It's ten minutes to five on the afternoon of June 29, 2006, and Mark Brennan can feel the tension coiled inside him like a steel spring, wound to the breaking point. He sits in a nearly deserted courtroom in Denver's Alfred A. Arraj United States Courthouse with his client, Bill Cadorna, waiting for the jury to file in and announce its verdict. Eight grueling days of trial, more than three years of legal battles. It all comes down to the next few moments.
Closing arguments in Cadorna v. City and County of Denver wrapped up a mere three hours ago. It's taken the eight jurors scarcely more time to reach their decision than it did for the attorneys to summarize the case — not always a good sign, but Brennan has reason to anticipate victory. An hour and a half into deliberations, the panel sent a note out to U.S. District Judge Robert E. Blackburn: "May the jury award lawyers' fees?"
Brennan knows the answer to that one; the matter of attorneys' fees is up to the judge. But the question itself seems to bode well for the plaintiff. Brennan doubts that any jury would want to award fees to the government, particularly after hearing the evidence about how city officials treated his client, a 53-year-old former firefighter suing for age discrimination. And yet, and yet — in a trial like this one, almost anything is possible.
Brennan turns to Cadorna and claps him on the shoulder. "Whatever happens," he says, "I'm glad we didn't settle this thing. These have been the most enjoyable two weeks of my entire professional life."
Not many lawyers would regard the Cadorna trial as a career highlight. But Brennan, a 6'3" broad-shouldered Hoosier with a booming baritone voice, isn't like many lawyers. A solo specialist in employment law who seems to thrive on conflict, he relished taking on the collective might of the Denver City Attorney's Office, the Denver Fire Department and the Denver Civil Service Commission — and, in his view, he kicked their collective ass.
He'd held up to scrutiny — and yes, mockery — the city's costly and absurd criminal investigation of Bill Cadorna, a firefighter for more than 25 years. Along the way, he'd provided some unsettling glimpses of the petty spats and vendettas simmering at local firehouses, where some employees apparently spend their downtime bickering over what's for dinner, filing grievances against each other and tossing around homophobic and racial slurs while scheming to banish their elders from the pack.
Cadorna had been fired in 2003 for allegedly stealing a $20 cookbook from a Safeway. The bizarre case against him later fell apart, after one of the key witnesses admitted to lying on the stand. But the city refused to rehire Cadorna, telling him that he was too old to be reinstated.
To Brennan, the demolition of his client's career is a clear case of age discrimination. But getting it to the jury wasn't easy. Over the past eight days, he'd clashed frequently with the defense, including an explosive confrontation in a hallway with an assistant city attorney, whom Brennan called a "fucking weasel." He'd also been scolded repeatedly by Blackburn for breaches of the judge's strict trial protocols, everything from "speechifying" his objections to making faces. The duel with the judge had led to a showdown on the last day of testimony, when Blackburn cut off Brennan's cross-examination of a top city official and then slapped him with a contempt citation. But Brennan could tell that he was making his case with the jury — and that, he figured, was all that really mattered.
"They gave you the ultimate power to decide," he told the jury in his closing just a few hours earlier. "Otherwise there is no possibility of justice, so long as those who have all the wealth and power at their disposal have the only say on what is lawful and proper."
Now the jury gets to have its say. Brennan and Cadorna stand as the five men and three women enter the courtroom. The bailiff collects the verdict forms and hands them to Judge Blackburn, who reads them aloud. The plaintiff has prevailed on all counts; the city is guilty of age discrimination in its decision to fire Cadorna and in its refusal to rehire him. The jurors award him $610,571 in back pay and compensatory damages, a figure the judge is obliged to double because they also find the discrimination to be "willful." Add to that Brennan's legal fees, and the Hickenlooper administration is looking at an award in excess of $1.5 million, one of the largest judgments ever entered against the City of Denver.
Cadorna recalls the moment as one of the most electric of his life. "I thought, 'At last I'm vindicated,'" he says. "These eight people saw through the lies and bullshit."
But he has yet to receive a single dime of the vindication that the jury offered him. In September, a full fifteen months after Cadorna's victory, Judge Blackburn threw out the verdict and granted the city's motion for a new trial, ruling that Brennan's "boorish and unprofessional antics" had prejudiced the jury and prevented the city from receiving a fair trial.
Blackburn is a punctilious jurist with a weakness for bowties. He's also a wordslinger who apparently gargles dictionaries during his morning toilet. He takes a Buckley-esque delight in inflicting Elizabethan and Latinate terms on bewildered combatants, telling attorneys an objection is "inchoate" or "puissant" and urging them not to "pule." Contrary to the advice of great writers from Twain to Orwell, he never uses a familiar word where a compound obscurity will do. His love of the thesaurus is on shameless display in the Cadorna decision, as is his loathing of Cadorna's attorney.
"Even now, some fifteen months after the trial, my recollection of Mr. Brennan's conduct during the trial is preternaturally vivid," Blackburn wrote in his decision, "since in over nineteen years on the bench, I have seen nothing comparable. Such disrespectful cockalorum, grandstanding, bombast, bullying, and hyperbole as Mr. Brennan exhibited throughout the trial are quite beyond my experience."
The fifteen-page document goes on to blast Brennan for his "sophomoric and puerile taunts," his "froward misbehavior," his "oleaginous comments" and "unctuous acts of affectation," his "contumacious conduct" and its "concomitant synergistic effects" — all of which, despite "ingravescent remonstrations from the court," left the trial "inquinated irreparably." In Blackburn's opinion, the jury couldn't possibly have resolved such an ambiguous case on the facts in a mere three hours. The panel must have been swayed by Brennan's frequent attacks on the opposing attorneys, fire department officials and even the judge; his "unconcealed contempt for everyone involved in the proceeding, excepting only his client and his cause, was palpable."
Judges aren't supposed to interfere with jury verdicts except in truly exceptional circumstances — for example, a runaway jury that demands impossibly steep punitive damages. Still, scuttling inconvenient jury awards isn't entirely unknown in Denver's federal court. Last April, Judge Phillip Figa reversed himself and dismissed a lawsuit against oil giant Kerr-McGee for allegedly shortchanging the government millions of dollars in royalties. The order came months after a jury had already decided that the company underpaid $7.6 million, based on evidence presented at trial by former federal auditor Bobby Maxwell ("Duke of Oil," September 8, 2005). The ruling stunned Maxwell's attorneys, who are appealing the case. But Figa wasn't saying the jury did a bad job; his decision had to do with Maxwell's status as a whistleblower under the False Claims Act, a complex issue that had been bouncing around a higher court while the trial proceeded. Blackburn's decision to cancel a verdict more than a year after the trial because of attorney misconduct, when no motion for a mistrial was ever made during the trial itself, is even more extraordinary.
Brennan sees the order for a new trial as indicative of Blackburn's contempt for him, not the other way around. "Judge Blackburn so enjoyed my first performance that he wants me to come back and do it again," he quips. "He wasn't far wrong in his surmise that I'm a smartass. But how could all these smart people be mesmerized and manipulated by little old me?"
The city's attorneys claim that Brennan violated proper trial procedure more than eighty times, but Blackburn's order focused on only a few instances. Brennan says his alleged misconduct amounts to "commonly accepted trial tactics" or minor gaffes — too minor to merit throwing out the verdict. "You won't see a two-week trial where this stuff doesn't happen," he says. "Most judges let it blow by. This guy was just looking for a reason to jump on me, frankly."
Cadorna says he's devastated by Blackburn's decision. He waited three years for his day in court, and might have to wait three more for another one. "I feel betrayed," he says. "The city did as much bullshit as Mark did — more, in fact, but they weren't as flamboyant about it. And [the judge] never did anything about that. His decision wasn't based on my case. It was based on his dislike of Mark. If you read it, it's not about me. It's all about Mark."
Brennan has filed a hefty motion for Blackburn to recuse himself from the new trial, attaching more than a thousand pages of excerpts from the transcript of the first trial in an effort to demonstrate Blackburn's bias against him. He has suggested, none too subtly, that the judge has aligned himself with the City of Denver and is seeking to pressure him to settle the case. And he and Cadorna aren't the only ones outraged by the judge's order. Several members of the jury, which was selected from a statewide pool, say they also feel betrayed.
"I was totally shocked when I heard he overturned this thing," says Larry Kelly, a retired Buena Vista restaurateur who had to make arrangements to stay in Denver during the two-week trial. "I think it's totally unfair. We're the ones who sat through it and made the decision. That's the due process of law. The judge is supposed to back us up, but he didn't."
Kelly and other jurors interviewed by Westword insist they weren't dazzled by Brennan's theatrics; if anything, his skirmishes with the judge came close to alienating the panel at times. They say they decided in favor of Cadorna not because of his attorney, but because of overwhelming evidence that the city had botched the investigation and firing of Cadorna. And they're astonished that Blackburn, who had a brief meeting with them after the verdict to thank them for their service, now has decided that their verdict doesn't count.
"At the time, it felt like he was satisfied that we did our jobs," says one juror who requested anonymity. "We did do our jobs. Then when I saw what he said about us, I was pissed. Not fair. Not true. If I could figure out a way to sue him for defamation of character, I would. What a horrible, horrible thing to say about us, that we didn't consider the evidence, that we didn't spend enough time on it. I'm sorry. This was clear-cut. We didn't need a lot of time. There wasn't anybody in the room who didn't see it clearly."
Mark Brennan's grandfather went to law school at Harvard but dropped out after his first year. His family still has a friendly letter from one of his professors there, Felix Frankfurter, who would later sit on the United States Supreme Court — and become the justice system's most influential advocate of judicial restraint.
Like his grandpa, Brennan was intensely ambivalent about a legal career from the outset. He grew up in northern Indiana, graduated from Rice University and eyed law school as a possible ticket to a career in the Foreign Service. He was accepted at every program to which he applied and decided on Stanford. He soon discovered that his deep, commanding voice and background in drama might come in handy in a trial setting, but the dispassionate nature of most legal maneuvering bored him to tears.
"There was nothing in the law that interested me in the least," he says, "but I'm one of those guys who finishes what he starts. I used to watch Rumpole of the Bailey, To Kill a Mockingbird, Anatomy of a Murder — that was the stuff that excited me. I knew that if I ever got the chance, I could kick ass in a courtroom."
By the time he got his law degree, the diplomatic corps was suffering Reagan-era cutbacks. Brennan moved into a basement apartment in his sister's house in Denver and took the Colorado bar exam. In 1984 he began working with a small labor law firm and, he says, "loved everything about it." But after four years, disagreements with a new partner in the firm prompted him to chuck the job and take a position in Kentucky as labor employment counsel for General Electric. That gig lasted another three years, until he had a falling-out with a senior attorney over a trucking contract. "It ended with me telling him to go fuck himself," Brennan recalls.
Brennan returned to Colorado in 1993 with his wife, Myna, and twin daughters. He was hired by the Equal Employment Opportunity Commission and was soon embroiled as lead counsel in a massive class-action age-discrimination case against Martin Marietta. But after "two very unpleasant years," he'd had a bellyful of office sniping and a lack of resources to battle the corporate giant. He left and found that he actually liked working out of a modest home office, spending time with his family and taking on a more manageable caseload.
Brennan first met Bill Cadorna in 1999, when the firefighter sought legal help in resolving some conflicts at work. A Vietnam veteran, Cadorna had joined the DFD in 1976 and had a nearly spotless record as a mucker on a pumper crew. But he'd recently supported an older firefighter's age-discrimination complaint and claimed to have suffered retaliation in return. Among other petty harassments, a captain had ordered Cadorna to perform a "set test" — a series of physical challenges that included raising a thirty-foot ladder by himself, dragging a 175-pound dummy 100 feet and running five flights of stairs while loaded down with equipment — for eight shifts in a row.
The test, which is no longer used, was supposed to be performed once a year. But the captain was skeptical of a back injury that Cadorna had reported years earlier and determined to find out how serious it was. "He wanted to see if he could get my back to fail," Cadorna says. "Those were his exact words."
Brennan got involved in the case, and the threatened disciplinary action that Cadorna was facing soon went away. "My last words to Bill were, 'Whatever you do, you've got to be purer than Caesar's wife,'" Brennan recalls. "'If you look at these assholes crosswise, they're going to stick it in your ass and break it off.'"
He shakes his head. "The next time I hear from Bill Cadorna is in August of 2003 — eight months after he's been shitcanned."
The events leading up to Cadorna's termination were much disputed in court, but certain facts are well documented in the heap of memos, investigative files and deposition transcripts assembled in the case. Starting in the summer of 2002, Cadorna had a series of run-ins at Fire Station 27 in Montbello with a superior, Lieutenant Frank Hoffman. The two men had once been diving buddies — Cadorna had even introduced Hoffman to the woman who would become his wife — but the relationship later soured. Hoffman complained that Cadorna was insubordinate, changed the oil for his personal vehicle at the station and neglected to clean up when he cooked or even to turn off the grill — a potential public-relations disaster if it ever resulted in a fire at the station. Cadorna claimed that Hoffman made crude remarks suggesting that Cadorna performed fellatio on officers, that the lieutenant denigrated his cooking as "slope slop" or "gook food" (Cadorna is of Filipino/Hispanic/European heritage) and threw out a $160 cooking pot belonging to Cadorna.
Both men had supporters at the station, and both were reprimanded after a testy exchange in which Hoffman referred to Cadorna as a "sniveling little bitch." Another firefighter would testify that Hoffman told him he intended to get Cadorna fired, a remark Hoffman himself would deny.
On December 7, 2002, Cadorna, Hoffman and others from the station were shopping at a local Safeway when they were called out to answer a fire alarm. They had no time to pay for their groceries and left them behind, yet Cadorna emerged from the store clutching a copy of the Junior League of Denver's Colorado Colore cookbook, on sale at Safeway for $20.97. Later that day, Hoffman contacted assistant chief Joe Hart and told him he suspected that Cadorna had stolen the book.
Questioned by Hart, Cadorna explained that he'd left his own copy of the cookbook at the store on an earlier visit. He'd asked a clerk named Kevin if it had been found, and Kevin had told him it was okay to just take another copy until his own turned up. Skeptical of Cadorna's version, Hart launched an investigation into the caper with such zeal you'd think one of his fire trucks had been swiped. Within a day, he'd persuaded a Safeway manager to file a shoplifting complaint against Cadorna. Within a week, Cadorna was put on notice of pending disciplinary action. Within a month, he was fired.
By the time Cadorna contacted Brennan, the shoplifting case against him had disintegrated. A trial in Denver County Court ended in a hung jury. Afterward, Michael Brown, the Safeway manager who'd filed the complaint, admitted that he'd lied on the stand when he'd denied that Cadorna's original copy of Colorado Colore had ever been found. Just such a book, with the firefighter's name and other information written on the first page, had been turned in by an employee two weeks after the incident. But Brown suspected the book had been planted in the store after the alleged theft, so he'd cut out the page with Cadorna's name on it and put the book back on the shelf for sale.
To Cadorna's amazement, even this admission failed to change the fire department's dim view of him.
At first Brennan was reluctant to take up Cadorna's cause. "I'd wanted out of the business for years," he says. "I had grown to hate the legal business and the inverse relationship between the degree of your integrity and the degree of your success. And really, the person responsible for this is Bill Cadorna; instead of buying another cookbook for twenty dollars, he took a gift from Safeway. Still, he didn't steal it. He was tried, proved innocent, yet executed."
The more Brennan looked into the case, the more incensed he became. Firefighters accused of felonies are routinely suspended pending the outcome of their criminal case, yet Cadorna had been fired over a petty shoplifting beef before he even had a chance to clear his name in court. It's standard policy at Safeway not to file shoplifting charges unless an employee actually observed the theft and detained the suspect on the spot, yet Hart had coaxed a store manager into signing a complaint based solely on Hart's claim that three firefighters had witnessed the theft — which wasn't true. The Denver police hadn't even bothered to question the only eyewitness, the clerk who'd allowed Cadorna to take the book. Instead, the cops had relied on the investigation that Hart had done, which Brennan considered biased from the get-go.
Cadorna and Brennan went through Denver's civil service appeal process in an effort to get him reinstated. Hearing officer John Criswell, a former state supreme court justice, noted acidly that Cadorna "seems blissfully unaware of the improper image portrayed to the public by a uniformed public safety officer asking for favors from a tradesman." But Criswell conceded that no one had proved theft. Normally, that would mean that Cadorna should be reinstated, but Criswell ruled that he had "voluntarily elected to retire" before his dismissal and therefore could only receive back pay for the time between his termination and the start of his pension. In addition, Criswell noted that a state law prohibits disabled firefighters from being re-examined for active duty if they are over the age of fifty.
In fact, Cadorna hadn't voluntarily retired at all. He'd applied for a disability pension after he was fired, a move that could hardly be considered voluntary. (The "disability" was a hearing loss Cadorna claimed to have suffered early in his career that never impeded his ability to be a firefighter; it simply lessened the tax bite on his pension.) Brennan appealed the ruling to the Civil Service Commission, calling Criswell's assertion of voluntary retirement "a non-factual non-finding of a non-evidentiary non-fact contradicted by all the evidence in the record." But here, too, Brennan found himself falling down a bureaucratic rabbit hole.
"The Commission is without authority to order the Hearing Officer to 'correct' a factual finding," the panel ruled, no matter how non-factual that finding might be. Nor was the commission interested in addressing Criswell's suggestion that if Cadorna was 49 instead of 51, he could have his job back.
Flummoxed, Brennan figured the next stop was federal court. He hadn't tried a case for several years and attempted to line up adequate co-counsel, but no one else would take on such a problematic lawsuit, he says. He offered to settle with the city for $250,000 and was told to pound sand. As the trial approached, Brennan put the case together himself, without even the services of a paralegal; it was just him, Cadorna and Brennan's assistant, Patch.
When people ask about other members of Brennan's firm, he introduces them to Patch, who happens to have four legs and a tail. "My blue heeler is my associate," he says.
Although he refers often to his two decades on the bench, Robert Blackburn has been a federal judge for only the past five years. He and Marcia Kreiger were nominated during President George W. Bush's first term, filling longstanding vacancies that had made Denver's federal district court one of the most backlogged in the nation ("Bench Pressed," February 11, 1999). Prior to 2002, Blackburn was a small-town lawyer, prosecutor, municipal judge and then district judge in southeastern Colorado, where he was widely regarded as a bright and fair-minded fellow.
Federal judges are appointed for life, a circumstance that tends to encourage imperiousness. Blackburn has earned generally high marks from attorneys; he comes across as a stickler for proper procedure but more even-tempered than some of his colleagues. On the Robing Room website (www.robingroom.com), "where judges are judged" and anonymous posters can unscientifically rate their experiences in federal court, he ranks higher than Judge Figa and Lewis Babcock and below Richard Matsch (who won national praise for his handling of the two-year trials of the Oklahoma City bombers) and Edward Nottingham (Qwest ex-CEO Joe Nacchio's judge, recently hammered by press reports about a visit to a strip club and a tiff with a disabled attorney over a handicapped parking spot).
But Blackburn has his critics, too. "A pedantic martinet with deep-seated issues and barely concealed hostility toward plaintiffs," reads one Robing Room review.
Civil-rights attorneys complain that it's difficult to get discrimination cases to federal juries in Denver because many judges routinely dismiss them on motions for summary judgment. Blackburn is no exception, they say. His most notable dismissal to date, the gender-discrimination case against the University of Colorado filed by two women who claimed to have been sexually assaulted at football recruiting parties, was overturned in September by the 10th Circuit Court of Appeals; CU settled the case last week for $2.85 million.
Brennan says it became clear to him weeks before the Cadorna trial that he and the judge didn't see eye to eye on issues great and small. At a pre-trial conference, he had a serious wrangle with the judge over whether Blackburn or the jury would be the decider of Cadorna's claim of violation of due process. (The claim was dismissed mid-trial.) And a seemingly innocuous e-mail exchange Brennan had with the judge's assistant over logistical matters brought a blistering rebuke from Blackburn, who accused the attorney of being "condescending" toward his staff. Brennan was alarmed enough at the tone of Blackburn's response that he filed a motion asking for the judge to remove himself from the case before the trial began, only to withdraw it a day later.
Still, Brennan was optimistic about his chances once the jury was chosen. The panel was composed largely of people in their fifties and sixties, several of whom had extensive management experience; they included a retired naval officer, a flight attendant, a retired banker and an accountant.
"I honestly believed the jury would decide this case, and this was a good jury," he says. "When a lawyer has a good case, he's happy to have a smart jury. It's when you have a bad case that you want a dumb jury."
Blackburn gave the panel the usual speech about jury service being a solemn duty and vital to the cause of justice. He promised the panel that they would find jury duty to be "one of the most interesting and challenging experiences of their lives."
And with that, the trial began. Months later, in his order tossing out the verdict, Blackburn observed that "the cold transcript does not convey adequately the Gestalt of what transpired during this trial." But the written record does show that Blackburn criticized Brennan's conduct early and often, displaying increasing irritation as the trial progressed. The judge upbraided him for sprinkling editorial or sarcastic comments in his examinations, for asking hypothetical questions, for making long-winded objections ("speechifying") and failing to pause while Blackburn ruled on objections by the defense. The attorney was taken to task for referring to witnesses by their first names and for laboriously laying the groundwork for exhibits that had already been admitted into evidence or trying to use exhibits that hadn't been admitted.
Some of these transgressions, Brennan insists, were nothing worse than breaches of Blackburn's rigid court etiquette. Some, such as the confusion over exhibits, may have indicated a degree of disorganization rather than conniving on the attorney's part. "This is the first jury trial I'd done in many years," Brennan says. "I read some of [the transcript] and I'm embarrassed. It may not read like Perry Mason stuff, but the points come out slowly."
In any event, Brennan's conduct didn't seem to tilt the course of events. The city's attorneys, Chris Lujan and Jack Wesoky, objected frequently to Brennan's often leading or contentious questions but were frequently overruled by Blackburn. Witnesses gave the jury an earful of the feud between Cadorna and Hoffman that led up to the shoplifting investigation. On the second day, Brennan played a revealing video deposition of Michael Brown, the former Safeway manager who'd signed the shoplifting complaint, in which he conceded that fire officials had pushed for the case and that he'd lied about finding Cadorna's cookbook. Although the jurors weren't allowed to discuss the case among themselves at that point, subsequent interviews suggest that Brown's admissions made a powerful impression.
"It was clear that this guy Cadorna got screwed every way there was," says one juror. "But that in itself is not age discrimination. We were waiting to see when that would come up."
The next morning began badly. When Brennan handed a witness a letter not yet admitted into evidence, Blackburn scolded him again. Brennan apologized. "I will do my best to comply with your admonition, your honor," he said.
"Thank you. I will help you," Blackburn replied.
Brennan continued, "I wonder if the jury should be hearing this kind of remonstration all the time, which I think has a tendency to prejudice them against me, because you are in essence passing judgment upon my competence as an attorney in their presence."
Livid, Blackburn ordered the jury out of the courtroom. He then blasted Brennan for his "highly disrespectful" remarks and accused him of attempting "to pad the record with injected prejudice."
Brennan now says it was a tactical error to raise the matter of Blackburn's little lectures in front of the jury: "I should have waited until a break to raise the issue, but I was a little angry. He decides it's appropriate for him to be denigrating me in front of the jury, but not for me to object."
His reluctance to back down produced other flare-ups with the judge as the day wore on. When Brennan referred to Safeway as "an incredibly wealthy company" and asked one witness why fire officials were giving the grocery chain's employees a ride from a court hearing, Blackburn called a bench conference to tell him to knock off the inflammatory rhetoric. When Brennan complimented Joe Hart, the assistant chief who'd investigated the cookbook affair, for his "impressive uniform" and described him as a "very handsome fellow," Blackburn called a recess — and again lashed into the attorney once the jury was removed.
"Mr. Brennan, enough is enough," he said. "You are going to have to find it within your power to resist what apparently is the almost irresistible — to comment editorially as you conduct examination."
In court filings Brennan has made since the order for a new trial, he explains at length that he wasn't trying to mock Hart — or the judge. Bringing up the uniform was a way of making a crucial point to the jury. One of the accusations against Cadorna was that he'd used his uniform to obtain the favor of a cookbook from Safeway employees. But Hart had come to the same folks the next day, in an even more impressive uniform, seeking to enlist them in Cadorna's prosecution. He'd even taken a copy of Colorado Colore from the store for investigative purposes — without paying for it.
The jury picked up on what Brennan was doing, even if the judge found it verging on contempt. They also learned that several statements Hart had made in the course of his investigation now turned out to be untrue — that he had witnesses to the shoplifting, for example, or that a search of Safeway records had failed to turn up Cadorna's prior purchase of the cookbook. (No such search was ever performed.) Hart was also obliged to admit that he was good friends with Cadorna's nemesis Hoffman, who'd arranged for an excavation company that Hart operated as a sideline to get some trenching work.
It appeared that Cadorna's goose had been cooked, so to speak, from the outset — and that counted more with the jury than Brennan's frequent trips to the woodshed.
Getting Hart to admit that his investigation was badly flawed was supposed to be the prelude to the grand event of Cadorna's testimony. But the examination of his own client was rockier than Brennan had anticipated. Cadorna seemed distracted, and Brennan's questions became increasingly leading or speechified, prompting frequent objections.
At one point, Judge Blackburn called a recess to instruct the plaintiff's attorney not to make faces "when this court makes a ruling that is adverse to you." Although he quickly apologized, Brennan now says he has no idea what the judge was talking about.
"I do wear my heart on my sleeve," he says. "I might have unconsciously registered some disgust with his ruling, but there was nothing histrionic about my conduct."
The real histrionics came later, as a frustrated Brennan followed Cadorna to the bathroom and urged him to get his head together. Assistant City Attorney Wesoky confronted Brennan and told him it was improper to coach a witness. Brennan blew up. "I am not coaching the witness," he said. "Get the fuck out of my face." He went on to call Wesoky a "fucking weasel."
When the jury was dismissed for the day, Wesoky brought the exchange to the attention of Judge Blackburn. The judge listened impassively as Brennan described himself as "temperamentally challenged" and blasted the city's attorneys as "masters" of witness-coaching.
"There are various ways in which lawyers can offend the propriety and decency of a court," Brennan said. "Being impolite or temperamental is the least of these.... They come here and insult your integrity, insult your office and insult this entire courthouse by their conduct in presenting every manner of lie they possibly can."
To his credit, Blackburn declined to get involved in the scrum. "I am not going to change hats at this point and sit as some kind of referee of unprofessional conduct that occurs outside my presence," he said, sending the combatants home for the day.
According to jurors, the turning point in the trial was not Cadorna's testimony, but the self-destructing case the defense mounted in the last two days. The city officials who took the stand to defend Cadorna's dismissal came across as well-rehearsed, robotic and stonewalling. None of them seemed even remotely concerned about the public resources that had been devoted to ruining a lowly mucker's career over a false charge. Some of them couldn't even get his name right, calling him "Cardona."
The city called Frank Hoffman, who would have had the jury believe that Cadorna was making $56 an hour moonlighting at Home Depot — an assertion easily rebutted by Cadorna himself. Brennan wrapped up a bruising cross-examination of Hoffman, a tall and imposing figure, with a weird non sequitur: "Now, about your wedding. Did you invite the Addams family?"
The remark bombed. The jury didn't know that Hoffman's nickname around the firehouse was Lurch. In his order, Blackburn would cite the exchange as an example of Brennan's "sophomoric and puerile taunts." But Brennan says the remark was a calculated effort to provoke Hoffman into showing the jury his temper; at a deposition, Hoffman had responded to a coarse quip from Brennan with "a paroxysm of anger and an invitation to fisticuffs." But not this time.
Brennan fared better with former Denver fire chief Rod Juniel, who said that he expected veterans to set an example for younger firefighters. Juniel stopped short of saying a younger employee wouldn't have faced termination over the cookbook affair, but the suggestion that age had played a part in Cadorna's sacking was hard to miss.
From Tracy Howard, Denver's former manager of safety, Brennan was able to wring some concessions that the handling of Cadorna's firing hadn't exactly followed the presumption of innocence. But Howard was a cagey witness, and Brennan's cross was soon mired in objections from the defense and stern warnings from Blackburn to stop editorializing. When Howard finally admitted that Cadorna was never convicted of anything, Brennan remarked, "There is a straight answer" — and all hell broke loose.
Blackburn sent the jury out. Then he informed Brennan that he was terminating the cross-examination because of the attorney's "improper and inappropriate" comments. Brennan began to protest. The judge told him to be quiet.
"You will either follow the simple requests, requirements and orders of this court, or you will suffer appropriate sanctions," Blackburn said. "Don't pule to the court that I am visiting your sin on the plaintiff."
Brennan wouldn't give up. A few minutes later, with the jury back in the courtroom, he requested permission to call Howard as a rebuttal witness. A bench conference ensued. "I hope that the court will set aside its contempt of me to ensure my client has a fair trial," Brennan told the judge.
"I have no personal or professional contempt for you," Blackburn replied.
"I have sensed otherwise, your honor, with all due respect," Brennan said.
Blackburn told Brennan to quit interrupting him. Brennan kept interrupting to apologize. The transcript is possibly misleading on this point, since the court reporter has no way to show two people talking at once, but it's clear that Blackburn accused Brennan of trying "to bully the court" with his interruptions, and Brennan denied it. The aggrieved judge ordered the jury removed once more and then made a record of his displeasure.
"Mr. Brennan continually and without cause interrupted the court in its remarks," he said. "If this had been the first rude, contemptuous interruption, the court would have simply disregarded it, as I have during this trial on so many previous occasions. But enough is enough."
He fined Brennan $500 for contempt of court, warning that every subsequent violation would double the fine. Testimony staggered to a close that same day, with a seemingly unchastened Brennan still making the occasional editorial comment. He now says there was simply too much at stake to back down.
"I wasn't as self-contained as I would like to have been," he admits. "I do have a somewhat commanding presence, but it also works against me. All the things that juries like about me, judges hate. They resent the fact that I don't kiss their asses. Juries like that. They see the passionate advocate who has their client's cause at heart."
Some jurors seem to have found Brennan's performance more irritating than endearing. Still, they had little inkling of the blowups that had occurred while they were out of the courtroom, and by the end of the trial, they were more focused on the smoldering holes that had been blown in the city's defense. They saw that the city attorney's office hadn't gone after Michael Brown for perjury, or Joe Hart for dubious official statements about what his investigation had uncovered; instead, the city's lawyers had fought like minks to present evidence of drunk-driving and domestic-violence charges that Cadorna had picked up during what he calls "one bad day," events that had nothing to do with his dismissal from the Denver Fire Department.
The jury saw high-ranking city officials who dithered and dodged on the stand and didn't seem capable of acknowledging that the department had screwed the pooch on this one; when Brennan congratulated Howard for finally giving a straight answer, "that was the way we all felt," one juror says. And when they went into the jury room to discuss their verdict, the eight jurors quickly discovered that there was little disagreement about what had happened to Bill Cadorna.
"To us, it was pretty clear that they were out to get this guy from day one," says another juror, Fred Gibson, a semi-retired money manager who lives in Castle Rock. "The only thing that took time in the deliberation was figuring out how much to award the plaintiff."
Since the matter is still under his jurisdiction, Judge Blackburn is prohibited from commenting publicly on the Cadorna case outside of his rulings. Denver City Attorney David Fine, who left private practice to join the Hickenlooper team last month, declined to respond to several specific questions, noting that a second trial is still pending.
According to Fine, his office has already spent more than 400 hours defending the lawsuit, as well as $38,000 on the services of outside counsel from Brownstein, Hyatt & Farber involved in the post-trial motions. Asked why, if Brennan's misconduct was as "pervasive and egregious" as the city attorney's office now claims, the defense didn't ask for a mistrial before the case was sent to the jury, Fine says he doesn't want to comment on "trial strategy."
Unlike Blackburn's ill-fated effort to dismiss the CU recruiting-scandal case, his order for a new trial is not appealable to a higher court without approval of the trial judge. Brennan has asked to appeal the ruling, and Blackburn has refused to allow the appeal to go forward. So now, Cadorna and his attorney face the prospect of a new trial in front of Blackburn. "It's not out of the question that he could put us in a state of continuous Groundhog Days, in which we live the same case over and over," Brennan says. "This is a great gift to the City and County of Denver."
Although he says he's "greatly disillusioned" by his experiences as an attorney, Brennan insists he's fully prepared to take the case to trial again. "I did everything I was supposed to do," he says. "I did what these great bullshitters, the leading members of the bar in this town, say you're supposed to do on behalf of your client. And my reward for it is to be publicly defamed by Judge Blackburn."
Assistant City Attorney Lujan recently sent a letter to Brennan, indicating that his office was interested in reopening settlement negotiations. But Lujan also suggested that Brennan might have to step down as Cadorna's attorney first, as he has a potential ethical conflict with his client. If the case is settled for less than the $1.2 million Cadorna was awarded by the jury, he might be able to sue Brennan for the difference, since the attorney's conduct cost him the higher amount. Ergo, Brennan has an "incentive" not to settle the case, even if it's in his client's best interest to do so.
"In my view, it's an unethical threat, intended to intimidate us into rolling over for a settlement," Brennan says. "They know quite well I'm the only lawyer in town who would take this case."
Although Cadorna has refinanced his house to try to keep up with his legal fees and other debts, he says his faith in Brennan is unshaken: "I still trust him as much as I trust anybody in the world."
He has worked odd jobs since his retirement, nothing steady. "I've gone back almost to the point of hiding in my house again," he says. "How am I going to tell someone when I apply for a job that I got fired from the fire department for stealing a cookbook?"
Cadorna won't rule out a possible settlement, in part because the idea of going back to trial in Blackburn's court is so daunting. "It's like being trapped in a circus," he says. "It seems like I'm going around and around and around, and every time I grab the ring, it gets jerked away from me."
The jurors feel like something got jerked away from them, too. For Blackburn to come forward more than a year after the trial and claim they'd been prejudiced by Brennan's performance is insulting, they say. When they met with the judge right after the verdict, he raised no such concerns with them. Gibson recalls thanking the judge for keeping Brennan in line, an unmistakable signal that the jury wasn't nearly as enamored of the attorney as Blackburn's order suggests.
"There's always theatrics involved, but that's part of a trial," says Kelly. "I don't think Brennan swayed us. He'd obviously done a lot of work investigating the whole thing. Those two lawyers for the city — they were terrible. Brennan won that trial."
"That Blackburn thinks he knows what went on in that jury room is ridiculous," says another juror. "Why don't we just do away with the jury system and let Mr. Psychic rule? Wouldn't we save a lot of money?
"People watch Law & Order," the juror continues. "I don't think they're as easily inflamed by the antics of lawyers anymore. That's a stupid assumption to make, and any judge who throws out a jury verdict should be incredibly careful about it. It's disturbing to me that all these months later, you can still see his vitriol against Brennan. Good Lord, that ruling just dripped with it. He found a way to punish him, but the one who gets hurt is Cadorna."
During jury selection, Blackburn told the randomly summoned citizens that they were undertaking a great responsibility. "You will have occasion and opportunity to exercise more absolute power and authority than at any other time in your life," he said.
As with many other official statements about the case of the firefighter and the cookbook, that turned out to be a bunch of cockalorum.