Case Explained: Podcast – Reading The Room – Crime – Legal Perspective

In this episode of “The Trial Lawyer’s Handbook,”
litigation attorney Dan Small continues the
discussion of U.S. v. Rendle and explains why reading the
room matters in court. Mr. Small shows how judges, juries and the
pace of a trial should guide your choices across all aspects of the
proceeding, not just your arguments. He shares a Boston case where
a defense lawyer’s approach at sentencing hurt the client and a
moment in U.S. v. Rendle when a lengthy cross-examination
allowed the government to respond with a strong redirect. This
episode offers clear lessons on timing, tone, selecting the right
witness, when to object and how courtroom dynamics can lead to plea
deals.

Listen to more episodes of The Trial Lawyer’s
Handbook here.

Mr. Small is also the author of the American Bar Association
(ABA) book Lessons Learned from a Life on Trial: Landmark
Cases from a Veteran Litigator and What They Can Teach Trial
Lawyers.

Podcast Transcript

Daniel Small: Welcome to another episode of
“The Trial Lawyer’s Handbook” continuing on
discussing the U.S. v. Rendle case, based in part on my
latest ABA book, “Lessons Learned from a Life on
Trial.”

As trial lawyers, we are advocates, but we cannot let our
strongly held beliefs blind us to the realities of the courtroom.
Our clients, whether individuals or the government, need counsel
who can “read the room”: the judge, the jury, the
atmosphere, the direction things are going. It can be a challenge
to step back from our advocacy long enough, and far enough, to
really read the room.

One extreme example from a different case and a different judge:
As an Assistant U.S. Attorney in Boston, I prosecuted a U.S.
Customs Service agent for stealing and selling confidential
information from the agency’s computer system. He hired an
experienced criminal defense lawyer to represent him. This lawyer
was known for attacking the government: “The government had
overreached,” “the government had made mistakes,”
“the government had acted improperly,” etc. That was
helpful to the defense in some cases, but how does it help to say
the government is bad when you’re defending a government
agent?

It didn’t. The jury was confused but not convinced by the
lawyer’s attacks. The judge was unsympathetic and impatient, at
best. The defendant was convicted on both counts. Then, at
sentencing, it got worse.

As the prosecutor, I got up first and talked about the
importance of the confidentiality of the customs system and the
seriousness of the agent’s breach of trust. I argued for a
sentence on each of the two counts but said that the sentences
could run concurrently, not stacked on top of each other
consecutively. Then it was the defense’s turn.

Most of the time, for the defense, the sentencing hearing is a
time for — well, let’s call it what it is —
groveling. Your trial defenses haven’t worked, questions of
guilt or innocence have been resolved against you, and the judge
needs to hear remorse and pleading for leniency. Courtroom
etiquette doesn’t allow you to get down on your knees to beg,
but sometimes, if you could, you probably would.

Not here, not this time. This defense counsel was so caught up
with his constant refrain that he got up at the sentencing hearing
and railed against the government again. Everyone in the courtroom
was shocked. That ship had sailed. This was not the time or place
for that argument.

Read the room. He didn’t, and when he was done, the judge
was clearly angry. He glared at the defense counsel while he
announced that he was accepting the government’s sentencing
recommendations on both counts. But then he paused and, still
glaring directly at the defense counsel, said that the sentences on
the two counts would run consecutively, not concurrently as I had
recommended. As I said, an extreme case, but one that clearly shows
how far reading the room (or not) can take you.

In the Rendle case, the importance of reading the room
started early. Judge Tauro and I disagreed on many things, but we
agreed on one: We both loved trials. The excitement, the
entertainment, the knowledge, the challenges. That can sometimes be
difficult to maintain in a complex, multiple-defendant white collar
case, but it remained no less important.

Our first witness at trial was not intended to be exciting. This
was the beginning of what was to be a month-long trial. We had
explained in opening that we would call a Department of Housing and
Urban Development, or HUD, auditor first, just to explain the
housing program and how things worked. Explain the program that was
the basis for the corruption. Dull, but necessary to lay the
foundation for what was to follow. Our witness was right out of
central casting for auditors: smart, soft-spoken and (I say this
with fondness and respect) boring. He did a good job explaining the
program, and then I sat down.

Cross-examination of the auditor probably should have been
limited or nonexistent. Nothing he said was really disputed, he had
no personal knowledge or involvement with the defendants, mostly
just what he had learned from reading the HUD and case documents,
and most of that, coming out of his mouth, would be hearsay.
“No questions” would have been an effective
cross-examination. But the lawyers and their clients were
impatient, wanting to do something to counter the wave of evidence
they knew was coming. So one after another, defense counsel tried
to use this poor auditor to put forward their defense theories.
Some of the lawyers cross-examined him for longer than he had been
on direct and in directions we hadn’t touched on in his direct
examination.

He was the wrong witness for their purpose. Clearly a nice
fellow, clearly just an auditor. Not evil and not able to make
their theories come to life. They should have seen it and stopped.
I objected at various times on speculation, lack of foundation and
hearsay, but not too much, not too vehemently, and Judge Tauro
overruled most of my objections. He was giving the defense great
leeway, but I could see him getting more and more impatient as this
unsuccessful effort droned along.

Finally, the last defense counsel ran out of steam. Most of the
time, redirect examination is short, limited to the direct and
restricted to nonleading questions. But reading the room, I felt
more was needed. I gathered all the energy I could, jumped to my
feet and dramatically launched into what was essentially our
closing argument in question-and-answer form. Leading, raising my
voice, going far beyond what we had done on direct and really far
beyond what they had done on cross.

Defense counsel, of course, went crazy, objecting to hearsay,
scope and everything else, just like I had during their
cross-examination. But they had misread the room. After a long,
pointless slog through cross-examination, we were back to what we
hoped, and Judge Tauro believed, trials should be —
fast-paced, informative and entertaining — and Judge Tauro
was happy with it. He sternly overruled their objections. Finally,
after one objection, he glared at the defense counsel and said,
“Counsel, you opened this door, you have to eat whatever
crawls out of it!” After a redirect that was twice as long as
the direct, I sat down a happy man, having delivered our closing
argument through our first witness, a simple auditor.

Meanwhile, it got worse for the defense. After the auditor was
finished, Judge Tauro called all counsel to the sidebar. Defense
counsel was excited. Sidebar conferences in that courtroom often
included Judge Tauro berating the government. Surely he was going
to rein me in after that outrageous redirect. But again, they had
misread the room. To everyone’s shock, except mine, Tauro
turned to the defense counsel and said: “Is that the best you
have? Am I listening to a month-long sentencing hearing?” And
he told a stunned group of lawyers that he was sending the jury
home for the day to give us time to work out guilty pleas.

We started a round-robin set of plea negotiations with each of
the different defense attorneys. At one point, negotiations broke
down because counsel thought I was being too tough on their
clients. I said fine, let’s go back to trial, I’m having
fun. Instead, they asked for a conference with the judge. We had
all seen Judge Tauro strong-arm prosecutors into more lenient plea
deals. But not this time. Judge Tauro heard them out and then said,
“I think Mr. Small has a very strong position, I can’t
disagree with him here.” And sent us back to work. Eventually,
all of the defendants pled guilty to serious crimes, except the one
most minor defendant, whom we severed out to deal with later.

Reading the room is important in many situations, but
particularly so in a trial. What’s needed, what’s not.
What’s appropriate and what’s not. Where things are going.
We have to be carefully tuned into the room and the people around
us, and not so focused on our own case and our own words that we
lose the room.

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