Fecal fingerpainting is the way one witness described it.
The defendant sat next to his attorney at the long, wooden counsel tables inside the courtroom. A fingerprint expert had taken the stand, and the prosecutor was asking him questions. The jurors sat with their notebooks open, listening and taking notes.
In the back of the courtroom a uniformed officer from the jail’s security detail sat waiting for the next break to escort the defendant back to the “tank,” a room in the courthouse where defendants wait to be transported to their hearings and trials. The judge was on the bench in his black robe, observing the witness. It was still early in the day. We were midway through the morning session on the fourth day of trial.
Three days earlier, when the parties had assembled before the chief criminal judge for assignment to a trial court, the defendant had asked that his trial be delayed a few more weeks. His request was denied, and the parties were ordered to report immediately for trial to our court.
At first the defendant refused to be transported down the four floors to our courtroom where we waited for him. Eventually he consented, but he’d arrived with a new motion: to fire his court-appointed public defender. He’d been surprised, he claimed, by the speed with which trial had been set to begin. His attorney hadn’t met with him — he argued further — or if so, then he couldn’t remember the visit due to the drugs he’d been given by medical staff in jail. Also, he had phone numbers of new witnesses who could corroborate his defense, and now he needed time to contact them.
The judge denied the defendant’s motion to appoint a new defense attorney after questioning the parties on the matter, and trial began. A jury was selected and impaneled. Counsel gave their opening statements. Witnesses were called.
Then, on the fourth day of trial, after the fingerprint expert had taken the stand and begun explaining to the jurors how latent prints are lifted and processed, the defendant reached into his trousers through his open fly, pulled out a handful of fresh fecal matter, and quietly began to smear it on the notebook and papers in front of him. His attorney quickly requested a sidebar, then followed the prosecutor and the judge back into chambers.
As the judge’s bailiff I was seated and at work in my own office within chambers, a few feet away from the door into open court. While the judge and counsel huddled next to my desk, I listened to the defendant’s attorney explain that his client was out in the courtroom smearing feces on himself and on counsel tables. He ended his summary with a quick conclusion: his client, by his acts, was moving for a mistrial.
Both the judge and prosecutor had been focused on the witness, and neither of them had noticed the defendant. They were learning of his activities at that moment. The seriousness of the situation and its consequences for a mistrial were clear. The attorneys turned in tandem and headed back into the courtroom, followed by the judge, followed by me.