As the trial of disbarred attorney Ira Hatch on 46 felony charges of grand theft, racketeering and money laundering meanders through a fourth week, the most unusual – and tedious — element of the case seems to be the style of defense attorney Gregory Eisenmenger.
The Viera-based lawyer does not seem to be scoring many points with the judge and very possibly the jury with his client looking at the real possibility of spending a long time behind bars.
The litigator’s courtroom technique at times appears to be lulling the jury of six plus four alternates and the sitting judge into a stupor with his frequent objections over minute points, long rambling cross-examinations that are often off point, and his failure to tie up long jags of questioning into salient arguments.
He has taken to prodding certain witnesses – so much so that several have lashed back, giving him dirty looks and sarcastic remarks. He has subjected several, some of whom lost jobs or money with the closure of Coastal Escrow, to questions so bizarre and tangential that some are left perplexed on the witness stand.
“I’m not sure what you are getting at,” a confused former Hatch bookkeeper, Mary Kincaid, said to Eisenmenger last week during her second tedious day of questioning about bank accounts and office procedures.
This snap occurred after Eisenmenger brought up Kincaid’s romantic relationship – 29 years ago – with a coworker. Senior Judge James Midelis, however, would not allow Eisenmenger to dredge up the matter, calling it irrelevant.
When the state questions witnesses, Eisenmenger regularly picks and parses the wording of each and every question, objecting, dissecting, until the subject is so confused that the witness is hard pressed to remember what was originally asked or why.
The more Eisenmenger throws himself into an argument, the higher the pitch of his voice soars. Occasionally appearing unprepared on cross-examination of witnesses, he often takes time in-between questions to review documents, to consult with Hatch and to flip through yellow legal pads and file folders.
Minutes sometimes pass during these pregnant pauses as the momentum of the testimony dissipates. It’s not clear what the purpose of these delays may be, but by the time he finishes a cross-examination, Eisenmenger’s point — if there ever was one — is often lost on anyone watching.
“I don’t even remember what the question was,” Vero attorney Louis B. “Buck” Vocelle Jr. told Judge Midelis last week during a particularly excruciating session where attorneys argued whether or not Vocelle would be permitted to answer a query from the state.
“Neither do I,” Midelis responded, eliciting a round of laughter from the jury and the handful of observers in the gallery.
At one particularly slow-moving point in the trial, Midelis reflected on Eisenmenger’s estimate that the trial would take three months.
“If we keep going at this rate, this will take a year,” Midelis said.
If Eisenmenger isn’t out to sway the jury, in the words of one witness, what exactly is he “getting at” by what seems to be a pedantic and unfocused defense of Hatch?
One reasonable possibility might be a future appeal.
During jury selection, Eisenmenger told potential jurors that they would hate him before the trial was concluded. At the time, the statement was received as a joke, but it now appears to have been a bona fide warning.
Annoying or confusing jurors is one thing, but if the machinations also irk the judge into making statements that could be construed as biased against the defense, it could prove a useful tactic.
Though Eisenmenger is somewhat of a fish out of water at the Indian River County Courthouse, his history shows he appeals nearly every conviction.
Judge Midelis seems keenly aware that Eisenmenger may be seeking to goad him into a ruling that could become the crux of an appeal. Last week alone Midelis stated at least three times that his reasons for particularly cautious rulings or actions were because he does not want to give Eisenmenger any ammunition to use in an appeal.
In order to lay the groundwork for an appeal, Eisenmenger is careful to get every challenge on the record — twice if once isn’t good enough. He frequently challenges witnesses’ statements or documents put forth by the state, citing deficient disclosure of information.
The sky’s the limit for appeals with Eisenmenger as Hatch’s counsel. Eisenmenger is certified to try and appeal cases up to the very highest level of our judicial system — in 2006, he was admitted to practice law before the U.S. Supreme Court.
