"Are You Staring Me Down?"

Via the Huffington Post:

Chaos enveloped Donald Trump’s criminal trial in Manhattan Monday afternoon after a defense witness verbally tangled with Judge Juan Merchan, causing the courtroom to be cleared ― and earning a severe rebuke in return.

The drama began when the witness, an attorney and longtime Rudy Giuliani associate named Robert Costello, appeared to be upset at Judge Merchan for sustaining a series of objections from the prosecution about his answers.

. . . [T]he judge asked the jury to leave the room while instructing Costello to remain seated.

“I want to discuss proper decorum in my courtroom,” Merchan told Costello.

“I’m the only one that can strike testimony in this court,” he said. “You don’t give me side-eye, and you don’t roll your eyes. You understand that?”

Wait a moment. I'm not an attorney, but I'm a big true crime fan, I've watched lots of trials on TV from Perry Mason onward, and I've seen several trials in person as a juror and in the audience. What puzzled me about this exchange right away is that the judge and the witness both face in the same direction, toward the attorneys and the audience beyond them, as shown in the sketch above. The judge wouldn't normally see the witness's face, much less what he's doing with his eyes. But let's go on:

Costello proceeded to glare at the judge.

“Are you staring me down?” Merchan asked. The judge then cleared the courtroom, including members of the press, who were hastily shuffled into an adjoining hallway.

Based on my experience watching court sessions, and as illustrated in the sketch above, it would be physically very difficult for a witness to stare down a judge. The witness would need to turn his head over 90 degrees toward the judge and look up at him, and the judge likewise would need to turn his own head 90 degrees, look down, and hold the witness's gaze. At minimum the witness would be trying to stare the judge up, not down, tacitly acknolwledging the judge's superior position, which wouldn't work in terms of body language. Something's wrong here.

Alan Dershowitx, who was attending the trial, made things much clearer on Hannity last night (via partial transcript at RedState):

I sat in the front row, literally just feet away from where all the action occurred. I rolled my eyes when the judge made some rulings that were absurd. Any first-year evidence student would understand that he was making biased rulings in favor of one side.

I stared him down, but Costello didn't. He acted like a normal witness and the judge went berserk. The judge violated Trump's constitutional right to a public trial by kicking the media out of the courtroom. I don't know why I wasn't kicked out, and I heard him lecture Costello... "What you did was contemptuous. You looked at me contemptuously...”

. . . I'm sure Costello was trying to hide his contempt for the court, but the judge had such a thin skin that he threatened him. He said he would strike the testimony and hold him in contempt if he rolled his eyes again. You have a constitutional right to roll your eyes and to stare at anybody. It was absurd!

So OK, that begins to clear it ip. Nobody was twisting his neck to stare at anybody, Dershowitz, probably the most distinguished living attorney in the country, was sitting in the front row at the trial and rolling his eyes at the judge. The judge blew up -- in Dershowitz's words "went berserk". In the version of another attendee, Paul Ingrassia, Merchan then shouted "GET OUT OF THE COURTROOM, NOW! GET OUT OF THE COURTROOM!"

Merchan grows irate, begins EXCORIATING Robert Costello on the stand for making a few off-handed remarks and rolling his eyes during the testimony.

Merchan: Are you staring me down right now?

Costello: I'm not.

Merchan: GET OUT OF THE COURTROOM, NOW! GET OUT OF THE COURTROOM!…

— Paul Ingrassia (@PaulIngrassia) May 20, 2024

Except that Merchan made it clear that Costello was to remain seated in the witness box to be admonished while everyone else left. But the order to clear the courtroom didn't work, only about half the people left, and Dershowitz stayed. I strongly suspect that the order to get out of the courtroom was in fact directed at Dershowitz, who likely knew better than anyone that he was perfectly entitled to stay, and that's what he did, which only infuriated Merchan more.

As I've been saying since last October with Judge Engoron, Trump's strategy, at least in all the New York cases, is based on the Chicago Seven defense, something Alan Dershowitz recognizes, and Dershowitz worked for the defense on that case. Both Trump and Dershowitz recognize Trump can't get a fair verdict in any of the New York trials, so his strategy is to provoke the judges into losing their tempers and making reversible errors -- or, from a media standpoint instead of a legal one, to make monkeys of themselves in front of a national audience.

Clearly this has worked with Judge Merchan. Consider the pressure that's been building on Merchan. I don't think he envisioned that the trial would get the national attention it's received -- but as a direct result of his threat to send Trump to jail for contempt, which itself was an outcome of Trump's Chicago Seven strategy, US senators, the Speaker of the US House, and now the most distinguished living US attorney, Dershowitz, have been attending the trial in clear support of Trump. And the most distinguished living US attorney, Dershowitz himself, rolled his eyes at the judge and stared him down.

The trial for Merchan is actually going worse for him than the Chicago Seven trial went for Judge Julius Hoffman, who continued his career after the Chicago Seven case, although he was eventually sidelined by being given no new cases to preside over. Judge Merchan, now the subject of ethics complaints and potential misconduct allegations, likely won't fare as well. He's got to be recognizing that the people involved in the highly political cases against Trump are coming under scrutiny, and like Fani Willis, not only are their particular cases collapsing, but other corruption and misconduct are coming to light.

I don't think any of this is what Merchan had in mind. By threatening to put Trump in jail for contempt, he played into Trump's hands, and he's gotten in way over his head.