Jardine: Mouthy defendant is trouble

You're sitting in a courtroom as a defendant charged with killing a cop, knowing you could get the death penalty if convicted.

You interrupt the proceedings, and the judge tells you to be quiet.

If you're smart, you'll:

A) Keep talking anyway

B) Apologize and then be quiet

C) Just shut the heck up

Throughout the numerous hearings, the baby steps leading to the scheduled January trial of Columbus Allen Jr., the defendant repeatedly has broken protocol by speaking up in Stanislaus County Superior Court. He's sparred with Judge Hurl Johnson while demanding new attorneys and input in his defense.

At one recent hearing, Johnson had enough.

"I said you be quiet, that means you be quiet," Johnson told Allen. "That means you shut up."

In an earlier hearing, Allen tried to address the court, asking Johnson, "Is my opinion relevant?"

"No," Johnson replied.

That stated, if the case goes to trial in January — nearly four years since Allen was accused of shooting California Highway Patrol officer Earl Scott to death along Highway 99 in Salida — will the bickering affect the outcome?

You could argue it already has, and to Allen's favor. Johnson granted a change of venue based in part on media coverage of the case, agreeing that Allen could not get a fair trial in this county. Some of the coverage focused on Allen's courtroom outbursts, including his complaints about the performances of his revolving door of lawyers until John R. Grele of San Francisco took over his defense.

The volume of stories, columns and comments posted on modbee.com, along with letters to the editor, helped Grele get the trial moved or jurors imported from another county.

While the defense claimed judicial bias in trying to remove Johnson from the case, he has been exceedingly fair. He's scolded prosecutors and defense attorneys as readily as he's stuffed Allen for his unsolicited comments.

Without question, defense attorneys want their clients to remain quiet and calm, said Dean Johnson, a former prosecutor and now a criminal defense attorney in Redwood City. Getting them to do so isn't easy.

"One of the neglected arts among trial lawyers is client control," said Johnson, no relation to the judge. "When I have a male defendant who is used to being in control of his life, an aggressive guy, a like-to-take-control guy, I tell them this is not their playing field, not to mention things that come out of your mouth that can hurt your case. I tell them in so many words, 'Shut up!' "

As a prosecutor, though, he loved it whenever a defendant spoke up.

"You just want to sit back and watch the show," Johnson said. "Every time he opens his mouth, he ticks off the judge. And if the jury's there ... ."

Mostly, Johnson said, defendants who talk in court complicate and ultimately delay the proceedings, which certainly has happened in Allen's odyssey through the legal system.

Certainly, a judge can make a defendant's life miserable, not that being in jail while awaiting trial is a picnic. Hurl Johnson could order Allen gagged or add contempt of court charges. He hasn't.

Judges in criminal cases have significant leeway in determining whether certain pieces of evidence are admissible, along with other rulings.

"There are little ways in which having tried to jerk the judge around can come back to haunt you because of his discretion," said Michael Vitiello, a distinguished professor and scholar at the University of the Pacific's McGeorge School of Law in Sacramento. "At the end of the day, there's that wonderful 1960s expression, 'What goes around, comes around.' There may be all sorts of rulings on evidence, and you're cooking your own damned goose by taking on the system."

Appellate courts set the bar high when it comes to proving a judge used "abusive discretion," Dean Johnson said.

"You'd have to show just that — that the trial judge's decision was so far off that no trial judge could make that ruling under any circumstance," he said.

Even so, no judge wants a verdict overturned on appeal because he misused the law to get revenge on a mouthy defendant.

Superior Court Administrator Mike Tozzi said that in his 27 years on the job, he's never known a judge to take personally the comments a defendant made in court.

"They go on and do their jobs," Tozzi said. "I've gone to lunch with them, and I've never heard them sit and talk about what a jerk this guy or that guy was in court."

Juries, though, are another story. Defense attorneys generally try to keep their clients from taking the stand. But a belligerent defendant can do just as much damage from the defense table.

The more astute ones know when to clam up, Dean Johnson said.

"They're often extremely manipulative," he said. "They're going to push the envelope as far as they can. But once they see it's not in their best interest to be mouthing off, they shut up."

"When you have outbursts in a trial, think about what the defendant looks like to a jury," Vitiello added. "They're looking to see if the defendant is capable of being violent or out of control. He's not going to help himself if he's going to act up and defy the judge."

Jeff Jardine's column appears Sundays, Tuesdays and Thursdays in Local News. He can be reached at jjardine@modbee.com or 578-2383