Tuesday, July 5, 2016

Ripping Yarns From the Bear's Career in Criminal Trial Practice

Bear Lore: Do Not Enter Any Fight You Do Not Intend to Win

Consider these legal reminiscences as the necessary foundation of a subsequent article on the Bear's strategic plans, and why, When Bears Attack, they follow this ancient Bear wisdom, whose original author is lost in the mists of tradition.

Kindness is for fools! They want them to be treated with oil, soap, and caresses but they ought to be beaten with fists! In a duel you don’t count or measure the blows, you strike as you can! War is not made with charity, it is a struggle, a duel. 

What does this have to do with cross-examination?  Simple.  The Bear's objective on cross-examination was always nothing less than to utterly destroy the credibility of the witness who was testifying against his client, to the extent the witness himself made that possible.  The Bear's client's life might be on the line; his liberty at the least.  The only thing that stood between his client and the dreadful power of the state was the Bear, and sometimes his ability to nose out perjury.

This is the key point.  If a trial defense lawyer is not willing to go into a cross-examination burning with that imperative, the Bear has little use for him.  This does not merely mean poking at a fact or two, but, where it were true, exposing the witness as a bad person: a liar and a blackguard whom the jurors should not believe.  If an innocent loved one of yours was on trial for murder, would you want his or her lawyer to have the skill and determination to pitilessly expose perjury?  Or would you be worried about the witness' tender feelings, or the lawyer's deference to an authority figure?


Jose Ferrer destroys Captain Queeg - or does he
just give Captain Queeg the opportunity to destroy himself?



Jose Ferrer vs. Humphrey Bogart

Think of Jose Ferrer as trial defense counsel in the Cain Mutiny completely demolishing poor Captain Queeg, humiliating him in front of the shocked officers.  Was it pretty?  No.  Was Captain Queeg sympathetic?  Yes.  Was Jose Ferrer proud?   No ("it was like shooting fish in a barrel").  Did he do his duty?  Yes.  Captain Queeg got himself into trouble when he elaborated, and then dissembled about various matters.  When he realized he was floundering, he became nervous, and started playing with his steel balls.  Through well-prepared, respectful, but firm cross-examination, Captain Queeg himself confirmed that he was not, in fact, fit to command a U.S. warship.  That is a classic representation of a good cross examination.

It is not bad to plant doubts about the accuracy of a witness on a point or two, and usually, that's the best one can hope for.  But what if you could show the jury that the witness is a bad person whom everyone knows is a liar, without a shred of credibility?  If your innocent loved one's life were on the line, wouldn't you prefer the latter, if possible?  Now two quick points.

The first is that this hardly ever meant Bearish aggression.  The Bear usually conducted cross in a reasonable, almost friendly tone.  Sometimes, you have no choice, if your witness is sympathetic.  But the Bear always wanted the jurors to be thinking, okay, that's fair enough; what do you have to say?

In fact, most of the time, the Bear was at his most winsome during cross.  First, to lull the witness into a false sense of security.  Second to appeal to the jury.  Third, because it is one of the more challenging and theatrical parts of a trial, and the old show Bear could not be suppressed.

Sometimes the Bear would ask the question he knew would make the witness spontaneously combust while facing the jury, rather than the witness, and actually look the jurors in the eye while the witnessed answered.  Hello, we're in this together, friends.  I have him now, and he doesn't even realize it.  I am demonstrating my confidence and contempt for this perjurer.  Now watch this.

The second point is that if a witness answered the Bear's questions simply and truthfully, he was 100% safe. The best lawyer in the world can't do anything on cross with a completely truthful witness.  The problem is, witnesses are always trying to second-guess the lawyer, and deny him what they think he wants.  Big mistake.  So do not imagine any of the Bear's victims were innocent.  The ones who could be reasonably mistaken were treated with sympathy, even friendliness.  Liars found cross-examination excruciating.  (But not for the Bear.)

Next time we shall see a couple of examples of epic fails by witness under cross.

13 comments:

  1. I knew a lawyer, a recovering alcoholic, who could get anyone to look like a massive drunk ... and all he had to do was get into the details of what they liked to drink. He'd start: "Are you a beer man?" "No, not beer; I bet you like Scotch. Blended, probably, amirite?" and he'd talk about how he liked this or that himself, but have you ever had the blah blah which is the Russian version of this-or-that (I'm not a drinker so I don't remember the details). Pretty soon he'd have the guy thinking this guy would make a GREAT drinking buddy, and pretty soon the witness would be talking about how he only drank vodka on the job because it didn't make him smell ... and I'd be sitting in the "2nd chair" laughing to myself.

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    1. Funny. I could see how that might work. Although the cases where someone could be impeached on general alcohol consumption might be limited.

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  2. You have my utmost attention, Bear. Go for it!

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  3. Very good. Will the Bear imagine cross examining Hillary as, perhaps, an example.

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    1. Bears do not follow human elections very closely. We have noticed our lives don't change much either way. Donald Trump has indicated a willingness not to immediately go to war with half the countries in the Middle East, and does not reflexively see the Bear's friend President Vladimir Putin as an enemy. The Bear believes the United States and Russia are natural strategic allies. The U.S. must recognize that Russia has legitimate regional interests and stop supplying Islamic terrorists simply because Russia is exercising its legitimate right to support their ally, Syria.

      Turkey is a member of the North Atlantic Treaty Organization. Look at a map. The Bear rests his case.

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    2. Good points. What do you think of FBI director James Comey's recommendation re: Hillary?

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    3. The Bear has little regard for federal law enforcement, so nothing would surprise him. But in any event, it is always risky to comment on cases with which one s not intimately familiar, i.e . one's own. Sure, the Bear has his suspicions, but they are no more or less valid than yours.

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  4. Capt Queeg and his steel balls are an essential element of the story and also a metaphor.

    Rather than play with them at inopportune times, he should have left them firmly in place.

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  5. This comment has been removed by a blog administrator.

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    1. By accident! Sorry. I will answer your question though.

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    2. How many witnesses are 100% truthful? I don't have any way of knowing for sure. However, I can say this, although it is in no way profound.

      The more invested in the outcome of a trial a witness is, the more likely the witness is going to be less than 100% truthful. (If I ever let my clients testify, they would probably lie like a rug.)

      A co-conspirator testifying in return for a substantial reduction in his or her sentence, is going to say whatever the prosecutor wants them to say.

      Does that mean the prosecutor is unethical? Not exactly, and less on guilty-innocence than sentencing factors. More often, they are just locked into whatever the police have written in their reports. Where drug amounts are essential for sentencing, I have always thought co-conspirators are pressured by police to put more drugs on suspects. In fact, I have sat through many proffers and have seen this very thing happen, nor have I let it go without interjecting a caution to my client.

      I remember one federal case where a witness (looking for time off on a different offense) said he saw "a punch bowl full of meth." Okay, that's out of Breaking Bad, not the local trailer park meth cooperative. None of the other witnesses were anywhere close to that. Yet the federal prosecutor was so invested in maximizing the sentence, she suspended her critical faculties. I argued to the jury that "your government brought witnesses before you to like to you." I was less popular after that. But it was the truth.

      Same case, another witness admitted police showed him pictures of everything he was going to testify to, which pretty much ruins him as a credible witness. Of course, the police (very implausibly) denied ever doing that.

      Sorry if this offends anyone, but police are more likely than plain folk to yield to the temptation to lie under oath. Again, they are highly invested in the outcome of the trial. Almost certainly, they believe the defendant is guilty, and should not get away with it on account of some shyster lawyer. In their view, the system is weighted toward the defendant, and it's just rebalancing the scales of justice if they shade the truth a bit.

      They also see the defense lawyer as a dangerous enemy who can twist their words and trick them into saying the wrong thing. They are right to be wary of a good defense lawyer. But if every answer assumes you have to say the opposite of what the question implies or you're going to get tricked, then you're over-thinking, not testifying truthfully.

      Police are also taught a lot of pseudoscientific garbage, like The Reid Technique of interrogation. They have no reason to suspect results are not accurate. Investigations that go off the rails do so pretty early, and confirmation bias runs the show. The police don't get that; it is not a part of their culture.

      Police almost never not lie to convict an innocent person. The Bear has never seen it. They sometimes cut corners to convict someone they "know" is guilty. (And don't mistake the Bear, the vast majority of his clients were guilty.)

      The lady who got up in the night and saw something across the street from her window is probably not going to be tempted to fudge her testimony. Then, you go after ability to observe and recollect, in a very kind way.

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    3. That should be, "Your government has brought witnesses in front of you to lie to you." The prosecutor flipped out, the federal judge was in "how dare you!" mode. But the Bear was just arguing the facts as he saw it. A punch bowl full of meth from one cook with a half dozen pill bitches is laughable. (Now you know some real meth lingo you can work into your next conversation!)

      "Police almost never lie to convict an innocent person." DuPage County, and Cook County had their high-profile problems, but police are not interested in putting innocent people behind bars. Like I said, if they're in that witness chair, they believe the defendant is guilty, the system is skewed toward the defense (larf) and they must be adversarial with the defense lawyer. Again, if they forgot about the mind games and just answered briefly, truthfully and politely, they would have nothing to worry about. The best lawyer in the world can't do anything on cross with a truthful witness (except for those cases where ability to observe or recollect is an issue, e.g. the street light where the lady says she saw the defendant was burned out.)

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  6. I see you dredged up my high school picture.

    that was my 'Joan-Jett meets Bride of Frankenstein look. I blame it on disco.

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