Kitsap County Juror, I Wanna Punch That Lawyer in the Nose,. . . um, That's a Mistrial

John Henry Browne

In my imagination, Kitsap, Washington must be an incredibly beautiful place.  It's one of those places in Northwest Wa near Seattle where folks live on islands and take ferrys to do their business.  In fact both the prominent Seattle lawyer, John Henry Browne, and Kitsap County Judge Theodore Spearman live on nearby Bainbridge Island.  But apparently a law degree and residence is about all they share.  Here's the Kitsap Sun's  account (by Josh Farley) of a recent case which ended when a juror was overheard uttering the desire to punch attorney Browne in the nose. Here's the story:

It's not often a lawyer is nearly sent to jail for his conduct in a Kitsap County courtroom.  Then again, it's also rare for an attorney to accuse a judge of being incompetent during a trial.

But that's what happened this week when John Henry Browne, a prominent Seattle defense attorney representing a man accused of drug crimes, called into question Kitsap County Superior Court Judge Theodore Spearman's ability to administer a fair trial. [The judge fined Browne $500 twice during the trial and threatened to jail him.]

In the end, Browne, who had repeatedly asked for a mistrial, refused to go forward with defending his client on ethical grounds. He said the judge's rulings called into question his mental state.

"I do believe that the legal community in Kitsap County knows he has cognitive deficits," said Browne, whose high-profile cases include defending Colton Harris-Moore, the so-called "Barefoot Bandit."

Browne said he will appeal the fines and file a complaint with the Washington State Commission on Judicial Conduct. He will also have to return to Port Orchard this month to appear before Spearman to answer for his own conduct.

According to court clerk records and observers in the courtroom, Browne disobeyed Spearman's orders, giving the judge no choice but to discipline him.

Judge Spearman

Kitsap County Prosecutor Russ Hauge declined to comment on Browne's actions, but said prosecutors will request that Browne be ordered to pay for the cost of retrying the case, because it was his "intentional conduct" that spurred the mistrial.

Hauge said Spearman has suffered recent health problems, including a heart attack in October 2008 that sidelined him from the bench, but they did not interfere with his abilities on the bench. He called the judge, who has been a member of the superior court bench since 2004, "an extraordinarily well experienced lawyer." [ . . . ]

Browne was defending Dominic Briceno, who had been accused by county prosecutors of six drug-related felonies before trial, including the rare charge of leading organized crime. Briceno had been arrested in December 2009 at the Suquamish Clearwater Casino [ . . .]
Spearman had fined Browne before the recess for failing to abide by an earlier motion to keep objections to a single word. In order to avoid [speeches], Spearman had ordered Browne and deputy prosecutor Alexis Foster to ask that jurors be excused before any lengthy discussions.When the trial resumed Tuesday, the courtroom got even more contentious. About an hour into Tuesday's proceedings, Foster objected to Browne's "ongoing speaking objections" and asked that he be penalized, according to court records. Browne was fined another $500.

At that point, Browne declared he could not effectively represent his client and that "he no longer wants to participate in this trial," according to court records.

Spearman gave Browne a day to think about how he wanted to proceed.

On Wednesday, Browne filed a document called a "memorandum regarding judicial conduct." In the brief, Browne asserted that various rulings Spearman made throughout the trial violated Briceno's constitutional rights, and that the "court's misapprehension and misapplication of the law — always in favor of the state — demonstrates the court's incompetence to preside over (the) trial."

Browne contended Spearman had interfered with his client's right to a fair trial by, among other things, failing "to even consider the defense argument" and those decisions "thus call the court's faithfulness to the law and professional competence into serious question."

Browne ultimately asked for Spearman to recuse himself [ . . . ]

Browne again told Spearman he would not continue arguing the case and he was refusing to participate. Spearman was inclined at that point to call for a mistrial due to defense counsel "behaving improperly" and "obstructing justice," the clerk's notes say.

Foster, however, believed then a mistrial could be avoided and recommended finding Browne in contempt — and also holding him in custody until Thursday.

At that point, Browne brought forth his own counsel — longtime Port Orchard attorney Roger Hunko — to defend him.

Ultimately, Spearman didn't believe jailing Browne for the night would "change his behavior." But Browne's position about the judge's handling of the case wouldn't change either. He opted for a recess to consider what to do.

But in the end, it was an offhand comment by a juror during that recess that forced a mistrial.

Though the jury had been advised not to discuss or comment on the case, the bailiff informed the court she had overheard a juror, outside the jury box, express a desire to "punch that defense attorney in the nose," according to courtroom observers.

Spearman declared that Browne's behavior had "thwarted" the administration of justice, creating an "incurable prejudice," the clerk's notes said.
____________________________________
This is about as over-the-top trial conduct as you are going to see outside of maybe NYC or Boston (okay, maybe Orlando.)  And the story is nicely laid out by the Kitsap Sun reporter who is clearly not a lawyer.  While the behavior of lawyer Browne will probably cost him a major disciplinary hit, what may not be apparent from the story is what happened in chambers and in pretrial proceedings.  Clearly, Mr. Browne feeling the way he felt about the Judge should have withdrawn prior to mid-trial, but it's possible, maybe even likely that there is a whole story underlying the story. 

We'll keep an eye on it.