Kessler Bids Farewell to Courtroom Troops

June 21, 2005 5:43 pm by Gene Borio

“I haven’t any idea when I will come to an opinion.”

And with those words from Judge Kessler on Jun 21, 2005, 11:40 AM, in a courtroom denuded of at least one large Defense table, all attorney computers, various trailing rat nests of wires and cablings, the large rough-rigged video screen (upon which documents gave up their secrets, young models tried to sell us cigarettes and Mr. Welch glowered at us all the way from Australia), half the Defense attorneys, virtually all the observing attorneys and analysts, all but a few people from both sides’ support staffs and just a few reporters, the Great Tobacco Trial came to an end–at least for the foreseeable future.

We watched the entire 50-year history of the Tobacco Wars parade before us in person, each participant grilled by the finest lawyers in the country. Playgoers of past eras saw Keane, MacReady, Garrick. Watching these lawyers “at the top of their game” was like seeing the great Shakespearean actors of history, all at their peaks.

Thrilling, tedious, momentous, and challenging intellectually, morally and legally, the trial stretched us all in ways we never imagined, and we were privileged just to be in the same room with this assemblage of astoundingly smart people.

The below, as best as I can transcribe it, is Judge Kessler’s Farewell:

Well, I think this is it. I don’t believe I will see you until the opinion.

I know everyone is not here…. it’s fair to say it has been a long hard trial–long for sure.

I told my clerks and interns, they are never going to see better lawyering than in this trial.

It has been a pleasure.

I particularly enjoyed–this applies to the government. I know the defense team is made up of very, very experienced lawyers, and they are at the top of their game.

Government lawyers are by definition experienced, and some are less experienced. It has been a pleasure to see a real progress on the part of some of the government lawyers, I’m sure it has been a good experience for them. I hope I wasn’t too intimidating. It is very good to see that, and to see lawyers get more at ease and used to the courtroom and more adept at examination and cross-examination.

I’m not privy to private communications, but I’ve seen counsel being very, very cooperative, and civil. There are so many complicated logistical arrangements.
Certainly, I observed a great effort to make this trial go forward, and much cooperation on both sides.

I don’t have to spend a lot of time ironing out issues. This trial was conducted in an exemplary, professional way, and it was a pleasure on my part

This was difficult substantively, that’s for sure… very, very tough legal issues. At least 2 case books could come out on the evidence and civil issues.

It was not difficult in terms of day-to-day communications in working with all of you
Now everybody should go back to their families and practices–mostly their families.

I haven’t any idea when I will come to an opinion.

Reporters afterwards wondered among themselves who the “improved” attorney(s) were.

Certainly she could not have meant the support staff, even though the spectacularly helpful Karisma Gilmore was looking quite lawyerly today, in her sleek black suit. All through the trial, the beauteous Ms. Gilmore, when not out stealing movie roles from Halle Berry, studied for and passed the Maryland bar, lovingly ministered to her husband and 2-year-old girl, and provided, I’m sure, dedicated and energetic support for the DOJ team. The attentive listener struck by the peaceful whisper of windchimes tinkling nebulously in the distant aether of Courtroom #19 could sometimes trace the source to her earrings. She graced the room with style and intelligence. Most charmingly, she laughed at my jokes–an act of true charity.

As for the “improved” attorney(s), we pretty much settled on one for sure, Sharon Eubanks. And indeed, I well remember at the beginning of the trial how Judge Kessler, it seemed to me, would look at Ms. Eubanks with an expression that read, “Look, I know you’re the smartest kid in the class. But watch out you don’t overstep yourself!” I thought to myself in the last few months that Judge Kessler no longer had that look, but rather attended to Ms. Eubanks just as she would to any tobacco lawyer. High praise indeed. And for the rest of the lawyers, by the end of the trial there were virtually none of the “I don’t know what the government thinks it’s doing!” comments that punctuated proceedings during 2004.

Judge Kessler? Don’t even ask. She’s my choice for Chief Justice. Just bump her up ahead of all the other Justices on this strange court today, the first in history to leapfrog up to the top position, so she can help provide a guiding light via her analytical intelligence and heartfelt humanism. I promise you, she’ll be on the Supreme Court shortly–just after Democrats overwhelmingly control the Executive and Legislative branches, and bad people sit freezing in Hell for a month of Sundays.

But don’t ask her what she thought of Britney Spears’ outfit last week at the Emmys. Don’t even ask her to have the slightest familiarity with much-aired movie classics like “It’s a Wonderful Life.” (Britney, and the role of the angel Clarence in a “Counterfactual World” came up in the trial, along with the quickly-squelched KoolMIXX CD) No, there is too much on her plate to find time to deal with popular culture, and if she has a guilty pleasure other than a weakness for long strings of beads, I’m sure it takes very little time out of her astoundingly busy day. “Happy Warrior” is a term that seems coined just for the few amazing people in the world like her.

“Happy Beaded Warrior,” is how I will always think of her.

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