of jurors for any evidence of “bias.” But what came out even more than the biases of jurors was their integrity and compassion. So many stood up, and even without realizing the full facts of our case, noted that there is a difference between theft and rescue.

“Can you think of any reason someone accused of theft might not be guilty of the crime?” I asked the jury, after reading them the “jury instructions” on theft.

And, much to my surprise, the jury immediately captured the true story of what’s unfolding in this case: a rescue, not a theft.

“I don’t think these corporations treat the animals like anything of value,” one juror said. “The conditions are inhumane.”

It’s still early to say how things will evolve. And there are large obstacles in this case that were not present for the Smithfield trial in Utah. But the first few days have reinforced in me the power of the courtroom, and of sacrifice. While jurors were initially puzzled by the case — and annoyed at both the prosecution and defense for the waste of their time — I am already sensing a shift in their mood. One juror noted this shift herself.

“I felt the same way as other people at first. All this time and money for two chickens! But then I thought, what if I was accused of something I felt I didn’t do? I’d want to take a stand.”

And, indeed, that is what will happen in the next week.

Through all the bizarre and random events of the last few days — a woman barricaded in the bathroom and arrested, booming sounds and screams from the other side of the courthouse walls — that is what I believe will come through most strongly in this trial. People taking a stand for what’s right.

And while our adversary is a daunting one — tomorrow, we will go head to head with Foster Farms attorneys, as we attempt to initiate contempt proceedings against them for hiding evidence of disease in their flocks — with the support of people across the world, I believe we can win.

Follow the trial on Twitter here. And contact Merced District Attorney Nicole Silveira and ask her to prosecute Foster Farms, not animal rescuers.

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Call: (209)-385-7381