66th Installment. Threat to advocacy from overdeterrence — The Mark Brennan case

First in Mark Brennan series
Judges who minimize law's adversarial element will use the state bar to punish successful attorneys. The judge and complainant in a Colorado case, similar to the Kay case in California, exposed the jurisprudence that underpins disciplining for zeal. This first Installment in the Mark Brennan series sets out the case background.

Attorney Mark Brennan seemingly won his client a $1.2 million age-discrimination award against his employer the City and County of Denver, but Judge Blackburn declared a mistrial based on Brennan's allegedly prejudicial misconduct, mostly speaking objections and the like. A $850,000 settlement ensued. The judge also complained against Brennan to the state bar. The case is similar to the Kay matter in California: 1) respondents had been successful in court; 2) respondents conflicted with a powerful embroiled judge, who caused the courts to treat the matter as political, instead of legal; 3) respondents had long, successful careers without prior discipline; 4) courts have denied respondents discovery and other evidentiary rights concerning bar deliberations; and 5) respondents received no final judgment against their conduct in the underlying case. (But the cases aren't identical. First, overt procedural irregularities are present in the Kay case because Kay was defaulted, Brennan wasn't. Second, the kinds of character attacks each faces is different, in that Kay has never been accused of violence; but the character attacks against Brennan, too, may be inaccurate.)

The Brennan prosecution admits that Brennan's specific acts don't constitute misconduct, but it argues that the totality of evidence proves it: even if the prosecutor can't articulate a definition, he knows misconduct when he sees it! Brennan's prosecution and Kay's portend that attorney-misconduct's vagueness will compound disbarment's ultimacy to overdeter, suppressing vigorous trial advocacy. Unsure of the line between aggressiveness and misconduct, advocates become obsequious, knowing a mistaken speech register risks their livelihoods. A hostile judge will crush a case, augmenting judicial power the hidden purpose of disbarring attorneys for trial misconduct when borderline misconduct non-normative only in amount is alleged. Attorneys gamble on distinctions and accept the reasonable risk of mistrial. Good trial attorneys readily adjust their behavior to new trial contingencies, but none will venture on the extraordinary risk of disbarment.

While the Brennan case lacks the Kay case's procedural infirmities, it contains an oddity. The judge declared a mistrial only after the jury rendered its verdict. The only new fact was how long the jury deliberated, three hours, for an eight-day trial. The judge implies the duration was excessively brief, but, while the law allows declaring a mistrial because the jury deliberated a disproportionately long time, Colorado's Supreme Court ridiculed declaring mistrial for brief deliberation. (Sepulveda v. People (Colo. 1961) 361 P.2d 625, 626.) Even if the judge can justify mistrial based on his mere change of mind, his close decision fails disbarment proceedings' clear-and-convincing-evidence test.

Next in Mark Brennan series: The jurisprudence of judicial vindictiveness