1.4 Beyond the Court’s Control

1.3 Human Heavy

Book One / 4

Wade sat quietly at counsel tables, motionless but for the steady swirl of his fingers as he spread his own feces in circles on the objects before him. As the judge excused the jurors from the courtroom, he remarked to them that the delay would be brief and trial would resume shortly. It was approximately 10:00 in the morning.

Optimistically, the judge did not at first dismiss the jurors for an early lunch. We waited for the security officers to escort the defendant back to the jail, then for a special janitorial team to clean the tables and replace the defendant’s chair on which the defendant had been sitting.

The defendant’s attorney left briefly to see if he could determine where his client was being held and if they could speak together. He reported back that he had not been able to speak with Wade yet, but he would be moving more formally for a mistrial when we went back on the record.

The judge made a preliminary decision to order a mental health evaluation, and required that the evaluation be completed with a report submitted to the court over the coming weekend. In the meantime, he decided, trial would continue, with or without the defendant present. The defendant was welcome to return to the courtroom, the judge confirmed, should he choose to conduct himself appropriately.


By this time it was clear that we’d be unable to reconvene the trial until the afternoon, and I was instructed to release the jurors for lunch. Over the lunch break I called the sergeant on duty at the jail and requested that he appear in chambers briefly to help address the defendant’s current status.

With both counsel present the judge questioned the sergeant about the defendant’s location and inquired about the accessibility concerns of his attorney. Wade, we learned, was refusing to return to his trial, so we went back on record with the sergeant’s sworn testimony and laid the foundation to proceed temporarily without him. His attorney was still unable to speak with him. Any ruling on his motion for a mistrial would be reserved until a psychologist could conduct an evaluation.

In the meantime, the judge ruled formally that the trial would reconvene as normal after the lunch break, but without the presence of the defendant. The jury would be instructed merely that the defendant had a right not to be present, and that he was exercising that right.

By the time the jurors returned to open court for additional testimony – four hours after they’d been excused that morning – the afternoon was well underway. At the end of that day, the last trial day of the week, the State had placed only three additional witnesses on the stand.

The jury was released for their three-day weekend, and reminded to arrive on time Monday morning in order to resume trial promptly. The judge wanted to avoid any additional delay, he explained, and the jurors themselves were becoming anxious that the trial would now last longer than they had been told. They all had families and employers. Already they would have to make adjustments.


Monday morning brought a rainy, autumn day. The school buses had returned to the city’s streets for the new school year, with their stops and stalls. The shorter days were evident in the darker skies during the early commute.

When I arrived in my office I found three messages from three different jurors, each informing me that they were stuck in traffic but doing everything they could to arrive by 8:45 as instructed. One of them left details of the alternate route she was going to take. A fourth juror arrived late and without a phone message, but apologized repeatedly for both transgressions. By 9:10, however, all thirteen jurors had arrived in the jury room with their coffees and their rush hour survival stories, diligent in their respect of the court’s request to ensure a full day of trial.

Although there had been no trial proceedings the previous Friday, Wade’s attorney had continued to keep us informed on his client’s status as he obtained updates. By the end of the day Friday we’d learned that Wade had expressed an interest in returning to trial on Monday.

On Monday morning his attorney arrived in court early and reported that he had met with Wade over the weekend. Wade had confirmed his desire to reappear and so now, at his attorney’s request, the judge would need to sign a clothing exchange form and a few additional minutes would be necessary to arrange for the delivery of new clothes.


As part of a criminal defendant’s Constitutional right to be presumed innocent, the Fifth and Fourteenth Amendments guarantee the right to appear in trial free from shackles and dressed in regular street clothes to avoid the prejudice associated with appearing incarcerated before the jurors who would judge him. Consequently, if a defendant is in custody he will be brought to court ‘dressed’ for trial, in street clothes rather than his assigned jail uniform.

The Constitution, however, does not guarantee a full wardrobe, and often a defendant has access to only a single change of clothing which he will wear to his trial every day.
In Wade’s case, since he had soiled the only trial clothes he had, his attorney had rushed to round up an alternative set and was coordinating their delivery to Wade before trial resumed. His paralegal was in her office that morning, waiting for my call telling her that the jail staff had processed the change order and would accept delivery of the additional clothing.

Trial had been set to begin at 9:00 and it was now 9:45. I had visited the jurors once already, thanking them for their prompt arrival and continued patience. I assured them that we would start up again soon. I’d then returned to my office to continue working and to wait for contact from the jail.

Rather than a phone call advising us that the clothes could be delivered, however, we received an email to all court staff from the chief criminal judge advising us that the death of an inmate had just been discovered. Consequently the jail was now in lock-down status and the transport of all defendants to their scheduled court appearances, along with all related administrative procedures, was temporarily on hold.

For the remainder of that Monday morning we waited while jail staff addressed the inmate’s death and worked through the backlog of defendants waiting for transport to court. At 11:00 we released the jurors with instructions to return after lunch, and by 11:30 we’d received authorization to have Wade’s new clothes delivered to the jail.

Finally, at 1:30 that afternoon, court reconvened with the judge, both attorneys, all thirteen jurors in the jury box, and our defendant at his table, dressed one more time for trial.

1.5 Esprit de Court