A ‘trial’ unlike any I’ve ever seen as a court reporter

January 22, 2020 12:15 am

For three years I covered crime and courts in Athens County. I was green to covering the courts, and honestly, I wasn’t very excited about being so close to human awfulness.

Being steeped in the news of the day as a journalist already gives one plenty of exposure to how terribly human beings treat one another. Covering crime and the courts seemed like it would just bring all of that front and center.

It did. It brought me face-to-face with murderers, rapists, child molesters and a couple who assaulted their infant daughter.

It also gave me a close-up view of the workings of the American court system, which was fascinating. I got to see each phase of the criminal justice system, from the police reports of a crime to grand jury indictment to arraignment to conclusion.

Well over 90% of the time, plea deals were worked out behind closed doors, and no jury trial was held. If there was to be a trial, I got to see that process as well, from jury selection to presentation of evidence, to defense to verdict, and most often to sentencing and appeal.

Whatever is happening in the U.S. Congress this week, it’s not justice — not in any form recognizable to any person who has observed an actual trial in the American criminal justice system (and getting into the justice of that system is a whole series of other columns).

Regular Americans are indicted by a grand jury that has been shown all the evidence. If someone is subpoenaed to appear before that grand jury, that person shows up; the accused is not allowed to order them to not appear.

After hearing from all of the witnesses and considering all the evidence, the grand jury decides whether the accused will be indicted and on which counts.

A president is indicted by the U.S. House of Representatives. Apparently, a president who is accused of wrongdoing can block the release of evidence as well as the testimony of witnesses by ordering them to refuse to cooperate with subpoenas. This sends the matter to courts for review.

Another thing you learn covering the courts is that it can take many months or even years for courts to review things. A lot of lawyers earn a lot of money by playing on delays in courts with a whole bunch of legal mumbo jumbo.

By blocking testimony and hemming the issue up in the courts, a president can effectively kill a lot of potentially damning testimony and evidence.

I’ve never seen a regular trial where the accused can stop a grand jury from hearing evidence and testimony.

If the U.S. House of Representatives votes to impeach a president, that is akin to a grand jury handing down an indictment on a regular person. For a regular person, it goes to jury trial. In Congress, the indictment goes to the U.S. Senate for a “trial” of the evidence before a “jury” of all 100 Senators sworn by oath to do impartial justice.

A regular American facing trial sees a jury selection process known as voir dire (courts love Latin). This gives the defense, the prosecution and the judge the opportunity to screen jurors for potential conflicts of interest and eliminate them.

A president’s jury is a Senate comprised of political allies and enemies. In this instance, the jury “foreman,” as it were, Senate Majority Leader Mitch McConnell, said in December he would be in “total coordination” with White House counsel on the impeachment trial.

I have never seen a normal trial where the jury foreman promised to be in “total coordination” with defense counsel.

I have also never seen a normal trial with a juror who reached a verdict in the case more than six weeks before the trial began and before any release of blocked evidence.

Ohio U.S. Sen. Rob Portman did as much when he declared the president not guilty in early December. He said that he had seen nothing on which to impeach, barring new evidence. But on Tuesday, he voted against amendments that would bring new evidence. Portman is far from alone.

I have never seen a trial jury where nearly all of the jurors had predetermined their verdict before the trial.

I have also never seen a trial of a defendant with a narrow majority of friends and allies on the jury given the ability to vote to not allow evidence and/or witnesses at trial — the very same evidence and witnesses the accused had blocked during grand jury.

How could one even begin to pretend that this is justice or how justice should work?

It’s not at all how justice and accountability works for regular Americans. But this, apparently, is the American application of “justice” and “accountability” for the most powerful person in the world.

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David DeWitt
David DeWitt

OCJ Editor-in-Chief and Columnist David DeWitt has been covering government, politics, and policy in Ohio since 2007, including education, health care, crime and courts, poverty, state and local government, business, labor, energy, environment, and social issues. He has worked for the National Journal, The New York Observer, The Athens NEWS, and He holds a bachelor’s degree from Ohio University’s E.W. Scripps School of Journalism and is a board member of the E.W. Scripps Society of Alumni and Friends. He can be found on Twitter @DC_DeWitt