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."