The first step in evidence gathering is discovery. Each side is supposed to present all documents that bear on the case. In practice, however, there is subjective interpretation about what constitutes relevant evidence. One side could flood the other side with stuff that has little or no bearing on the issues, swamping their ability to sort through it all.
JPL should have had every relevant document about me in their own records, but my lawyer and I provided much of it anyway. Fortunately, I had kept some very hot emails that supported my case, but there were also hundreds of normal everyday work emails that didn't bear on the issues involved. So I hunted for keywords and key people, and supplied everything that had to do with the case. We presented 571 documents to JPL's lawyers. When they learned in deposition that I had kept personal notebooks of my work, they wanted all of them, too, even though 95% of the material (or more) was just incomprehensible computer geek-talk, task lists, and records of meetings. They had the manpower to go on a fishing expedition for incriminating evidence about me or my work, and made hay of it during depositions and at trial. You'll see in a minute that my ability to counter their interpretations was limited, due to other rules of evidence.
The Delayed Fuse
JPL's lawyers, however, committed a serious blunder, omitting highly relevant emails almost a year after initial discovery, right as Becker and I were completing our important "Plaintiff's Opposition to Defendant's Motion for Summary Judgment" in September 2011. I remember the situation well. Bill and I were working feverishly out of his home office to get the legal brief done before the deadline, supported by 88 pages of supporting arguments, when JPL's lead attorney Jim Zapp sent a little "whoops" message, saying they had inadvertently omitted 13 emails in discovery 10 months earlier. Bill asked me to see what was in them while he continued typing. Some were boring, but a couple of them almost burned my fingers. I told Bill, "You might want to look at this." Stopping to read them, he came the closest to swearing as I had seen. Here was incriminating evidence that HR (human resources), my boss, my group supervisor, and the Cassini Program Manager were conspiring to get me off the program or fired—within 38 days after Greg Chin's tirade! (see The Triggering Incident.) One HR employee wrote, "I think we need to ensure that there is no retaliation going on."
Becker fired off an angry email to Zapp, saying, "On the evening before opposition to your summary judgment motion was to be filed, you dropped a bombshell in my lap." It meant that some of the witnesses may have perjured themselves in their depositions. "Your client, JPL, and specifically HR, withheld a key piece of evidence that contradicts testimony in this case and may require me to redepose virtually everyone," he wrote. Sheepishly, Zapp accepted that the trial would have be delayed so that additional depositions could be taken. Conveniently for JPL, most of HR's witnesses had forgotten those emails when they were brought in to testify, now that 2.5 years had passed since they were written. One HR lady literally said "I don't remember" to every question. This episode illustrates how timely production of documents is vital to getting a fair trial.
Motions in Limine (rhymes with "jiminy"), or MIL, are requests that parties make to the court to try to exclude evidence. You heard me right. For various reasons, parties to a trial believe certain evidence to be prejudicial or irrelevant. JPL's lawyers, for instance, opposed our intent to show the DVD's "The Privileged Planet" and "Unlocking the Mystery of Life" to the jury. They opposed our presenting an expert witness on intelligent design. They opposed mentioning that other people had suffered discrimination for their views on ID, as shown in the movie Expelled. They wanted to exclude any reference to "viewpoint discrimination". They wanted to exclude any testimony that my activities were justified because JPL conducts research and activities on the "origin of life."
For our part, we wanted to exclude testimony regarding Proposition 8 (California's "gay-marriage" initative) on the grounds that jurors in Los Angeles might be too prejudiced by that hot issue to be able to address the larger issue of free speech. We wanted to exclude testimony by a JPL economist claiming that I didn't look hard enough for a new job after I was fired. We wanted to exclude "cumulative and irrelevant defendant witnesses" that would not provide new evidence, but would just keep hammering on the defendant's theme. (JPL, remember, could call in anyone they wanted, give them time off work with pay, and coach them on what to say. We were limited to retirees or former employees.) We wanted to prevent JPL from arguing that they had a "right to interfere" with my "political activities" (such as they were: handing out a few Prop 8 flyers on one day in Nov. 2008).
Both sides had other MILs, but you get the idea: each side doesn't want to prejudice the case, and so it is in their interest to include or exclude certain evidence or lines of argument. For each MIL, we had to present additional facts and evidence to the court arguing our reasons, and additional documents opposing the other party's arguments. All the MILs were presented when we thought we would have a jury trial. Since we later opted for a bench trial, the MILs became largely irrelevant; the judge knew all the motions and could not un-learn them ("You can't un-ring a bell," lawyers say). Judge Hiroshige still ruled on each MIL in chambers (with the lawyers behind closed doors). Based on his decisions, he was not "supposed" to take excluded evidence into consideration for his final decision, but who knows what biases entered in anyway? For instance, he was supposed to watch the DVDs privately, but we never found out if he actually did. It's hard to imagine any fair-minded person thinking the films are "pushing religion". I sure wish I knew if he fulfilled that obligation, and what he thought of the films. I can only speculate that he either did not watch them, or is so prejudiced against ID himself that he did not want me, an ID proponent, to succeed. God only knows.
Another way to bias a trial is with rules about "hearsay" evidence. This can help or hurt a party to a trial. In my case, I think I was hurt. Becker and I could not understand some of the judge's courtroom rules on hearsay. For instance, I had a box full of my personal notebooks from all my time as a JPL employee. We had submitted these to JPL's lawyers to photocopy and examine. They were already in the discovery evidence pool. But during trial, I was hamstrung in using them, on the grounds that they were "hearsay." They were my interpretations of events, the judge said, and therefore were not admissible.
How much can you remember of things you did seven years ago? That's why I took copious notes. My notebooks provided contemporaneous accounts of events, like who was present at a meeting, what was said, and what was decided. In my thinking, it constituted the best evidence of certain events that were discussed at trial—often the only evidence. JPL's witnesses were allowed to speculate out of their own faulty memories about things that had happened up to 9 years earlier, but I had it all written down! For instance, Ms Weld, one of the Cassini managers, got her facts all confused (and wrong) about meetings I had with her about solving problems with one of her employees, Pam W., back in 2004-2006. In my notebooks, I had the exact dates and records of what she said to me at eight separate meetings, when she was cordial and thanked me for bringing the matter to her attention. But on the stand, she only remembered three meetings, and forgot what she herself had said. This was unfair, I thought, but she got away with it because of rules about hearsay. Becker was able to cross examine her, but we could not consult my notebooks as a source of evidence.
There were exceptions. The judge allowed me to consult my notebooks from the stand for the purposes of "refreshing my memory" before testifying. But I could not read aloud what I wrote into the court record; I had to find the right page in the notebook, read it silently, then close it before I could say anything. That's hard to do under pressure when there are multiple facts written down. There were also a few pages in evidence we were allowed to reference. For instance, Pam had just trashed my reputation on the stand when Becker cross-examined her with an excerpt from one of my notebooks that showed I had met with her on Sept. 2, 2004, to build a better working relationship, and that she appreciated it. Only then did she recall that. She testified that my notes were accurate. But for most of the other JPL witnesses, they were allowed to freely speculate about distant memories with no documentation whatsoever. It would have been far better, I think, to allow my notebooks to be offered for witnesses to look at, to confirm or dispute my record, rather than to ignore it completely.
The judge's rules allowed JPL's attorneys to use my notebooks against me. For instance, in 2004, Greg got angry with me three times over rumors Pam had spread up the chain. I had dutifully recorded everything he said at those meetings. It looks pretty damaging until you know the context; in March and August of 2004, Pam had badmouthed not just me but all the System Administration (SA) team. Since I was in the "line of fire" as Team Lead, I got the brunt of her complaints. Greg was responding to her gossip that had gone to Pam's boss, her boss's boss, and the Program Manager, and was unloading it on me, the team lead. Within months, as my notebooks from 2005-2007 show, Greg changed his tune, because he started getting in Pam's line of fire himself—so much so that the Program Manager was about to fire him! He wrote in emails to the Program Manager and his sub-managers in that period that he felt the attacks on the SA's were unfair. I gleaned choice quotes from Greg and his deputy Tammy in emails and notebook pages about how they had changed their mind about Pam and about me, were no longer accusing us as being the problem, and were defending us before the top managers.
JPL's lawyers took my earlier notebook pages from 2004 out of this broader context. They harped on them to build their case that I was a troublemaker with a long record of poor interpersonal skills. You can ask any of my team members and others in Greg's office about that period, and they will confirm that I was not the problem. The situation involved strife between Greg's office and Pam's office about how to do things. It was turf war that troubled us all. Some of the heat I took was for defending my team's actions against her gossip with the facts. Context matters! (Note that these conflicts all occurred long before the trouble started over the DVDs, and were resolved when Pam left Cassini in 2007. After that, there was harmony between our offices with her replacement, who was much easier to get along with. Notice too these were work-related conflicts—common in any office—having nothing to do with my case about discrimination and retaliation.) My notebooks recorded all this, but very little of it was heard in court. Instead, Greg, Tammy, Pam, Ms Weld, the Program Manager, my co-workers and others who testified against me at trial were permitted to speak off the tops of their heads with no written record whatsoever!
Surprising as it seems, hearsay rules also disallow a witness from attesting his own emails. I possessed several time-relevant emails I wrote to myself in 2009 after key events occurred, but these were not considered admissible evidence. Only when a recipient could attest to receiving an email was it admissible. Because of this rule, there were some "hot doc" emails by others that didn't make it into evidence because a key person could not recall receiving it, or was mentioned in the email but was not on the recipient list.
Even if a witness does attest a document, and it makes it into evidence, it may not get the notice it deserves (see "Crystal Clear: What This Trial Was All About.")
The ability of an attorney and client to keep their discussions confidential is an important safeguard in our justice system. Attorney-client privilege was won through a series of historic precedents. Abuses are certainly possible when an attorney or client are forced to reveal what they said in confidence. It can also mean, however, that incriminating evidence will never see the light of day in the courtroom. That happened in my case.
During 2010, after my lawsuit had been filed and before I was laid off, JPL's lawyers met with key decision makers specifically about my case six to eight times. We wouldn't have known about these meetings except that a witness disclosed the fact at deposition, leading to follow-up questions and more revelations about them by that witness and others. In deposition and at trial, we were allowed to inquire about the dates of these meetings and who was present, but we could not ask about what was said, on the grounds of attorney-client privilege. Not even the judge could know.
It's not hard to imagine what was going on. Jim Zapp and the defense team were most likely scheming with Cassini management, HR and my line management about how to get me out of JPL without making it look like retaliation. This would explain a lot of subsequent events: the low ranking, the terrible annual review, the addition of two additional SA's a few months before my firing, the delay of the layoff to appear to coincide with "reduction in funding" for 2011, and the firing of another SA on the same day. It looked very suspicious, but we didn't have a fly on the wall at those meetings, and nobody present was allowed to discuss what was said. This made it difficult for us to prove our retaliation case except by circumstantial evidence. We knew, however, that all those meetings were specifically about my lawsuit, and the key decision makers were present with JPL counsel.
Becker told me that after a trial is adjudicated, the rules of attorney-client privilege are no longer in force. Any participant at those meetings is free to tell me what was said. I doubt that any will, and it wouldn't make any difference in the outcome, but it would be interesting to know. It's another example of not having access to "the whole truth" that bears on a case.
The photo shows Moses with the Ten Commandments outside the L.A. Superior Court building where my trial was held. "Thou shalt not bear false witness" is the standard. Witnesses swear to tell "the truth, the whole truth, and nothing but the truth." The whole truth, however, is often unbearably voluminous for mortals who are not omniscient. There's a winnowing process to reduce the whole truth to the relevant truth. This is the last game I'll mention that courts play with evidence: the winnowing game. Who decides what is wheat and what is chaff?
As discussed earlier, discovery is often unwieldy. Both sides give their discovery documents numbers that are Bates-stamped onto the pages. When referred to in depositions, they are given exhibit numbers. As trial approaches, a subset of the Discovery Docs is agreed on by both sides to become the Trial Exhibits. These are given new Bates numbers, requiring tedious cross-correlation of three sets of numbers. All of the Trial Docs had to be printed out in quadruplicate, one set for the court, one set for the plaintiff, one set for the defendant, and one set for the witness. In my case, we had to print 4 copies of five 4-inch binders full of paper. That recalls a long night at the copy center! But we're not done winnowing yet.
During trial, no document can be considered relevant to the case until it is formally "admitted into evidence." During examination and cross, each side's counsel asks the court to admit Exhibit nnn into evidence. If the opposing side agrees, it becomes part of the official case evidential record. There's not time to admit all of them, certainly not the 380 Trial Exhibits in my case. So unless an attorney succeeds in getting all of his "hot docs" submitted while court is in session, essential evidence can be excluded from consideration for the decision. Moreover, the attorney can only ask for admission while examining a witness capable of attesting to the exhibit's veracity (e.g., "Is this your email, Mr. Burgess?"). It means that only a small subset of initial evidence can be considered by a jury (or the judge, in my case) when contemplating the verdict.
Even then, the winnowing game is not over. Attorneys know that jurors often develop a "gut feeling" about the case based on what they hear and see in the courtroom. That was one worry we had when considering a bench trial vs. a jury trial. Would a typical panel of inner-city jurors—probably many of them government workers (or out of work)—be able to process the intricacies of law that pertain to a case like mine? Or would it turn into a popularity contest, ending up with a decision based on whether they liked me or my lawyer better than JPL's lawyers? Would the prestige of JPL and NASA bias them against a lone plaintiff?
When we decided on a bench trial, the "gut feel" issue became refocused sharply from worries about the biases of 12 people to concerns about one man's integrity. Judge Hiroshige was an experienced employment-law judge with many years' experience. But he was a Jerry Brown appointee, and registered Democrat. We don't know his feelings about ID, but we do know that most Democrats lean left, and leftists are usually the most stridently opposed to intelligent design. How well was he able to lay aside his own biases (if any) and focus completely on the winnowed-down evidence? It's impossible to know. All we know is that despite mounds of evidence, and a painstaking, four-year effort on Becker's part, it came down to one fallible man's judgment. And he wasn't telling what evidence, or lack thereof, influenced him to rule the way he did.
The weight of the evidence depends what evidence makes it to the scales. Then it depends on how much weight is ascribed to each piece on the stack. As I look at piles of boxes of paper in my garage from this trial, most of it concerning "evidence" that got subjected to all these tricks of the courtroom, I think sometimes we could have saved a lot of trees by tossing a coin. I'll let the reader decide whether justice was served.