Trial Day 3: Rick Silverstein Goes For Broke

“If, if! If my aunt had testicles, she’d be my uncle.”

With those words, criminal defense attorney Rick Silverstein once again had the courtroom’s attention — and lobbed another unconventional verbal missile — as he tried to convince a state judge on Wednesday to shut down a prosecutor’s leading questions of an expert witness.

It was the latest example of how a colorful, veteran local lawyer is waging another long-shot courtroom battle on behalf of a person charged with heinous acts choosing to plow past the odds to vindication with a push-the-envelope advocate cast from HBO.

Silverstein, 65, is working with his co-counsel (and wife) Jamie Alosi to represent retired former city police Lt. Rahgue Tennant in this week’s jury trial in a fifth-floor courtroom at 235 Church St. 

The state has charged Tennant, the former district manager of New Haven’s Dixwell neighborhood, with three domestic-violence felony and misdemeanor counts after he was arrested for allegedly assaulting his wife, holding his family hostage, and threatening to shoot up his East Shore home in 2018. Tennant turned down a plea deal, parted ways with his previous attorney, Norm Pattis, and turned to Silverstein to fight the charges.

While Tennant and his ex-wife sit at the legal and emotional center of this criminal case, Silverstein often occupies the center of attention during each day’s court proceedings.

That’s largely thanks to the growling panache that he brings to just about everything he does in Courtroom 5A.

Over the course of his three decade-plus career on the job in New Haven, Silverstein has been no stranger to representing controversial clients. He’s also long leaned in to the adversarial nature of the American courtroom. That wealth of trial experience coupled with his commitment to playing to win make for a compelling courtroom performance. And he plays to win, not win sympathy: a central rhetorical strategy of his in this trial has been to attack the credibility and character of Tennant’s ex-wife, an alleged domestic violence victim who has spent hours on the witness stand detailing the alleged abuse she has endured.

Silverstein’s courtroom antics have led to plenty of rebukes from state Superior Court Judge Jon Alander, delivered with a patient sigh and a hint of a smile.

“Mr. Silverstein, you have to let the witness answer the question,” has become one of the judge’s most frequent refrains.

“Mr. Silverstein, we’ve got to let him finish asking the question,” he said on Wednesday afternoon as state prosecutor Jason Germain examined a witness.

“Mr. Silverstein, you’re prefacing your questions with arguments. If you could just cut to the question, we’d be able to move on a little bit quicker,” he said on Monday afternoon during Silverstein’s cross-examination of Tennant’s ex-wife

Nevertheless, day in and day out at the courthouse, all eyes are on Silverstein when the trial is in session — and, during breaks, fellow lawyers and judicial marshals and court staffers and former clients flock to the defense attorney for a fist bump and to catch up. 

What exactly does the Silverstein style of legal defense look like in action?

Based on his cross-examination of witnesses and frequent objections to prosecutors’ questions so far, that style is a mix of legal savvy, gruff demeanor, sartorial flair, strut, charm and combativeness, an intimate familiarity with seemingly everyone who works in New Haven’s courthouse, and a brazen willingness to push the boundaries of courtroom norms.

Drama, in short. Ramped up to prime time. With attorney Silverstein in the spotlight.

Sometimes that includes making thinly veiled personal attacks on a prosecution witness’s credibility. Such as when he asked Tennant’s ex-wife on Monday afternoon, ​“Wouldn’t you agree that the truth doesn’t have to be rehearsed?” after she testified that she had prepared with state prosecutors before the start of the trial. 

Sometimes that includes reveling in procedural victories small and large alike — such as when he turned to the gallery and gave a triumphant fist pump after Alander denied the state’s request to solicit witness testimony about an alleged domestic violence incident involving Tennant from 2010. 

Sometimes that includes packing his witness questions with arguments that have no chance of being allowed to stand, then withdrawing those questions from consideration after he’s already gotten his point across in open court. Such as when he repeatedly asked Tennant’s ex-wife if she ever ​“pushed his buttons,” and then accused her of once throwing an object at Tennant during their relationship.

State prosecutor Kelly Davis instantly objected to that, and Silverstein told the judge that he wouldn’t ​“claim” the question.

“Then why’d you ask it?” Alander asked with some exasperation.

Sometimes that includes more than a hint of melodrama. Such as when he asked Tennant’s ex-wife over and over again on Monday, ​“When did you stop loving him?” Or when on Tuesday he asked in a fit of pique if the judge wanted to declare a mistrial because of Silverstein’s incompetence representing his client. Silverstein clearly didn’t mean it, and the judge said he wouldn’t take such an extreme action. Tempers cooled, and the case moved on.

And sometimes that includes cramming outraged frustration into otherwise clear legal arguments. Such as when he spoke with the judge on Wednesday afternoon about city police officers who are currently out of state who he plans to call as witnesses. ​“I don’t care if they’re in Florida, I don’t care if they’re in Rio de Janeiro, as long as they’re employed by the NHPD, if they’re served with a subpoena, they have to comply!” he declared.

"Can't Have Too Many Friends"

In between the action Tuesday, Silverstein spoke about his approach to the law, and why he has dedicated his life to fighting for the accused.

“What’s the pursuit of happiness if they take away your liberty?” he told this reporter as he walked back to his office on Elm Street. 

He said he first started thinking about a career in law when he was 11 years old and his mom was carjacked on Norton Street in the 1960s. He said officers took his mom to police headquarters and tried to pressure her into identifying a suspect she didn’t think was the man who had accosted her. His mom didn’t give in to the pressure; she didn’t ID that man. Silverstein later found out that the ​“suspect” was a completely innocent school teacher. ​“His life would have been ruined” if his mom had caved to police pressure, he said. 

He also recalled seeing the National Guard decked out in military gear on the New Haven Green during the Black Panther trial protests of 1970, and thinking that something was seriously wrong with the criminal justice system in this country.

What has kept him going, he said, is that fundamental belief that criminal defense law is about fighting for people’s liberty in a system that too often gets things wrong.

And why does he think so many different people from so many different walks of life at the Church Street courthouse — from marshals to judges — are eager to chat with him?

“You can’t know too many people in this world,” he said. ​“And you can’t have too many friends.”

Real Bruises

Silverstein made the aunt-uncle-testicles remark Wednesday at the culmination of a back-and-forth with Judge Alander and Senior Assistant State’s Attorney Germain.

That exchange took place towards the beginning of the day, as Germain questioned Yale emergency room doctor Karen Jubanyk. 

The state prosecutor had called Jubanyk to the stand as an expert witness to testify about the potentially serious physical harm that can result from getting hit in the face by a flying object. 

Such as a Lysol can. Hurled by an allegedly abusive husband.

Which is exactly what Tennant’s ex-wife has testified that her then-husband did back on Aug. 30, 2018. 

His alleged throwing of that can at her head makes up one of the core complaints that led to the state’s second-degree assault charge against Tennant.

It doesn’t exactly portray Silverstein’s client in a sympathetic light.

Germain showed Jubanyk photographs that the ex-wife had taken of herself right after the alleged assault. The prosecution had submitted those photographs as evidence on Monday, when the ex-wife testified that she wanted to document at the time just how badly her then-husband had hurt her.

How would you categorize this injury? Germain asked, pointing to a a photograph of the bruise around the ex-wife’s eye. 

“It certainly seems to be a hematoma,” she said, which is a ​“swelling and bruise, with an overlaying laceration, which is the cut that’s bleeding.” 

Germain said that the photo was taken the night of the alleged assault.

Silverstein, sitting at the defense table alongside Tennant and co-counsel Alosi, stood up to object.

“I don’t really know what she’s here to testify to,” Silverstein told Judge Alander about Jubanyk. ​“She never met” Tennant’s ex-wife. ​“Why is she here testifying in this case?”

That objection is overruled, Alander said.

So Jubanyk prepared to answer more of Germain’s questions.

But when Germain began his question by asking Jubanyk to ​“assume” that the Lysol can pictured in a photograph taken by the ex-wife was the object that caused the bruise to her face, Silverstein again objected.

“Assume nothing!” Silverstein interjected. ​“This is a leading question.”

The judge allowed Germain to continue, but asked him to rephrase his question so that he was clearly asking about a hypothetical object, and not this specific Lysol can in this specific incident, which Jubanyk did not claim to be witness to. 

“That injury is consistent with being hit with a can like that,” Jubanyk replied to Germain’s rephrased question.

“Could that can cause serious physical injury?” Germain asked.

Again, Silverstein objected.

“Serious physical injury” is a legal term defined by state statute, he said.

Alander sent the six jurors and two alternates out of the courtroom and into a side room so that he and the attorneys could hash out exactly which lines of inquiry would be procedurally appropriate for the lawyers to pursue in open court. 

Germain explained to the judge that he wanted to elicit testimony from Jubanyk on whether or not a can like the one Tennant allegedly threw could have caused ​“serious physical injury.”

Alander pointed out that ​“serious physical injury,” which is central to the charge of second-degree assault, is indeed defined by the state criminal statute. State law defines serious physical injury as ​“creating a substantial risk of death, or serious disfigurement, or serious impairment of health, or serious loss or impairment of the function of any bodily organ,” the judge said.

While Jubanyk is a medical doctor who appears capable of testifying about medical injuries, he said, ​“we don’t want to confuse the jury about what the law is and what the doctor says. It may be different.” 

Silverstein pushed that the question of what constitutes a ​“serious physical injury” is a question for the jury to decide. It’s ​“not to be defined by a witness.”

Alander countered that the jury doesn’t have to find that the ex-wife suffered a serious physical injury in order to deliver a guilty verdict against Tennant. All it has to find is that the object used was capable of causing a serious physical injury.

The judge said that, based on the witness’s medical expertise, it was appropriate for the state to ask her in front of the jury about what types of injuries could result from getting hit in the face by a thrown object. Not necessarily a Lysol can, let alone the particular Lysol can allegedly involved in this incident. But by some object.

So Germain tried to formulate a new, more general version of the question that the judge would be OK with him asking when the jurors were brought back into the courtroom.

“If” an object was thrown… Germain began.

“If, if!” Silverstein interjected. ​“If my aunt had testicles, she’d be my uncle.”

Jubanyk, still at the witness stand, grimaced as the judge and prosecutors paused for a second before moving on.

This has ​“got nothing to do with medicine,” Silverstein argued about Germain’s line of proposed inquiry. 

Instead, he accused the state of asking leading questions to a witness who does not claim to have seen the alleged assault or treated the ex-wife after she sustained her injury.

Alander disagreed with Silverstein. In part. 

He ruled that Germain could ask the emergency room doctor about ​“what potential injuries could have occurred” if one was struck by an object in the area where the ex-wife was allegedly struck. 

“She doesn’t know anything” about the can that was allegedly thrown, Silverstein protested. Whether it was metal or plastic. Whether it was full or empty. Whether it was heavy or light. What can she say of relevance to this case?

Alander said he had made his decision, and Germain would be allowed to pose hypothetical questions to Jubanyk to elicit testimony based on her medical expertise. 

The exchange was classic Silverstein. With a mix of longshot argument and rhetorical shock, he sought every possible advantage for his client at a tough moment. He did not succeed in stopping Jubanyk’s testimony. He did succeed in convincing the judge to narrow the line of inquiry that the prosecutor could pursue.

With the jurors back in the room, Germain asked the doctor ​“if an object hit in that area of the face, what type of injuries” could occur?

Jubanyk replied: ​“An object thrown with enough force to cause a hematoma like that could cause a brain injury,” from a concussion to brain bleed. That type of injury ​“could be catastrophic,” she said. It could also cause injuries to the eye that could result in permanent blindness. And if it hit the ​“sphenoid” bones near the nose, it could cause a leak of cerebral spinal fluid that could put the victim at risk of meningitis.

In his cross-examination of Jubanyk, Silverstein took umbrage with the doctor’s earlier statement that domestic violence victims don’t flee to family members’ homes, but rather seek out co-workers or other friends who wouldn’t immediately come to mind if an alleged abuser tried to find them after they’ve left. 

“Nobody runs to family or friends?” Silverstein asked incredulously.

“Very few people,” Jubanyk replied.

Wouldn’t you agree, Silverstein asked, that ​“the first rule of logic” is that you don’t generalize about individuals? 

“I’m a medical doctor,” Jubanyk replied, who was called to provide medical expert testimony.

"Never Prepared. Always Ready"

After the state prosecutors wrapped up their case against Tennant on Wednesday and after the judge had dismissed the jury for the day, Alander kept Silverstein, Alosi, Germain, and Davis in the courtroom for a ​“jury charge conference.”

During that time, the judge and the four attorneys reviewed a draft version of the instructions on the law that Alander plans to give to the jurors at the end of the trial to guide them in their deliberations on whether or not Tennant is guilty of these three charges beyond a reasonable doubt.

After making a few small changes at the defense’s and prosecution’s request, Alander asked both sides if they would be ready to make their closing arguments to the jury by Thursday afternoon.

Germain hesitated. Thursday is when the defense plans to call their witnesses and present their evidence, he said. That will likely include Tennant taking the witness stand and offering his side of the story. 

A good point, Alander conceded. ​“There is some major testimony” coming on Thursday.

What do you think, Mr. Silverstein? the judge asked.

“I’m always ready,” Silverstein said with just a hint of a smile.

“OK,” the judge said.

“I’m always ready,” Silverstein repeated. ​“I’m never prepared. But I’m always ready.”

See below for previous articles about Rahgue Tennant’s arrest and criminal case.

• Ex-Top Cop Trial, Day 2: Police-Domestic Violence Risks Take Center Stage
• Ex-Top Cop Trial, Day 1: Alleged Domestic Abuse History Revealed
• Slow Start To Picking Ex-Cop’s Jury
• Ex-Top Cop Gambles On Trial
• Ex-Top Cop Seeks Diversionary Program
• Top Cop Retires, Heads To Trial
• Top Cop Rejects Battering Plea Deal
• Arrested Top Cop Keeps Running Out Clock
• Top Cop Benefits As Case Drags On
• Top Cop’s Domestic Violence Case Continued Again
• Accused Wife-Beating Top Cop Staying Sober
• Top Cop Domestic Violence Case Continued
• Cop’s Alleged Threats, Violence Detailed
• Cops Suspend Lt. After Armed Standoff