Generally when a trial gets underway, there is one judge who sets the ground rules, oversees the juror-selection process, rules on motions and generally keeps things moving along. It is the judge who largely acts as the trial’s referee. And one thing all litigants know: Don’t irritate the referee. It can make your case infinitely more difficult.
Judge Edward Nottingham is the referee in this case. Appointed by former President George H.W. Bush, he has been on the bench for almost 18 years. He is the one who questioned jurors during the selection process, set the rules for lawyers on both sides, determined the length of each session of court (the first day went from 8:30 a.m. until 5:40 p.m.) and ruled on all disputes raised by the lawyers. He has kept the trial moving at a quick pace.
This case is unusual, however, because, in addition to Judge Nottingham, there are two additional judges in the courtroom. They include Herbert Stern, lead counsel for the defendant, Joe Nacchio, and Cliff Stricklin, lead counsel for the government. Stern was appointed a federal judge in 1974, serving for 13 years before stepping down to return to private practice. Stricklin was elected a state judge in Texas in 2000, serving until losing a re-election bid four years later.
So what’s it like having three judges in the courtroom? Complicated. Stern has had a hard time leaving his judicial disposition at the courtroom door. He has clashed repeatedly with Nottingham over relatively minor matters, once objecting to the method of challenging a juror for cause, another time over the order established by Nottingham for deciding motions. On one occasion, Stern was instructed that the practice in Nottingham’s court was to rise when making an objection.
Probably the worst faux pas occurred on the first day of trial, when Stern and his team returned from a break late, leaving the court and, more particularly, Nottingham impatiently waiting. It is a cardinal rule that the presiding judge may arrive late but never the lawyers.
Nottingham has had little patience with the interactions. He has often overruled Stern, typically in an admonishing or elevated tone. Once, Nottingham told Stern to stop making faces, an unflattering description in front of the jury.
What about Stricklin? He participated in the jury selection and engaged in direct examination of one of the witnesses without earning the ire of Nottingham (although one of his lawyers did try to raise an objection that Nottingham described as “thumb-sucking”). Stricklin managed to conduct his direct examination and raise objections to Stern’s questioning of the same witness with little interruption or expression of annoyance from Nottingham. He came back from breaks on time, rose when making objections and drew far fewer objections to his courtroom approach.
Has it affected the trial? Stern has irritated the referee more than once and on Thursday of last week had a very tough day. In examining a witness, he was interrupted often, affecting the flow of his questioning, and was twice denied an opportunity to regroup by taking a break. Outside of the presence of the jury, Nottingham complained that the trial was moving too slowly and that this was primarily the responsibility of the defendants.
So, after the first week of trial, what can we say about having three judges in the courtroom? What Stricklin knows and Stern is only learning: that in Nottingham’s courtroom, there’s only one judge.
