Attorney J. Michael Farren, 57, of New Canaan, Conn, is on trial for trying to murder his wife. (Kerry Sherck)
As in any other serious criminal trial he’s handled, Bridgeport criminal defense lawyer Eugene Riccio cross-examined witnesses and stood to make objections to prosecutor’s arguments. But one thing was missing during this most recent three-day trial—his client. “For someone to ask to be excused from their trial, I haven’t seen that in 40 years of practice,” Riccio said.
Former White House lawyer J. Michael Farren was found guilty on Friday, July 11, of the attempted murder of his wife, whom he beat with his fists and a flashlight in their New Canaan mansion in January 2010. Though Farren made courthouse appearances when court was not in session, he was not present during testimony or when the verdict was announced.
Earlier in July, he had received permission from Stamford Superior Court Judge Richard Comerford to be tried in absentia. He had offered a range of explanations: Having to hear testimony about the alleged violent crime could affect his mental health; his absence could reduce the intensive media scrutiny the case has drawn. Riccio said only jurors could say for sure whether the decision played a factor in the outcome.
“Our focus was on doing the best we could to defend against the accusations,” said Riccio, who was accompanied at the defense table by two other lawyers. “We didn’t spend any time worrying about the absence of the defendant. We focused on whether or not the state’s evidence was sufficient to convict him of attempted murder and assault.”
After the verdict, Farren turned himself in. He was being held on $1 million bond. He will be sentenced Sept. 11.
Before proceedings started, Comerford explained to the jurors that criminal defendants have a right to be at their trial. On the other hand, he said they also have a right to request not to be present. He told the jurors to not let Farren’s absence have any effect on their deliberations.
In reality, Connecticut defense attorneys said it’s fairly uncommon for U.S. courts to try someone in absentia. It does happen at times when defendants skip bail and go on the run. And it happens in international courts, where war-crime defendants, for example, are often tried without even being in the same country, much less the courtroom.
But as the online magazine Slate explained in discussing one trail in absentia: “The procedure doesn’t jibe with the notion of due process, especially the constitutional right of the accused to confront witnesses. So, judges are careful to make sure that a defendant’s absence is truly voluntary, rather than the result of foul play, ill health, or lack of notice, lest they create grounds for an appeal.”
At the outset of the trial, one experienced Connecticut defense lawyer said Farren’s absence might hamper Riccio’s defense efforts.
James Diamond, who has spent more than 25 years as a prosecutor and defense attorney, said he has never heard of a Connecticut defendant asking to be absent from his own trial. “It could hurt the defense attorneys’ ability to defend Mr. Farren,” Diamond said. “They won’t be able to obtain his assistance while the trial is progressing, even if it’s to briefly consult with him before cross-examining a witnesses.”
On the other hand, said Diamond, “sometimes a defendant’s presence and conduct during a criminal trial hurts them, as jurors may form a negative opinion of the defendant’s appearance, facial expressions or conduct. [But] on balance, it’s not something I would ever advise a client to do and I, too, would object to it if a client tried to do it.”
Farren served as deputy White House counsel under President George W. Bush from 2007 to 2009. He had previously been undersecretary of the Department of Commerce for international trade under President George H.W. Bush from 1989 to 1992. Among other jobs, he was briefly general counsel at Norwalk-based Xerox in 2007.
Farren chose to represent himself at a civil trial after a lawsuit was filed by his ex-wife, but he never set foot inside the courthouse door after the jury was selected. In December 2013, Mary Margaret Farren, who formerly practiced at Skadden, Arps, Slate, Meagher & Flom, was awarded $28.6 million in damages after jurors found Michael liable for assault and battery and intentional infliction of emotional distress. He has filed a motion to reopen judgment in the case.
As for the criminal case, Farren underwent a series of psychological examinations to set the groundwork for a possible defense of not guilty by reason of mental disease or defect. But he refused to allow state doctors to examine him to verify the findings of privately hired experts. He then appealed a decision by Comerford that barred the mental-defect defense. More than once the judge had suggested that Farren, who had also represented himself through much of his criminal case, was engaging in stalling tactics.
At the criminal trial, on July 7, Mary Farren testified that her husband flew into a rage two days after being served with divorce papers and attacked her in their New Canaan home as their two young children slept in nearby bedrooms. Mary Farren said her then-husband beat her with his fists, slammed her head against the floor and began strangling her. “I felt like I was dying,” she said. “I was in incredible pain.”
Then, after he expressed a desire to kill her, Farren beat her with a heavy flashlight. Mary Farren escaped the house with her children, she said, only after Farren announced at one point that he was going to kill himself and went into the bathroom.
New Haven lawyer William Dow III said he hasn’t seen a criminal defendant opt out of his trial in the 45 years he has been practicing criminal law.
“Like any other constitutional right, the right to confront one’s accusers can be waived as long as it’s done knowingly and intelligently and with the approval of the court,” Dow said. “Given the history of how the defendant has handled this case, when placed in context, I guess nothing is surprising. … Trying to analyze anyone’s thought process is reading tea leaves at best. In this case, you’re trying to do so through a blindfold on a tilt-a-whirl.”
John Walkley, a Milford criminal defense attorney who started his career as a prosecutor, could not recall another time in Connecticut when a nonfleeing defendant opted out of his trial. “I had thought that I recalled one of the Black Panther defendants choosing not to be present for trial back in the early 1970s,” he said, “but my review of the available coverage of these infamous trials in [New Haven] shows differently.”
Walkley said that the absence of a defendant can leave a negative impression on jurors and handcuffs the defense attorney, who must evaluate evidence and cross-examine witnesses without the benefit of input from his client.
Some legal observers have said Farren might have been trying to lay the groundwork for an appeal by skipping the trial, but Walkley is skeptical. “I am sure that the judge covered all that would be needed to protect the record so that his absence does not create an issue on appeal,” Walkley said. “Of course, I suppose that an appellate court might say that a defendant can’t absent himself from his trial and that the court should have compelled him to be present. We will see on that.”•
Law Tribune managing editor Jay Stapleton contributed to this article.