THE COURTROOM WAS PACKED WITH LAWYERS AND PARALEGALS. I thought I noticed a glint of surprise in Jordyn’s eyes at Maggie’s presence, but I could have been mistaken. There was no sign of Duke or Gloria. Brian met us on the way in and told me that no motions or briefs had arrived at the office. Before I could ask, he added that the clerk of court had told him that several had been filed but were under seal. When he asked to see them, she said he should bring it up with the judge—not a good sign.
More troubling, David was nowhere to be seen. I had hoped to have a brief conversation with him before we were called to order. I asked the marshal where he was and got the now familiar response: “Bring it up with the judge.”
The courtroom grew quiet when the clerks came into the room and the marshal told us all to rise. Judge Moorman blew into the courtroom and took his seat. He banged on the gavel and started to speak but I was quickly on my feet.
“Your Honor, I must inquire about the lack of presence of my client.”
He peered over his glasses and replied, “I presume he is in his cell. Today’s hearing is procedural in nature and does not require his presence.”
“I must object, Your Honor.”
This time he interrupted me. “Objection noted. Take a seat, Mr. Patterson.”
“But Your Honor…”
“Take a seat, Mr. Patterson. You will be afforded plenty of time to speak soon enough.”
He paused, then asked, “Is Mr. Madigan present?”
From the back of the courtroom, I heard a good bit of commotion as the door opened and closed. “I’m here, Your Honor. I apologize. I’ve never seen such traffic.” Duke rushed up to join us at the table. Thankfully, Gloria was a no-show.
Moorman frowned but began to read from his notes. “I have reviewed Gloria Ruple’s motion to intervene and the plaintiffs’ response. The motion is denied.”
No surprise there, but Duke was on his feet.
“Your Honor, may I be heard?”
“No. However, I have decided that since Mr. Patterson has no objection to your intervention, you may join him inside the rail, where he can have the benefit of your wise counsel. At subsequent hearings or at trial, you may not address the court or question witnesses, but you may consult counsel.”
“But…”
“Sit down Mr. Madigan. May I also remind you that the gag order applies to you until such time as the order is lifted.”
“Clever,” I thought. Duke is restrained from any of his antics, but he can’t argue he wasn’t able to provide input.
The judge turned to me. “Mr. Patterson, your request for a jury trial is denied.”
Wow, I didn’t see that coming.
He continued, “I have studied your brief, but I find Ms. Duarte’s argument more persuasive.”
“I wasn’t aware that Ms. Duarte had filed a response.” I glared at Jordyn who smiled and responded.
“It was filed under seal, and because of the sensitive nature of what we disclosed, we decided to seek the court’s guidance about providing counsel with our argument.”
“And how did you seek the court’s guidance? Not by ex parte communication, I hope.”
“Certainly not,” she bristled. “We filed a motion asking for guidance, also under seal. We are dealing with highly sensitive matters that touch on national security. I would think that you would appreciate my clients’ position.”
I wasn’t happy. “Who decides what touches on national security? Your clients?”
“Enough, counsel. You will behave with decorum in my court. My decision on a jury trial is final. I will rule on Ms. Duarte’s motion for guidance in due course. I will not allow you, Mr. Patterson, to accuse this court of ex parte communications. All communications with this court are made in open court or by written motion.”
It would fall on deaf ears to explain to the Judge that when you file a motion under seal and don’t provide opposing counsel a copy of your motion, you are in fact engaging in ex parte communications. Besides, I had bigger fish to fry.
“I apologize, Your Honor. I spoke out of school, but I’m somewhat frustrated by counsel’s reliance on the phrase ‘national security.’ That said, I am obligated to advise the court that I will appeal your order denying my request for a jury trial and will seek a stay of all proceedings until the DC Court of Appeals has an opportunity to decide the matter.”
I waited for a reaction from the judge and Duarte. Naturally, Moorman spoke first. He was all smiles.
“I appreciate the heads up, Mr. Patterson. But I hear someone threatening to file an appeal almost every day. Do what you must, but if you’ve checked, you know I have a pretty good record on appeal.”
I fudged. “I have, and I’d say it’s better than pretty good. Nonetheless, and with all due respect, Your Honor, your order significantly affects how we proceed from this point forward. My client and I feel strongly about a jury and the merits of our motion.”
Jordyn was in a bind. An appeal would slow down her freight train, for how long no one could know. Moreover, the DC Court of Appeals was a totally different animal. They might feel differently than Moorman about gag orders and “national security.” They might rule against her motion that all filings be made under seal, and that meant the press would surely appear on the scene, raising questions her clients would rather avoid.
She did what any good lawyer does when faced with a dilemma.
“Your Honor, I wonder if I might have fifteen minutes with co-counsel.”
“Certainly, counsel. The court will be in recess for, let’s say thirty minutes.”
He gave the sounding block a good thwack with his gavel and left for chambers.
While Jordyn and twenty other lawyers huddled, (it looked more like a rugby scrum than a huddle), Duke and I formed a two-man huddle of our own.
“The appeal was quick thinking, Jack,” he said. “Wonder what she’s up to now? No telling what she’ll do next, that’s for sure. I guess my days at your table are over. No lawyer wants someone looking over his shoulder.”
“I don’t know about that. Let’s meet at Barker’s after court. I have a few ideas, and if things happen as quickly as I expect, I’ll need all the help I can get.”
I couldn’t believe I had taken his bait, but I did have some thoughts about a role Duke could play. He was a wild card, but for now he was part of my hand.
I noticed Stanford walking over to our table, huddle over.
“Got a second, Jack?”
I had no idea why he was even here, especially sitting at plaintiff’s table. The federal government had no role in the civil litigation. Why would he so blatantly take the plaintiffs’ side?
“Sure,” I responded, waving at the empty courtroom. “What’s up?”
“Maybe there’s a compromise to be had here. What if I arranged for you to have limited access to your client. In exchange, you won’t appeal the judge’s denial of your request for a jury. You could raise the issue after the trial, after the verdict has been rendered.”
I couldn’t believe my ears. The government was conspiring with business to get me to drop my appeal, and in exchange they were holding hostage access to my client. What had the world come to? I could feel Maggie’s glare and took a deep breath. There are places for losing one’s temper, but a courtroom is not one of them.
“I’m sorry, William. Good try, but waiving a jury trial is a show-stopper for me. I’ll take the issue all the way to the Supreme Court if I must. Jordyn knows I’m right on this issue, and you should be ashamed of yourself. Go back to Justice and tell a few of the career professionals what you just proposed. Find me even one who thinks you did the right thing.”
His face turned beet red with anger, but he, too, held his temper. He turned without a word and walked back to his huddle.
Maggie said, “You’ll pay for that, but you were right. I’m surprised you kept your cool.” Duke nodded in agreement. I relaxed a bit and gave her a smile.
The huddle finally broke up, and Jordyn told the clerks that she was ready when the court was. A few minutes later, the judge returned and waved in her direction.
She rose and said, “The plaintiffs withdraw their objection to a jury trial, Your Honor.”
Moorman’s eyebrows rose above the rims of his glasses.
“Does that mean you are asking to the court to withdraw its order, Ms. Duarte? If I my ask, what is the reasoning for your change of heart?”
I looked up, more surprised by Moorman’s stern tone than by the plaintiffs’ request.
“Your Honor, although without merit, Mr. Patterson’s decision to appeal your order and seek a stay of these proceedings creates a real hardship for our clients. His appeal will unnecessarily delay a resolution of this case. My clients feel that although a jury is neither necessary nor warranted in this complex litigation, such a delay creates an increased national security risk.”
I was ready to blow my top. Maggie squeezed my knee tightly to keep me quiet. National security, my ass. I waited for the judge to call on me for a response, but apparently, he didn’t think my opinion counted for much.
“In that case Ms. Duarte, we will set this case for a jury trial. I will advise counsels of the date soon. I recommend both parties review my standing order regarding jury trials and how I conduct voir dire. Please pay attention to the prohibitions aimed at jury consultants who invade the privacy of potential jurors. In case you’re thinking of appealing this order, Mr. Patterson, the DC Court of Appeals has already given my standing order its blessing.”
I didn’t think I deserved that slap, but I had a jury trial. My mouth remained shut, but I was surprised when Moorman said, “If there is nothing further, court is adjourned.”
I jumped to my feet, “Your Honor, what about access to my client and a bond hearing?”
Moorman scowled, “I don’t enjoy repeating myself. If you want anything from this court, file a motion. But a word of advice, Mr. Patterson. You got your jury trial. If I were you, I’d quit while I was ahead.”
With that he retired to chambers.