As I pointed out in a previous post Scott Yeager’s attorney, Tony Canales, is an astonishingly good, brilliant attorney. He will use whatever tools he has at his disposal to get his point across. Often it is humor; some of his lines are laugh out loud funny. But he is also not afraid to be loud, obnoxious, forceful, in-your-face, relentless, and definitely Alpha. In other words, he is my ideal man.
It was Tony Canales who flushed out the truth about the Shelby 2 video – that it was NOT played during the 2000 Analyst Conference. And man oh man, was it fun to watch. He was unstoppable. Even Judge Gilmore tried to tangle with him and he put her in her place. The lesson is clear: you do not trifle with Tony Canales. Ever. You will lose.
On April 19, 2005, Tony Canales began his crossexamination of Ken Rice. The day started out with a jocular enough tone:
Mr. Canales: Your Honor, the court reporter has instructed me to slow down once in a while. So, if I look at her, she’s going to give me a frown, I’m going to slow down.
The Court: Don’t give her the evil eye, now.
Mr. Canales: Only if absolutely necessary.
A little friendly back and forth with the judge is never a bad thing. So Canales starts in with Rice. He’s very polite,
everything is ordinary. He gets Ken to talk about how he was out of the office a few days before the Analyst Conference due to a cold. It’s always the innocuous stuff with Tony Canales. He never starts crap over nuclear issues, he goes for the small stuff, and then completely screws up your day, like this:
Q Would you agree with me then, sir — let’s look at the big map — at the big calendar — that if you missed the 9th, 10th, 11th, you’re saying in the e-mail on the 13th that you were rejoining from the world — you know, coming back to the world of the living, you were out at least since the 9th to the 13th?
A That’s probably true.
Q Now, you — did you intend, sir, to leave the impression with this jury that, at some point in time before the
Analysts’ Conference, you met with Scott Yeager to conspire and plan and confederate and every other adjective for the Analysts’ Conference? Is that the impression you’re trying to leave with this jury?
MR. CAMPBELL: Objection to form, Your Honor.
THE COURT: Objection sustained.
Q Sir, did you meet with Scott Yeager on the 9th?
Q On the 10th?
Q On the 11th?
Q On the 12th?
Q On the 13th?
A I don’t think so.
Q You don’t think so?
A I don’t remember everything I did on the 13th.
Q But you have talked — have you not, sir, testified for three days before this jury date, time, location to
Mr. Campbell’s questions because you knew exactly what you were — where you were and who you met with? Did you not do that earlier?
MR. CAMPBELL: Objection.
THE COURT: Objection sustained. First of all, that isn’t even true, Mr. Canales, so come on now.
MR. CANALES: Sure it’s true, Judge. He testified to –
THE COURT: Objection is sustained. I said stop it. It’s not true. Ask another question.
MR. CANALES: I believe it’s true, Judge.
THE COURT: You know what, leave, because this lawyer, obviously, needs some talking to.
THE COURT SECURITY OFFICER: All rise.
THE COURT: Go on out, please.
(The jury begins to leave the courtroom.)
THE COURT: I am not going to argue with you in this courtroom, Mr. Canales. If I make an objection — if an
objection is made and I sustain it, that means stop talking.
MR. CANALES: And I will. And I will but you cannot tell that what I said wasn’t true. You’re attacking me,
Judge. You said –
THE COURT: First of all, it’s not true because you can’t just sit up here and say this is what you did all during the trial. That’s not true. Now, you –
MR. CANALES: Yes, it is.
THE COURT: Stop it. Just cut it out. That is not going to be happening in here. I’m not going to argue with
you. If I make a ruling, that is it. I’m not arguing with lawyers.
MR. CANALES: And I accept the Court’s ruling. I do not accept the Court telling me that I did something that was
not true. That, I do not accept.
THE COURT: I said that what you said about this witness’s testimony was incorrect, and that is not true.
MR. CANALES: Well, that’s the way I took it, Your Honor.
THE COURT: Well, if the objection is sustained, that means that’s it.
MR. CANALES: And I accept it. But I do not accept the Court saying that I said something that wasn’t true. That’s why I objected.
THE COURT: You know what, that’s just too bad for you. Go to lunch and see if you can get your attitude together over the lunch break.
MR. CANALES: I — yes, ma’am.
THE COURT: Get out of here. Go. Get out of my courtroom. We’re at lunch. You-all be back at –
MR. CANALES: What time do you want me back?
THE COURT: — 1:35 this afternoon.
Something else happened in this transaction that you probably didn’t notice. In the official record, in a pre-trial conference, one of the attorneys (I believe it was Zimmerman but I may be mistaken) made the grave error of calling Judge Gilmore “ma’am.”
“Don’t ma’am me,” Judge Gilmore snapped. “I hate that. I won’t have it in my court room.”
Nobody called her “ma’am” again until this point when Tony Canales sneaked in a brilliant passive-aggressive “ma’am”. But it gets even better.
During lunch, the attorneys huddled over the fact that Gilmore had admonished Canales in front of the jury, just as they were getting up to leave. So naturally, they had something to say about it after the recess. Gilmore doesn’t sound very judge-like here. I love this exchange with all the attorneys being so polite and she’s just losing her mind.
[Mr. Sepenuk represents Joe Hirko]
MR. SEPENUK: Good afternoon, Your Honor. Your Honor, on behalf of Mr. Hirko, as the old guy member of the team, I would respectfully move, Your Honor, for a severance of the case regarding Mr. Hirko.
My reason for asking that, Your Honor, is this. Mr. Rice is the pivotal, crucial witness against
Mr. Hirko. When Your Honor engaged in the colloquy with Mr. Canales –
THE COURT: You mean when he was screaming at me?
MR. SEPENUK: Well, I believe that’s the one, Your Honor. And when you admonished Mr. Canales and actually told Mr. Canales that he had improperly characterized Mr. Rice’s testimony, I think Your Honor’s words were, “You’re not telling the truth, Mr. Canales.” You did that, Your Honor, I respectfully note, in the presence of the jury. You did it not once. You did it twice. You had asked the jury, I think very properly, to file out, but while the jury was just beginning to file out, Your Honor, you made the comment again to Mr. Canales that Mr. Canales was not telling the truth. That, Your Honor, I believe –
THE COURT: I did not say — use those words.
MR. SEPENUK: Well, that’s my recollection, Your Honor. And I apologize to Your Honor if I have improperly characterized it.
THE COURT: That’s not what I said. You know that’s not what I said.
MR. SEPENUK: Well, that — Honestly, Your Honor, that’s the way I heard it. I think what’s happened is that you have –
THE COURT: Okay.
MR. SEPENUK: — I’m sure inadvertently, bolstered Mr. Rice’s credibility.
THE COURT: No. I haven’t bolstered anybody’s credibility. The issue had to do with the objection of whether or not Mr. Canales was improperly characterizing earlier statements that “every single time, every single date, that he asked you about” — “every time, every date, every place, you got exactly right.” Well, that just wasn’t correct.
The objection was sustained because the witness forgot some stuff before, remembered some things, remembered some things accurately, remembered some things inaccurately. It just wasn’t correct that every single time he got the exact date, time and place correct on every single question. It just wasn’t true, which is exactly what the question was. In any event, let me cut it short for you. Your request for a mistrial is denied.
MR. SEPENUK: Your Honor, just one more moment. Needless to say, I know you’ll squash me like a bug if I argue with you, and I don’t intend to do that, truly.
THE COURT: Are you still on the motion for mistrial that I’ve already ruled on?
MR. SEPENUK: Actually, the motion was for a severance. If you deny the motion for severance, Your Honor, then we would ask for a mistrial –
THE COURT: Okay.
MR. SEPENUK: — based on what I’ve previously stated.
THE COURT: No severance. No mistrial.
MR. SEPENUK: And then, finally, Your Honor, very, very respectfully, we would ask the Court to let the jury
know that it’s the duty of counsel to present evidence on behalf of their client, have colloquies with the Court on disputed issues –
THE COURT: It’s not the duty of counsel to scream and holler at the Court. I’m not putting up with that.
MR. SEPENUK: Your Honor, could you at least tell –
THE COURT: In this day and age, with what’s been going on with judges recently, judges do not have to put up with lawyers that are openly hostile to them. That’s why we’re not having any podium in here from now on. Y’all can
question from your seats. I don’t want any lawyers that are that openly hostile that close to me, the witness or my jury.
[NOTE: She enforced this new question-from-your-seats rule for about a day before she gave up trying to enforce it. It was silly. How do you pass exhibits to the witness from your seat? Even Gilmore eventually saw the stupidity of that ruling. ]
MR. SEPENUK: May I make one final, respectful request that you tell the jury that nothing you said to Mr. Canales or, indeed, to any lawyer in the case is meant to reflect your opinion of any issue in the case or your opinion with respect to the credibility of any witness?
THE COURT: I’ll do that at the end of the case.
MR. SEPENUK: Thank you, Your Honor.
MR. TOMKO: We join that motion, Your Honor, for Mr. Shelby.
THE COURT: No need to stand up just to say “Amen”.
MR. LAVINE: Your Honor, on behalf of Mr. Howard, we join the motion for mistrial, but we’d like to put on the record that there is a different basis, that the prejudice from the exchange between the Court and Mr. Yeager’s counsel would flow to Mr. Howard, and we’d move for mistrial on that basis.
THE COURT: Okay. So, that means that anytime a lawyers decides that they — things aren’t going too well for them they just start standing up and screaming and hollering at the Court and then everybody stands up and says, “Oh, my God. We need a severance because somebody has been screaming and hollering at the Judge and that’s going to reflect poorly on all of us”? That’s a good tactic. Your request is denied.
MR. LAVINE: We move for a severance, in the alternative, based on that.
THE COURT: Denied.
MR. LAVINE: Same basis, Your Honor. In addition to the request for jury instructions that Mr. Hirko’s counsel has asked for, we would ask that the Court instruct the jury that they are the exclusive finder of fact as to what the witness –
THE COURT: I’ll tell you what. Why don’t you guys submit what you want for the jury instructions at the appropriate time, and I will definitely look at every single thing that you give me.
MR. LAVINE: We would ask that those instructions be given to the jury now, Your Honor.
THE COURT: I’m going to do it at the end of the case.
MR. CAMPBELL: Can I ask one question, Your Honor? It’s merely procedural. Would you like us to object from — sitting down or do you want us to stand up for objections?
THE COURT: You need to stand up for objections. Otherwise, I won’t even know who it is.
MR. CAMPBELL: That’s — I thought it would be easier to hear if we stand up.
THE COURT: But everybody can question from their seats. This is not a day and age where courts have to put up with hostility from people in the courtroom and where anybody should have to, and I’m not going to. Go get the jury.
Campbell is such a toadie. In any case, Canales wasn’t through. Oh heavens no. His next “fuck you” to the judge came that same afternoon. There has been a lot of quiet talk about Gilmore’s racial prejudices, her general dislike for “rich white guys” and I think Tony Canales was picking up on that, and giving it back to the judge, not necessarily Ken Rice, when the following exchange took place:
Q. Did you confer with anybody – anybody – as to whether or not at that 2000 Analyst Conference Shelby 2 was played?
A. I talked to my lawyer, Mr. Dolan, and he doesn’t — he told me he doesn’t know more than I do.
Q. He was no help to you?
A. All that money. No.
Q. Maybe a cheap Mexican lawyer could help you out.
A. I didn’t hear you.
Mr. Canales: Forgive me, Your Honor, for that.
Well, we must give credit to Ken Rice – that was a cute comment. But wow, Canales hits hard when he wants to.
He then argues with the judge about giving the Prosecution time to view the tape that they had given the defense. It made no sense then, just as it makes no sense now. But Canales eventually prevails and shows the tape of the Analyst Conference which shows that only one Shelby tape was played.
If Gilmore bolstered Ken Rice’s credibility with her comments that Canales was lying, Canales certainly reversed that with his proof that Ken Rice was at least mistaken.