Ruminations
| Publication year | 2017 |
| Pages | 14 |
I Will Be Heard
Paul S. Gillies, Esq.
I will be as harsh as truth, and as uncompromising as justice. On this subject, I do not wish to think, or speak, or write with moderation. I am in earnest—I will not equivocate—I will not excuse—I will not retreat a single inch—and I will be heard.[1]
When I first read these words of William Lloyd Garrison, from the first issue of the Liberator, published in 1831, I was stirred. It was so direct and so determined. I could feel the passion and the commitment in those words. I wished I could be as determined.
In the life of George Whitefield, the English preacher who took America by storm on seven trips to the new world in the eighteenth century and converted tens of thousands through his sermons, he was once speaking in a church with a listless congregation. One man was asleep. His biographer relates the story:
About this time, Whitefield stopped. His face went rapidly through many changes, till it looked more like a rising thunder-cloud than any thing else; and beginning very deliberately, he said, “If I had come to speak to you in my own name, you might rest your elbows upon your knees, and your heads with your hands, and sleep; and once in a while look up and say, ‘What does the babbler talk of?’ But I have not come to you in my own name. No; I have come to you in the name of the Lord God of hosts, and—here he brought down his hand and foot at once, so as to make the whole house ring-- ‘and I must, and will be heard.’”[2]
Could Garrison have been influenced by Whitefield? Or. is this a demand that comes naturally from the deepest recesses of faith and justice?
Woodstock attorney Charles Marsh spoke with a small, almost feeble voice, so that everyone in the courtroom had to lean in to hear him. He made few gestures, and then only with the forefinger of his right hand. Yet he had a hypnotic power to persuade by the sheer force of logic and his own conviction that he was right. He could be severe. Judge Titus Hutchinson said he had the most wonderful ability to make any person appear perfectly contemptible on the stand, in only a few quiet questions on cross-examination. He also would be heard.
[A]s Mr. Marsh was addressing the jury in behalf of a client whose politics were obnoxious to the court, he admonished the jury that the presiding judge would be more likely in his charge to do what he could to secure a verdict against his client--but that they were sworn to find the facts from the evidence, and it was no part of the judge’s province to meddle with that matter in his charges -- and in that respect it was their duty to disregard what the judge might say. The judge interrupted him, calling him to account, and intimated that he would commit him for contempt. Mr. Marsh quietly turned towards him, and extending his forefinger somewhat in the direction of the judge’s nose, said in a suppressed tone—“I defy you to do it. Your honor dare not do it.” The judge quailed, and the argument proceeded.
In another instance, Marsh was interrupted by Judge Richard Skinner and admonished for being too menacing in his cross-examination of a witness. Marsh continued, and the judge interrupted him again. Marsh turned toward the bench and said, “I have made known to the court the reason of the course I am pursuing. I regard it important to the rights and interests of my client that I should be permitted to proceed. In my long experience in the courts, I think I have learned what are my rights, as well as what are my duties both towards my client and the court, and I have self-respect enough to insist on the one and perform the other, and I am in no need of being instructed by the court as to either. I will thank your honor not to interrupt me again while I am undertaking to cross-examine this witness.”[3]
We timid souls, who daily bow obsequiously before a bench, mumbling our “Your Honors” while rising with respect to the court: who among us would ever push back like that? We must have courage. We must not feint in the face of authority. We have a case to present, and a judge who gets in the way ought to be cautioned, but would you, when the moment arrived and the judge’s face turned red and steam shot from the mouth and nose? Would you stand up to that judge?
Whitefield's courage came from his mission. Garrison’s courage came from his convictions. Marsh’s courage came from his professional ethic.
In one of my first appearances at court, I saw something disturbing. Waiting our turn, I saw the lawyer in the hearing ahead of ours challenge the judge’s ruling. Evidence earned an objection. The judge sustained the objection. The opposing lawyer stood up. “I sustained the objection,” said the judge. “You are mistaken,” said the lawyer, moving out from behind the table and advancing on the bench. “The evidence is not to be admitted,” said the judge. “But it should be,” said the lawyer, attempting to explain his legal position. They went back and forth, the tension in the room rising. I saw the bailiff snap open the strap on his service revolver. Then it was over, and the courtroom never seemed so empty and quiet. That snap has stayed with me since.
This is not about contempt. It is close, but it is just below the line. We are people, you, me, and the judge. We have our court faces, and we are rarely unmasked. But there are times when the blood rises up, the injustice of a ruling pricks our usually placid demeanor, and we say something we instantly regret, or we think it anyway. Or. say it out loud with feeling on the drive home, over and over again.
Courtrooms are sinkholes of emotion for professionals. Feelings are the office of witnesses, not lawyers, nor judges. Sometimes they spill out. Standing at the window on the second floor of the Newfane courthouse, looking out on the front lawn and its magnificent trees, it was pointed out to me the spot, just down there, where two seasoned attorneys exchanged blows, while the jury in its room watched from the first floor.
There have been Vermont lawyers who fought with their clients, one who famously clocked his on the courthouse steps after a hearing. There have been incidents that planted a seed of bad feelings between a judge and a lawyer that continued for years, slowly boiling, rising up now and again but never coming to the top, their faces revealing what their words never expressed. When clients show excessive...
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