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.