LOVELACE MUSINGS: THE RELEVANCE OF GRANPARENTAL VISITATION NOW TO MURDER THEN

(It is important that I repeat what follows in this paragraph for those of you who may not follow my blog or my Facebook postings. I was, at all times pertinent and still am,  utterly indifferent to the outcome of the murder trial. Cory's late father and her mother have long been among my dearest friends. Curtis has been a valued colleague in the bar and was often a visitor at my house during his high school years. Christine's grandfather was both a dear friend and a mentor. In various stages of their lives, I have known and enjoyed all four Lovelace children. I have known detectives Gibson and Baird virtually all their lives. I have both collaborated with and opposed the special prosecutor, for whom I have great respect. Finally, I was in a unique position to know that Cory's mother and Cory's daughter played no decisional role in the idea that a murder prosecution would be initiated. They were just sucked along in the vortex of this thing in a comparable, but less drastic, way than Curtis. To say I was not "rooting" for either side is an understatement. My only real emotion in that regard was regret that they all had to go through it.)

An abiding principle of trial practice is that the parties are limited to presenting things before the court which a reasonable person could view as advancing the inquiry as to any disputed issue requiring decision in order for the finder of fact, judge or jury, to decide the matter before the court. This is the capstone doctrine of "relevance."

To use a ridiculous illustration it would not be relevant for either party to ask Sgt. Baird whether he was wearing boxers or briefs when he testified in Springfield. On the other hand it might be relevant to inquire as to whether he was wearing surgical gloves that day he inspected the crime scene.

Now that we have a handle on the doctrine of "relevance" I would like to drill down on things that actually happened during the trial. Cory's mother was asked about the conversation she and Curtis had on Valentine's Day, 2006 when Curtis brought Larson to her. A reasonable person could believe that what Curtis said to her that morning was relevant to either or both the question of whether a murderer had occurred and whether Curtis had participated in it. That she was examined by both sides about this is not surprising.

But, then, before she was excused from the stand, she was asked about her access to her grandsons since 2013 or 2014. No reasonable person could believe that anything about this unfortunate embargo was in any way probative of any matter surrounding the two issues before the jury.  Hell, it started seven or 8 years after the death.

Then, later in the trial, Christine was examined rather extensively on this topic. She even offered an explanation (Blame the lawyers) as to why the grandsons had been embargoed from the grandmother. With all due respect to everyone – and Christine had no alternative but to answer the irrelevant questions – nothing about this topic could possibly advance the inquiry before this jury.

To be fair, lawyers have been eliciting irrelevancies from witnesses since around the time of the Magna Carta. Generally speaking, courts will allow harmless little side trips because the objections, rulings and cautions consume more time than allowing the questions. These little ditties are usually harmless.

That's the rub. These were not harmless. These young men have a devoted sister. They have a loving grandmother. For that matter, they have both a grandfather and grandmother on the paternal side. To be reminded of this isolation is cruel. To be reminded of it when the questions concerning it do not advance the inquiry placed before the jury at all, is gratuitously cruel.  It is scratching a scab that never heals.

It is true that lawyers in the trial of the case or in the trial of an important motion must often do things which hurt people. I can think of four or five times where simply doing my duty hurt opposing witnesses, people I really cared about, by damaging their careers or reputations. I can remember really blowing up people who richly deserved it, including a so-called expert who lied comprehensively about his diplomas and certificates, a ministerial character witness, exposed as a bigamist, and a state's eyewitness who gave the police a false name and was actually in jail, under his REAL name, in Missouri when he supposedly witnessed the alleged armed robbery in Quincy. None of those was gratuitous. They were necessary to do my job.

I have not publicly criticized either side's trial strategy. I definitely did take issue with the behavior of the defense teams "publicist" (whatever that is for an individual defendant) releasing information which should never be in the public domain but I have never uttered a critical word but the overall strategy of either side.

Having said all that, the two lead lawyers could have sat down in less than 10 minutes and agreed that the whole "grandson embargo" issue was not useful in determining either whether a crime had been committed or whether Curtis was involved in a crime. 10 minutes. 10 stinking minutes to avoid profound pain to many good people, none of whom sought this prosecution.

Long ago, military hero and Judge Learned Hand said "sometimes, the law is an ass"

Until this exercise, I thought I disagreed with him.