Thursday, August 15, 2019

NEW TRIAL BOOK: SIX CAPSULES: THE GILDED AGE MURDER OF HELEN POTTS-- BOOK REVIEW



George R. (Bob) Dekle, Sr. has done it again. He has written Six Capsules:  The Gilded Age Murder of Helen Potts. It is another splendid book by Bob—this time a “true crime book” that recounts the poisoning of Helen Potts by Carlyle Harris and the high profile murder trial of Harris in the late 19th century.

Bob’s prestigious list of prior books, among others, includes: Cross-ExaminationHandbook: Persuasion, Strategies, and Techniques (which I co-authored along with William Bailey); The Last Murder: The Investigation, Prosecution, and Execution of Ted Bundy (2011); The Case against Christ: A Critique of the Prosecution of Jesus (2011); Abraham Lincoln's Most Famous Case: The Almanac Trial (2014); Ted Bundy, Celebrity Slayer (2014 Kindle ed.); The Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann; Chronicles of Crime and Criminals: Thirty Two Years in the Courtroom (2017 Kindle ed.); and Prairie Defender: The Murder Trials of Abraham Lincoln (2017).


New York assistant district attorney Francis L. Wellman, who prosecuted Harris, was a familiar character to Bob Dekle because Wellman wrote the second best book on cross-examination entitled The Art of Cross-Examination, second only to Bob’s Cross-Examination Handbook. Notable is the fact that The Art of Cross-Examination is still in print, and, despite its somewhat archaic language, it is still filled with excellent advice regarding how to conduct cross-examinations.
A highlight in Six Capsules is Bob’s description of Harris’s cross-examination of a defense expert witness Dr. Horatio Wood along with Bob’s observations about how Harris conducted the cross. Carlyle Harris was a young medical student who was alleged to have poisoned Helen Potts with morphine to prevent disclosure of the fact that he had convinced her to secretly marry him under assumed names.
Dr. Horatio Wood of the University Hospital in Philadelphia was the defense witness expert upon whom the defense case rested. On direct examination, Wood in essence testified that given that the body had been embalmed and buried for a length of time, it was not possible to determine the cause of death and that her symptoms were “compatible with various conditions.”
I can’t do justice here to either how Bob describes Wellman’s cross of Wood or Bob’s analysis of Wellman’s strategies and skills as a cross-examiner. Suffice it to say, Wellman did the following:
·      Challenged Wood’s opinion that morphine poisoning could not be diagnosed based upon symptoms.
·      Took advantage of Wood’s assertion that a definitive diagnosis could not be reached based upon symptoms but a physician confronted with them would come to a working diagnosis she had been poisoned.
·      Attacked Wood’s qualifications—Wood had seen only one case of morphine poisoning and that was 20 years before the Harris trial.
·      Examined Wood with a portion of his book in which he stated: “I have thought that inequality of pupils is proof that a case is not one of narcotism; but Professor Taylor has recorded an instance of opium-poisoning in which it occurred.” Then, Wellman confronted Wood with the fact that Taylor’s case involved a man with one eye. (This was followed with laughter from the spectators.)
·      Wellman concluded with “You may go back to Philadelphia, sir.”
Bob Dekle is a meticulous researcher, and he reported what the newspapers said of Wood’s trial performance under Wellman’s cross, as follows:
“The Herald reported that when Jerome dismissed Wood from the witness stand, the doctor ‘hurried away from the witness stand with that pained expression sometimes visible on the face of a picnicker who sat on an anthill.’ Upon Wood’s return to Philadelphia, he remarked that he had ‘gone to New York only to make a fool of himself.’ . . .”
To get both the full enjoyment of a true crime history book and insights into effective trial practice, particularly cross-examination, read  Six Capsules.



Saturday, July 6, 2019

CROSS-EXAMINATION MOVIE MESSAGES

Anatomy of a Murder

The primary purpose of cross-examination should be to catch the truth. The sought-after truth is evidence that supports your case theory or undercuts your opponent’s case theory. This is nothing new. In the Art of Cross-Examination authored by Francis Wellman, a chapter is contributed by Emory Buckner. In that chapter, Buckner writes that “more cross-examinations are suicidal than homicidal in nature.”  He postulates that this is a result of cross-examiners not understanding the correct purpose of cross-examination. Buckner states, “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The primary purpose of cross-examination should be to catch the truth. Impeachment should be a secondary purpose. Three other reasons support this proposition. First, if the witness makes the concession, you may be able to turn the witness to your own. Second, one concession on cross is worth ten pieces of evidence on direct examination. Third, it’s easier to get a witness to grant a concession than it is to impeach the witness.

The most important question that you should ask yourself as you plan cross-examination is: “What must the witness admit or stamp the answer a lie, mistaken or ridiculous.” The witness must admit because the cross-examiner can prove it by direct or circumstantial evidence or by common sense. Note that if the witness does not testify to the truth, the witness will be impeached. This truth-catching strategy is explored at length in our book Cross-ExaminationHandbook.

Underpinning this approach is the proposition that the concession sought must be the truth. It cannot be false. If the cross-examiner advances an untruth during the cross-examination, that can backfire--another suicidal act. The movie Anatomy of a Murder, considered to be the best trial movie ever made, provides a great example of such a disastrous cross.

In Anatomy of a Murder, an Army lieutenant is accused of murdering Barney Quill, a bartender, whom the lieutenant (Ben Gazzara) claims raped his wife (Lee Remick). At trial, witness Mary Pilant, who managed the inn where Quill worked, is called as a witness for the defense because she found a pair of torn panties that would corroborate the claimed rape. Claude Dancer is the prosecutor–played by George C. Scott—on cross-examination asserts that she was Quill’s lover and therefore willing to plant false evidence—the panties. 

Dancer’s cross-examination goes as follows:

Q.        Miss Pilant, were you Barney Quill’s mistress?
A.         No. No. I was not.
Q.        Do you know it’s common knowledge in Thunder Bay that you were living with Quill?
A.         No, it’s not true. Barney Quill. . .
Q.        Was what, Miss Pilant? Barney Quill was what?
A.         Barney Quill was my father.

Dancer is crushed, turns away, asking no more questions.

Gregory Peck as Atticus Finch in To Kill a Mockingbird

Atticus Finch in Harper Lee's To Kill a Mockingbird, says “Never, never, never, on cross-examination ask a witness a question you don’t already know the answer to, was a tenet that I absorbed with my baby food. Do it, and you’ll often get an answer you don’t want, an answer that might wreck your case.” Thinking you know the answer is not enough, you must be able to prove it. When you can, you can go after the ever “elusive fugitive”—the truth, knowing you will have a winning cross.




Wednesday, May 29, 2019

CROSS-EXAMINATION AND THE PASSING OF HERMAN WOUK


With the passing of Herman Wouk on May 17 at 103, we can remember his great masterpiece The Caine Mutiny about sailors on a World War II destroyer minesweeper who mutiny against their incompetent Captain Queeg. Wouk wrote The Caine Mutiny play and for a while worked on the script for the movie in which Humphrey Bogart gave an Oscar winning performance as Captain Queeg in the Caine Mutiny movie.

The basic facts underlying the court-martial case are that Lieutenant Stephen Maryk relieves Queeg of command of the USS Caine when Captain Queeg freezes up during a typhoon. Maryk has a belief from Queeg’s prior behavior that he is mentally unbalanced. Maryk is on trial for conduct to the prejudice of good order and discipline.

Lieutenant Greenwald’s cross-examination of Queeg is the high point in the movie. Beyond that, it is a superb illustration of how to conduct a concession-seeking cross-examination. The concession-seeking cross-examination strategy is discussed at length in Cross-Examination Handbook.

 Time after time, Greenwald confronts Queeg with truths that Queeg must concede or stamp his answer as either a lie, mistaken or ridiculous. Why must Queeg concede? It is because Greenwald can prove what he is asserts either by circumstantial or direct evidence or by plain common sense. Greenwald knows the answers to every cross-examination question he asks.

It is Greenwald’s turn to testify, not Queeg’s. It’s his opportunity to lay out the truths. These truths all support the ultimate conclusion—Queeg is unstable and unfit for command.

Here are those truths: (1) Queeg steamed over the Caine’s tow line; (2) Queeg was distracted during the towing maneuver because he was reprimanding a seaman over an un-tucked shirt; (3) Queeg having just testified that Maryk was unfit had previously written a glowing fitness report about him; (4) Queeg ordered that the Caine steam ahead of an attack force, drop a yellow dye marker and retreat; and (5) Queeg was obsessed with a search for a key that would have led to a missing quart of strawberries when he had been told by an officer that the mess boys had eaten the strawberries. When confronted by Greenwald with the fact that the officer who told Queeg about the mess boys eating the strawberries could be called to testify, Queeg loses his composure, rolling two metal balls around in his hand as he babbles on (masterful performance by Bogart). 

Naturally, Maryk is acquitted.


Tuesday, December 18, 2018

FAMOUS (AND INFAMOUS) CROSS-EXAMINATIONS



Pace Law School Library has a gem of a webpage that is dedicated to famous and infamous cross-examinations (as well as direct examinations), which can be found by clicking here. Some of the cross-examinations have been featured on this blog, including Abraham Lincoln’s cross-examination of Charles Allen in the Almanac trial and Max Steuer’s cross-examination of a witness that revealed that the witness had been coached into a memorized story. These cross-examinations are also discussed in more detail in Cross-Examination Handbook: Persuasion, Strategies and Techniques.

An example of what the Pace Law School webpage has to offer is the British commentary of Solicitor Anthony Wooding (hence defence rather than defense and criticised vs. criticized) along with the transcript of the cross-examination of an expert witness in the 1930 trial of Arthur Rouse by Queen’s Counsel Sir Norman Birkett. This is the commentary and transcript of the cross:

“The following is an extract from a famous cross examination of an expert witness engineer by Sir Norman Birkett QC of Alfred Arthur Rouse who was tried for murder in 1930. Sir Norman Birkett was prosecutor and at the height of his powers. Alfred Rouse was accused of murdering a passenger in a car by setting light to it. The defence was that it was an accident. Defence counsel called an expert witness who claimed 'a very vast experience as regards fires in motor cars' and who asserted that the fire was caused by the junction in the fuel line becoming loose. The witness gave his evidence with great confidence. Sir Norman Birkett then began his cross examination......”

A (Birkett): What is the coefficient of the expansion of brass?

S (The Expert): I beg your pardon?

A: Did you not catch the question?

S: I did not quite hear you

A: What is the coefficient of expansion of brass?

S: I am afraid I cannot answer that question off-hand

A: If you do not know, say so. What is the co-efficient of expansion of brass? What do I mean by the term?

S: You want to know what is the expansion of the metal under heat?

A: I asked you: what is the co-efficient of the expansion of brass? Do you know what it means?

S: Put it that way, probably I do not

A: You are an engineer?

S: I dare say I am

A: Let me understand what you are. You are a doctor?

S: No

A: You are a crime investigator?

S: No

A: You are an amateur detective?

S: No

A: But an engineer?

S: Yes

A; What is the coefficient of the expansion of brass? You do not know?

S: No, not put that way
“This is a very powerful cross-examination technique. Although it has some flaws and is somewhat outmoded (see below) it still held as a classic teaching tool in law schools. The point is of course that it would have been difficult to challenge the witness directly on his conclusions without being something on an expert on car fires too, which Sir Norman was not. So Sir Norman goes instead for the jugular: the expert status itself. He also tightly controls the questioning, emphasizes it and directs it in such a way that the witness has nowhere to go.

“The cross-examination consists of a series of tightly paced 'closed' questions.
Today the repetition of the same point to give maximum drive to the same answer might be criticised as too crude (even as a 'jury technique'). The judge might well say 'Sir Norman, the witness has answered. let's move on'. Also there was of course a slight risk - a risk which Sir Norman probably considered but calculated as negligible having heard perhaps the too self-assured evidence in chief of the witness - that the expert did actually know the coefficient of expansion of brass, which would have destroyed the point. Maybe he had an immediate supplementary question should this have been the case.

“I did once see (in the Technology Court in Birmingham) an expert witness being comprehensively demolished on his expert credentials. Unfortunately for me, he was our witness. It was done very neatly but in a more subtle way. The other side had done their homework and found out that our expert chemist (the case was about the efficacy of a glue which had alleged failed causing gaps to appear in glazing: the glazing company was my client, the Defendant was the glue manufacturer) had previously published research and conclusions which were different from the ones he was now presented. A tough, truly confident and perhaps better prepared (rehearsed?) witness might have been able to stick to his guns and say, yes but I later saw that this research was wrong for xyz reasons and I reached opposite conclusions. But I think they calculated on the other side that he would be too taken aback by being reminded of his previous different conclusions that he would stumble. And he did. The other side's counsel I noted was made a QC soon afterwards.

“Whatever the pros and cons and indeed theatre of these cross-examination techniques one must not lose sight of the fact that their success or failure can have life or death consequences for a case. That was literally the case for poor Alfred Rouse. The defence expert witness was discredited. Alfred Rouse was found guilty of murder. His appeal failed and he was hanged at Bedford prison on 10th March 1931.”

This sample from the Pace Law School webpage is both enjoyable and educational. The lessons are timeless:
            Don’t do battle on the expert’s turf; rather, go after the expert’s qualifications, basis for opinions and so on. Don’t ask open-ended  questions; rather ask short, closed-ended questions.