Putting your hands over your ear and, in a sing song voice, declaring “na, na, na, na I’m not listening” seems like a childish way to deal with information you don’t want to hear, right? Something you wouldn’t expect from professionals. But a federal judge has updated the move for the courtroom, with all the immaturity of the version you remember from being a kid.
Elizabeth K. Dillon, a federal judge for the United States District Court for the Western District of Virginia, reportedly let a defense attorney make arguments to an empty bench after she walked out of the courtroom. The attorney, Benjamin Schiffelbein, was attacking a deputy’s credibility when Judge Dillon put a stop to the line of question — Schiffelbein’s client is facing charges of possessing a firearm as a felon and the deputy was testifying about how he found the weapons. The Roanoke Times describes the bizarre scene:
Dillon said the defense was free to file a written proffer, but that her decision to sustain the government’s objection stood.
“I know you have an issue if the court doesn’t allow you to argue everything properly,” she said. “And I want to give you the full opportunity to make that argument, Mr. Schiffelbein.”
“You’re welcome to file anything in your brief with regard to following up on this motion,” she said. “But we’re moving on with this hearing today.”
An unexpected departure
Again, the defense persisted.
Dillon then “quite unexpectedly rose from the bench and left the courtroom with the parting instruction … you may proffer that while I’m out of the courtroom,” Schiffelbein’s objection stated.
According to the transcript of the hearing, the judge said that she was going to take a recess. But everyone else remained in their places, and Schiffelbein asked if the hearing was still on the record. The clerk informed him that it was.
Schiffelbein has also filed a written objection, arguing that though he made the proffer, his client “watched his attorney do so (as instructed) in a courtroom devoid of the person for whom the argument was intended.” But since proffers are generally made for the preservation of an appellate record, law professor Ron Bacigal said, “I think it’s unusual, but I’m not sure it makes any difference.”
Regardless, it sure doesn’t, ahem, inspire trust in the profession.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).