I am too aware that my gender impacts my job. It mostly means I need to be aware of my gender when I approach cases, military panels (juries), and the way that I advocate. That includes to military judges.
Does my gender help me in some ways? You betcha. Candid clients will admit they want to hire me on sexual assault cases because there is an unspoken understanding or belief that a woman would not defend a man on a sexual assault case if he were guilty. All things being equal, if they have the option of choosing a qualified woman versus qualified man, I will sometimes get the nod. I get it. I have certainly benefitted from it financially.
When I defended a fairly notable case at Joint Base Lewis-McChord, Washington whatever undercurrents of misogyny I suspected were there smacked me in the face. Or maybe more aptly (and only metaphorically) smacked me on the ass.
I am someone who did not cry (at all) for probably more than 15 years of the middle section of my life. A whole lot of emotions and feelings shoved way, way down. Analytical, dispassionate, and sometimes unfeeling. Now on the other side of that numbness, I cry some. But never in court or even around court.
Remember that awareness of my gender? Yeah, that. Crying makes you look emotional and weak, and less than. Incapable.
But there is a bit of kryptonite that exists in me when I rage – I rage cry. And it makes me even more enraged because I am altogether aware of the fact that it makes me look sad and weak.
In this trial, the judge dressed me down repeatedly for having facial reactions to evidence and questioning, objections, etc. He even accused me of flipping my hair. Say, what? Mind you, the prosecutor was rolling his eyes when I objected and engaged in all manner of flippant behavior. Members of the gallery were as confused as I was. He said that he was watching the panel and they were constantly looking over to me to see my reaction to evidence as it was happening.
Gee, judge – do you think maybe, just maybe that was because they looked to me as the expert in the room and wanted to see if I was giving away how that evidence should be interpreted? Or maybe, they just like looking at me. I mean, come on… 😉
At one point the military judge threatened me that if he saw one more physical reaction in me, he would stop me mid-sentence, and I would not be permitted to continue as my client’s advocate. AT ALL. For the rest of the court-martial trial.
I asked for a recess. I needed to regroup before I became the number one suspect in a premeditated murder investigation.
We went to chambers to discuss the “way forward.” And then it really went sideways.
The military judge told my male military co-counsel that it was his job, if he sensed that I was becoming overly emotional, to be sure to calm me down. Yes. You read that right. I wrote it down. There was a stunned silence in the room.
Enter rage. And rage crying.
The judge gave me a recess.
I went to the ladies room and the swearing in my head was anything but “lady like.”
But it isn’t about me. And this trial wasn’t my opportunity to “rage against the machine” of misogyny. It is about the client. Always about the client.
I had to navigate this asshole. For him.
After regrouping for a few minutes, I typed out a suggested instruction the judge could give the military panel; I patterned it off the instruction that the military judge gives to all panels at the close of evidentiary instructions that they are to disregard any facial expression or voice inflection that may seem to suggest an opinion by the military judge regarding his (and I do mostly mean his) opinion about guilt or innocence.
On the record I read the instruction and in my sweetest, most docile, and respectful gentile voice respectfully asked that in lieu of impacting my client’s Sixth Amendment right to counsel, that if the judge believed that my facial expressions, were interfering with justice, that I would ask instead of silencing me that he please read this instruction to the panel.
He (mostly) backed off.
At another point in the trial, he was ruling in a way that was so completely wrong, I nearly lost it. Well, some in the gallery would probably say that I all the way lost it.
When I made an analogy that highlighted how wrong his ruling was, he knew I had the law on my side, and he didn’t like that much. So, then he started raising his voice at me, suggesting that I was interrupting him, and surely, I should not be doing that.
Again, I remained calm, and replied that when the Court paused, I interpreted that (apparently wrongly) that he was finished with his statement and was inviting me to speak. I apologized. I was trying to “lower the temperature in the room” or at least in my steely heart.
And then I just started getting really, really loud. I was probably yelling at him. And on some level, I really needed to. He took a recess to consider the issue, came back out, and reversed course. At least on this issue. He made plenty of wrong calls, and those will be reviewed on appeal.
While that case remains pending in the ether of our military appellate court system, I must refrain from providing additional details.
I felt the need, after more than a year and a half, to comment however on this judge’s temperament, demeanor, and behavior. The only person in that courtroom left with any question or hesitation about this judge’s misogynistic attitude is the judge. He considers himself “woke.” For real.
I’ll say this much on that point – because of his behavior on this case, I don’t have to appear before him anymore. No one in my firm does either.
I will stretch myself pretty damn far and even silence myself from the comments I yearn to make for the benefit of a client. But I will not yield to misogyny. Even for military justice.