Episode 36: The Judge Rules on Defense Testimony

“Hear ye! Hear ye! All rise,” Deputy Martínez intoned yet again as all stood within the courtroom. “The Fifth District Court in and for our great Commonwealth, the Honorable Jordan Connor presiding. God save this state and this honorable court. The case of the State versus Michael Philip Andrews. All those with business before this court draw near; you will be heard.”

The judge entered the courtroom and took his seat.

“This case is now before the court upon a motion by the state,” he began, accompanied by a wave of murmuring and rustling as the journalists prepared to announce his decision to the world.

“I’ll have order in my courtroom,” Judge Connor banged his gavel.

“This case is now before the court upon a motion by the state,” he began again, “to exclude from the consideration of the jury certain expert testimony offered by the defendant, the import of such testimony being an effort to offer a theory of gender affirmation. The state insists that such evidence is wholly irrelevant, incompetent, and impertinent to the issues pending, and that it should be excluded. On the other hand, the defendant insists that this evidence is highly competent and relevant to the issues involved and should be admitted.

“The first section of the statute involved in this case reads as follows:

“That it shall be unlawful for any teacher in any of the Universities, and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the gender definition adopted by any person, and to teach instead that gender identity has a biological meaning independent of any person's chosen preference.”

“The state says that it is both proven and admitted that this defendant did teach in this county, within the limits of the statute, that gender identity has a biological meaning independent of any person’s chosen preference; and that with these facts ascertained and proven, it has met the requirements of the statute; and has absolutely established the defendant's guilt; and with his guilt thus admitted and established, his ultimate conviction is unavoidable and inevitable; and that no amount of expert testimony can affect the final results.

“The defendant does not agree with the state in its theory, but takes issue and says that before there can be any conviction, the state must prove two things: first that Dr. Andrews taught ‘any theory that denies the gender definition adopted by any person,’ and second that Dr. Andrews instead taught ‘that gender identity has a biological meaning independent of any person’s chosen preference.’ Both points the defense denies.

“Now, upon these issues, it becomes the duty of the court to determine the question of the admissibility of this expert testimony offered by the defendant. The court will seek the aid or opinion of expert evidence only when the issues involve facts of such complex nature that a person of ordinary understanding is not competent and qualified to form an opinion.

“The ordinary, non-expert mind can comprehend the simple language, ‘denies the gender definition adopted by any person, and to teach instead that gender identity has a biological meaning independent of any person’s chosen preference.’ These are not ambiguous words or complex terms.

“In the final analysis, this court, after a most earnest and careful consideration, has reached the conclusion that under the provisions of the act involved in this case, it is made unlawful thereby to teach in the public schools of this state that gender identity has a biological meaning independent of any person’s chosen preference and to deny the gender definition adopted by any person. If the court is correct in this, then the evidence of experts would shed no light on the issues. Therefore, the court sustains the motion of the state to exclude the expert testimony.

Senator Travis rose, a stern look of barely disguised contempt on his face. “Your honor will permit me to take an exception to your ruling? The defense says it is a denial of justice not to permit the defense to make its case on its own theory. It is contrary to every principle of justice and jurisprudence to refuse to admit evidence on what gender affirmation is and what it means.

“Take my exception on the further ground,” Senator Travis continued, “that for the court to try to determine whether or not this law is unreasonable without informing itself by evidence assumes plenary knowledge on issues that have been the subject of study by scientists and doctors for generations.”

“I take exception,” Senator Castillo rose, “to the defense exceptions stated in that manner. Such a procedure is unknown in the laws of our state, and I except to the manner in which the defense objects to the court’s ruling. I think it is a reflection upon the integrity and competency of this court.”

“The dignity of this court is hardly infringed by the defense comments,” Judge Connor swept aside Senator Castillo’s exception.

“Your honor,” Senator Castillo declared, “They are entitled to have entered on record the substance of what they expect to prove. We do not question that, but then, of course, they have no right to examine witnesses, and to conduct a long, drawn-out examination, and to make a farce of your honor’s opinion. They are entitled to have sufficient evidence in the record to enable a higher court to pass upon the proposition, and, in MY opinion, a sufficient amount is already in the record.”

“I would like to state further,” Senator Travis interjected, “I understand the rule is that we can submit evidence to make a record for the appellate court, but we believe we have a right to argue before the court the question of whether or not this law is reasonable. Senator Castillo says that THAT motion has been denied. That is true, but I hope the court will hear me with an open mind. We want to ask the court to permit us to put in evidence for the sole purpose of informing the court so you can determine, AFTER evidence, whether or not this law is reasonable. Your honor affirmed this morning you would hear us with an open mind.

“I am going to let you introduce written evidence,” Judge Connor confirmed, “and I will review it, and if that evidence were to convince me that I was in error, I would, of course, reverse myself. Until or unless I reverse myself, however, I will not allow you to present your expert testimony before the jury.”

“Very well, your honor,” Senator Travis acquiesced to the inevitable. “You have my exception on the record already.”

Senator Travis walked back to the defense table, then pivoted to face the judge. “The defense would like to call a final witness to the stand: Dr. Michael Philip Andrews.”