In its January 7, 1992 edition, Time magazine named Judge John J. Sirica as the Man Of The Year.
"Standing firm for the primacy of law, one Judge, stubbornly and doggedly pursuing the truth in his courtroom regardless of its political implications, forced Watergate into the light of investigative day.......
He simply did not believe that the seven lowly burglars who had wiretapped Democrat National Committee Headquarters at Washington's Watergate complex in June, 1972, were a self starting team working alone. He applied pressure until he got a scandal-bursting response. Once James W. McCord began to talk, a third-rate- burglary came apart at the seams."
I represented Mr. McCord. Here are some of Judge Sirica's actions during the trial, to which I strongly objected, and which I believe, to this day, were improper.
It could not be denied that my client had broken into the DNC headquarters. That's where he had been apprehended. Please note that any and all references to what Mr. McCord told me, do not constitute a breech of the attorney-client privilege. Subsequent developments nullified that relationship and whatever is herein stated is a matter of public record.
Mr. McCord was head of security for The Committee To Re-Elect President Nixon. As such, he took an extremely dim view of the then ongoing anti-Vietnam demonstrations in the nation's capitol. These were not protests, they were riots. Ultra violence in front of the White House. Club wielding, rock throwing extremists. I'm not taking issue with their cause. Their manner was, to him, unnecessarily extreme and constituted a danger to the President. Police presence resulted in severe clashes, but was required to prevent escalation.
McCord, as chief of security, believed these daily outbursts were a potential threat to the President's safety. In light of the professionally orchestrated mode of these uprisings, they were believed, by some, to have been encouraged, if not sponsored, by the DNC. It was in an effort to document this alleged connection, that the break-in occurred. Mr. McCord's defense was predicated upon this belief.
There exists a recognized defense to having committed a crime, known as "duress". As a classic example, if someone holds a gun to your son's head and threatens to kill him unless you agree to drive the getaway car in a planned bank robbery, and you do so in order to save your son's life, you are not guilty of a crime. You know you are breaking the law but you are acting under duress, to protect a loved one. Utilizing that theory, its application to McCord's conduct was the legal theory of his defense. A stretch? Perhaps. It raised, however, a question of fact, to be resolved by the jury.
In the midst of my opening statement, as I was explaining this to the jury, Judge Sirica, interrupted me with an order to come sidebar. He wanted specific details of my theory. He stated that such a defense was " ridiculous" and prohibited me from taking it any further. I argued that it constituted a jury question, but to no avail. The only thing I could think of, in attempting to continue my opening statement, was to espouse general statements of law (burden of proof, presumption of innocence, etc,) to the jurors, who were desperately searching for the missing segue. My prepared theory of defense was no more. Quite a beginning to a heavily media covered case. All in front of the jury, yet.
Later, as the prosecution was nearing the completion of its case-in-chief, the Judge called defense attorneys into his lobby. The court stenographer was present. Judge Sirica turned to me, pointing his finger, and loudly and sternly directed me to tell my client that it was still not too late. He then, immediately, asked me if I thought his remark was a threat. I was taken off guard. I instantly responded, "No, Your Honor." He then addressed the co-defendant's (G. Gordon Liddy) counsel and posed the same question. "No, Your Honor." He ordered the transcript of this lobby proceeding to be impounded. It was not for public consumption and could not be referenced by anybody, at any time, until the impoundment order was lifted.
That evening, I second-guessed myself to hell and back. Of course that had been a threat. Fess up to me or a grand jury, right now. If you don't, you'll be hit with the maximum sentence.
Here was a trial judge openly expressing his predetermination of the defendants' guilt, coupled with a threat, should they refuse to incriminate themselves and others. And I hadn't pushed back. Bully wins. Coward loses. For my client's sake and my own self respect, this had to be the subject of an attempt to rectify.
The next morning, I told the clerk that I wanted a lobby conference before the jury was brought in. Judge Sirica may have thought I was about to announce my client's acceptance of his "offer".
I told him that I had rethought the matter; yes, his remarks did constitute a threat; and that he should recuse himself from the case and immediately declare a mistrial. The atmosphere was not exactly serene. Contempt time in the can was looming. But, that didn't happen. The Judge reddened, denied my requests, as I descended to yet a lower rung on his shit-list. At least, I could ease up on myself.
It was time for closing arguments. What could I say? There was only one thing I could reference.
One of the prosecution's witnesses had been a member of the Administration whose job had put him in daily contact with McCord.When his direct examination concluded, Judge Sirica recessed for lunch. As we exited the courtroom, I spotted the witness walking down the corridor with his lawyer. I went up to them and asked counsel if I could ask his client a few questions. "You may, unless I advise him not to."
Fair enough.
"Sir, if I asked you to describe my client's reputation within the Committee To Re-Elect The President, what would you say?"
"Excellent. A dedicated public servant."
"And what is your opinion of his job performance?"
"The most competent and reliable security expert I've known."
When court resumed and the witness retook the stand, I elected to cross-examine.
Same questions, same answers. The U.S. Attorney and Judge Sirica dropped their jaws. How could I have dared ask those questions of an adversarial witness? Was I one of the ominous co-conspirators yet to be revealed? A simple, non-complex and permissible pre-lunch encounter was never to be considered in the paranoid atmosphere that had permeated Washington.
My closing was centered on that cross-exam exchange. I kept repeating that "my client is not a criminal."
I kept pointing out that every crime required a criminal intent and my client didn't have it. He was not a criminal. Somehow, I argued for 45 minutes. Weak in substance but strongly presented. And, I had the jury's attention.
When I concluded, Judge Sirica called a 15 minute recess. The jurors rose and began to file out. This caused them to walk by the bench. As they did so, the judged said, to each one of them, "Keep your eye on the ball. Keep your eye on the ball."
To me, his meaning was clear. Don't let this medicine man pull the wool over your eyes. His client is guilty. Don't be taken in by smoke and mirrors.
My objection and renewed motion for mistrial was, not surprisingly, overruled.
Judge Sirica passed away in 1992. As a result of his prophetic conduct of the burglary trial and all subsequent "Watergate" trials, he has been universally hailed and saluted. I in no way seek to detract from his heralded legacy. I simply point out that, as a criminal defense attorney, it is my opinion that his attitude was inconsistent with the appearance of an impartial judge. It is not unusual for a judge to entertain a subjective conclusion as to the guilt or innocence of a defendant. But to publicize it as his compass for navigating a trial, is difficult for me to digest.
I am, no doubt, in a decided minority. Perhaps, that is as it should be. It cannot be denied that he was sincerely devoted to the administration of justice and that he is remembered as a patriot. In that sense, I deem myself fortunate to have been a witness to history being made.
May Chief Judge John J. Sirica rest in peace.
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