The Honorable Horace T. Wellington fought with me from the get go in the homicide case I tried before him. I could not figure out why. Had we not been Assistant District Attorneys in the same office for three years before the Honorable Horace was elevated to the bench by the good citizens of Jefferson Parish, Louisiana? True, the Honorable Horace had tried just enough cases to preserve his credentials as an Assistant Prosecutor, but never ventured into the deep waters of serious, controversial cases. The Honorable Horace kept a low profile.
In close conversations with select friends at lunch at Whiteside’s Restaurant, across the street from the Courthouse, the Honorable Horace expressed his opinions freely on most any subject. He also, in subtle ways, reminded us at his table that he came from better stock than us. Was his father not a member of the prestigious New Orleans Cotton exchange? Had the Honorable Haorace inherited the same position from his sire? Did he not attend Ivy league schools? Did the Honorable Horace not own race horses and go to the Kentucky Derby and hob nob with the elite of the King of Sports each spring? Had the Honorable Horace not acquired a home in the elite country club neighborhood of Jefferson Parish, Louisiana? In his own mind, all these attributes and many others set the Honorable Horace apart from the rest of us mere mortals.
But why was he fighting me on this particular case? I had tried cases before him on many other occasions and he spared me this kind of grief, despite the fact that I did have to spend time educating him on the law and criminal procedure. Why had he now decided to take me on in open court?
True, this was an unusual homicide case. The Honorable Hoarace had not tried many homicide cases either as an ADA or Judge. This case called for the death penalty should the defendant be found guilty. Through eyewitness testimony, physical evidence, scientific evidence and admissions made by the defendant Nunzio Occipinto, I intended to prove that Nunzio, who was eighteen years old, did administer to James Norton, who was sixteen, a class 1 narcotic drug of Methadone. James Norton died as a result of ingesting the Methadone given to him by Nunzio. At that time, the Louisiana Criminal Code mandated the death penalty for anyone over eighteen giving anyone under seventeen a class 1 narcotic.
The strange aspect of this case was that Nunzio traded some of his Methadone with James for some street drugs James was holding. During this period, our society was engaged in the Methadone maintenance cure experiment, whereby folks addicted to street drugs were provided methadone in hopes they could relieve their addiction to hardcore street drugs. It seemed that Nunzio preferred his more familiar street drugs to the puny methadone the state provided him. In any event, Nunzio negotiated the trade with James and James ended up dead.
As is normal, the first day of the trial was taken up with selecting a jury that could find for the death penalty if I proved the case beyond any reasonable doubt. The jury could come back with a guilty verdict but without capital punishment. Since most jurors in my jurisdiction were reluctant to impose the death penalty, no matter what they might say in the voir dire examination, I did not expect to get a capital punishment verdict. But, I also did not expect to have to fight with the trial judge to just get a verdict of guilty.
During the whole trial, the Honorable Horace would sustain the defense attorney’s ridiculous objections while sarcastically scolding me before the jury, insinuating that I was handling my prosecution unprofessionally.
At one point the Honorable Horace overruled one of my objections and announced in front of the jury that he had a good mind to dismiss the case. That was my breaking point. I was angry, but I dare not show the jury how infuriated I was with the judge. I had l had long sense learned that juries don’t like angry attorneys. So I smiled and politely asked for a side bar and requested that the jury be excused so defense counsel and I could discuss some procedural issues with the the Honorable Horace.
When I approached the bench, the Honorable Horace shuffled papers on his bench and avoided eye contact with me. This three day fight with the Honorable Horace continued to vex me. When I approached the bench with the defense counsel, I reminded the Honorable Horace, “I know your Honor is aware that only the Assistant District Attorney can dismiss the case. You don’t have the authority to do this. Of course you can direct a verdict at the end of the trial, but you do this at your own peril.” This infuriated the Honorable Horace. He shuffled papers more vigorously, and looked anywhere but in my eyes and then blurted out, “Alright, but let’s get along with this silly trial.”
After four days of trial, the jury found Nunzio Occipinto guilty of the charges, but found, as I expected, that the death penalty was too harsh. The Honorable Horace imposed a three year sentence, which meant that Nunzio would be back on the bricks in about one year.
The fight with me during the whole trial and light sentence mystified me until months later I learned that Nunzio’s father, a well known horse trainer, and the Honorable Horace were good friends. Nunzio’s father even trained one of the Honorable Horace’s horses.
Of course the Honorable Horace should have recused himself from this trial. But, alas, on rare occasions, even judges don’t do the right thing.