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Eisenmenger's meandering courtroom style BY LISA ZAHNER - STAFF WRITER (Week of June 24, 2010)

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 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.  

Immediately after, Midelis recessed the court and tore off through a side door looking exasperated.  

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.  

Midelis routinely thanks the jury, apologizes to them for all the false starts and the frequent trips in and out of the courtroom as attorneys need to wrangle out of earshot. It’s not uncommon for jurors to be removed from the courtroom a half-dozen times -- in addition to breaks and lunch -- in the course of a day.  

“Sorry to keep shuffling you back and forth, but it’s necessary under the rule of law,” Midelis told the jury last week.  

Twice during the trial, Midelis has jokingly asked reporters covering the case if they thought the proceedings were exciting stuff. On June 11, after a particularly mind-numbing week of testimony, mostly about documents in client files and the intricacies of the bank records of Hatch’s former companies, Midelis empathized with jurors.  

“Please, please come back Monday,” Midelis pleaded with some humor as he excused the jury for the weekend.  

On June 15, when Judge Midelis recessed for lunch, he said to the jury and a witness returning for more questioning, “You can’t escape, OK? We appreciate your service.”  

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.  

Though Judge Midelis last week called himself the “umpire” in this case, the jurors are the ultimate bosses, as they will decide Hatch’s fate. 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?  


Prepping for an appeal

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.  

In late May, Eisenmenger tried to have Judge Midelis -- the third judge assigned to the Hatch case in 29 months -- removed from the case for an attitude of bias. When Midelis refused to budge, Eisenmenger’s partner Robert Berry filed a motion in District Court to ask for the recusal. It was flatly denied.  

Though Viera attorney Eisenmenger is somewhat of a fish out of water at the Indian River County Courthouse, his history shows he appeals nearly every conviction.  

Even when the state has what could be seen as a bulletproof case, as was the scenario with former state Rep. Bob Allen, Eisenmenger and his legal team tried twice to overturn that conviction for solicitation of prostitution. The court found Allen guilty of offering an undercover police officer $20 to perform a sex act on the male police officer in a public restroom.  

After Allen’s November 2007 conviction, efforts to appeal continued in Brevard County Court and District Court through December 2008.  

According to published reports, Eisenmenger alleged prosecutorial misconduct, claiming that prosecutors made arguments that misled the jury and denied Allen a fair trial. Ultimately, in that case, the courts denied an appeal. Allen was also removed from his office in the Florida House of Representatives.  

In 1999, Eisenmenger appealed the conviction of daycare worker Ann Elliott Barber on aggravated child abuse charges to the Fifth District Court of Appeal. Eisenmenger argued that the state based its case against the 34-year-old pastor’s wife on circumstantial evidence -- though there were nine separate charges of babies being abused while in her care. That appeal also failed to gain any traction with the court.  

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.  

On June 17, when Eisenmenger claimed the state had said it would not call Florida Bar Chief Auditor Clark Pearson to the stand and asked that hearings from 2009 be played back to the court, Judge Midelis was relieved to find out that a CD of the hearings could be burned and delivered in 20 minutes.  

“I am not going to delay this case for 24 hours,” Midelis said. “And I don’t want to be reversed on that point, OK?”  

The day before, Judge Midelis sided with Eisenmenger on a discovery matter after he explained that he thought he was wrong in doing so.  

Though he asserted that prosecutors had fulfilled their disclosure requirements about a conversation testified to by a witness on the stand, he didn’t want to give Eisenmenger the issue.  

“In an abundance of caution, I’m going to tell the jury to disregard the last statement made by the witness,” he said.  

On June 14, Eisenmenger wished to have a statement stricken from the record detailing how Hatch allegedly enticed the personal representative of a $1.14 million estate to place the estate funds into Coastal Escrow by offering a 5.1 percent interest rate.  

Eisenmenger said the fact that the witness, Robert Lowe, would be talking about the interest rate wasn’t disclosed to him.  

“I’m holding the state to what they furnished the defense,” Midelis said. “I don’t want to be reversed on 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.  

Under Florida law, a Richardson hearing is conducted to ferret out whether or not a discovery violation occurred. On June 16, Eisenmenger questioned something that was said during one of the day’s Richardson hearings.  

“Which one?” Midelis asked. “I mean, we have a Richardson hearing every hour.”  

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.