Saturday, December 9, 2017

CROSS-EXAMNATION MELT DOWN

Casey Anthony Trial with Jeff Ashton on the right
What can be learned about cross-examination from the Casey Anthony case that captured the attention of people across the nation?  Jeff Ashton’s book about the Casey Anthony case, which he prosecuted, is entitled Imperfect Justice: Prosecuting Casey Anthony, and it provides an insightful discussion of the case.

The first lesson is that when you make a witness a centerpiece of your case by placing him upfront as your leadoff witness, you need to make sure the witness is bulletproof and won’t melt down on cross-examination. The dangers of selecting a problematic lead-off witness as illustrated by the Casey Anthony case can be found in a related article.

The second point that is vividly illustrated by the Anthony case is that a witness’s anger can be turned to the cross-examiner’s advantage. When the prosecutor chose George Anthony, Casey Anthony’s father, as the first witness in the state’s case in chief, he was well aware that the defense would allege that George molested Casey. Beyond that the prosecution team knew that defendant Casey Anthony had told therapists that George killed Caylee, his granddaughter by Casey Anthony.

While the prosecution undoubtedly tried to prepare George Anthony to neither lose his temper nor try to outwit defense counsel during cross, that effort failed. Jeff Ashton’s account of the cross describes how pretrial preparation on occasion fails to deter a witness from jousting with the cross-examiner, how an aggressive cross can anger a witness and how painful it is to sit by helplessly watching a melt down. Ashton’s describes what happened to George Anthony on cross-examination in this way:

 “Rather than saying, ‘No, it didn’t,’ (when defense counsel Jose Baez asked George about the condition of a gas can when it was returned to him) and staying consistent with what he’d said to me only an hour or so before, George started to be difficult with Baez, answering his questions with questions for the sole purpose of frustrating him.

“This was not helpful to our case. George must have hated Jose, particularly because of the latest allegations. I think George may have believed that it had been Baez’s idea to accuse him of abusing his daughter. In George’s mind, Casey had only submissively gone along with her lawyer’s plan. None of us on the prosecution saw it that way. To us, the molestation accusation had ‘Casey’ written all over it. Regardless, one thing I was sure of was that Baez knew how much George disliked him and used it to his advantage. Baez probably wanted the jury to see George’s hostility, and George took the bait. He was not bright enough to read what was happening. I wanted to say, ‘George, just stop playing games, just answer the question,’ but I couldn’t. I’ve always wondered if on some subconscious level George was trying to look guilty. Maybe this was his way of helping Casey. I really didn’t think so, but I wondered. For someone who was innocent, he had a way of making himself appear suspect. I didn’t think it would seriously hurt our case, or lend any real credence to the defense’s baseless accusations, but I knew this was not the face of George that we on the prosecution team wanted to project.”

“Baez knew that George would continue to try to dance around the connection between the tape and his house. By now, we also had a video in which the same duct tape was being used at the ‘Find Caylee’ command center. This further made George look like he was lying. If initially he had been trying to protect Casey, now he was looking as though he was trying to protect himself, something not lost on Baez.

“Ultimately, George said that the gas can didn’t have duct tape on it when Casey brought it back. So why the game? He was playing right into Baez’s hands. I just wanted to slap him, and this wasn’t even the end of it. The next thing I knew, George was arguing with Baez about how often he mowed the lawn.

“You cut your grass every week? Baez asked.

“Well, every week, two weeks, ten week days,” George answered instead of simply saying, ‘Yeah, I cut my grass every week in the summer.’

“I could tell that George wanted to spar with Baez about anything. But not only was he not as practiced at the dance as Casey, he didn’t have a motivation to stop. Normally, a  lawyer can appeal to a witness’s better judgment by saying, ‘You’re at risk of allowing the accused murderer to go free by the way you are acting.’ But George didn’t have that motivation because the accused murderer was his daughter. Instead, he was exercising his private outrage at Baez, and ended up looking like he was trying to hide something. He was only shooting himself in the foot. All we could hope was that the jury would understand that George’s anger was justified, that it was directed at Jose, and it was not indicative of complicity.”


Bottom line lessons from the cross-examination of George Anthony: Prepare your witness not to argue or get angry, and if an adverse witness is ill prepared, you can take advantage of it on cross.

Tuesday, December 5, 2017

NEW JURY SELECTION HANDBOOK: Ideal Companion to Cross-Examination Handbook


Carolina Academic Press has just published Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection (374 pages) by Ronald Clark and Thomas O’Toole. It is an ideal companion to Cross-Examination Handbook.

Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for lawyers who are acquiring their jury selection skills, veteran trial lawyers who want to refresh and expand their approaches and law students. In essence, this book provides a comprehensive view of the jury selection process that can help all attorneys get a better perspective on the strategic choices available to them at every step of the process.

The book offers two perspectives on the principles and practices for conducting jury selection: that of a trial advocacy professor, who has extensive trial experience and as a trial advocacy instructor, and that of a jury consultant, who has picked over 200 juries across the country in state and federal courts on a wide variety of civil and criminal matters with exposure up into the billions.

The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions.

The book provides role-play jury selection assignments for both a civil and a criminal case that can be utilized in law school trial advocacy and clinic courses and in lawyer CLE or in-house law firm professional development training sessions.

Robust online appendices provide examples of jury questionnaires, motions and responses to motions relating to jury selection, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases.

Jury Selection Handbook is part of a new series of course books, the Lawyering Series, published by Carolina Academic Press in cooperation with Northeastern University School of Law. The new experiential series, which will include core teaching texts as well as supplemental handbooks, is aimed at meeting the needs of law schools for more practice-oriented materials.


Tuesday, November 28, 2017

WHO NEEDS CROSS-EXAMINATION!

It is important to get law students out of the classroom and have them watch the real lives of trial lawyers. For my Comprehensive Trial Advocacy course, Seattle University law students attend a day in trial and report on what they observed. Consistently they praise this courthouse visit. It is satisfying to read the students’ reports and to learn how being in the courtroom can be such a rewarding learning experience for them. The following observation-report was written by Claire Charbonneau.

            The trial proceeding that I observed was a criminal proceeding under Judge Ramsdell in the Superior Court in the King County Courthouse on 10/17. I came to understand that the trial was in regards to the defendant’s assault charge; although initially upon entering the courtroom I was confused for multiple reasons. I first noted that defendant was testifying, but was not being directed by an attorney. Per his testimony, I came to be more confused about what his actual charges were due to the nature of that testimony. I noticed an attorney sitting across the room at the counsel table who I took to be the prosecutor. At this point I understood that the defendant was acting pro se, which was very unfortunate for him, because if anyone could have used an attorney, it was certainly this defendant.

            While the defendant was without question, an interesting individual, his testimony was extremely long winded, and he practically did the prosecution’s job for her. The defendant began with the direct examination of himself, his only witness. He began by telling the story of the charge at hand which involved the assault of his then girlfriend; however it took a long time for the story to arrive at this point, as he would trail off on loose ends and side stories that seemed to have nothing to do with the issue. Half the jury looked extremely bored, and the four corrections officers in the room often smiled at each other, amused by the testimony. The prosecutor thankfully made several objections to the scope of his testimony, hearsay, and in general to the time that the defendant was spending on the rabbit holes of his testimony. 

While parts were very slow and cringe worthy, the narrative did not lack for intrigue, as he told a tale of fighting with his girlfriend where he was blinded by perfume, broke his hand, fell on a Christmas tree while his girlfriend swung a hammer at him, and he pulled her down with him onto the tree. He then discovered a gun which he claimed she had placed under the seat of his truck. After that event, he failed to show up to work for several days, due to his broken hand, and left to the Tulalip Casino where he stayed at a motel and gambled while he was “percoceted out” by his own admission on his girlfriend’s Percocet pills. He made several other statements such as: “I’m no angel”, calling his girlfriend “every name in the book”, that he “has dated a lot of women, and spoils ‘em, because [he is] a gentlemen – as long as he ain’t mad”, that this woman (and others he later referenced) was a “vindictive woman” and that he “is a fighter”. He stated that although he is “not innocent” in many incidents that he later brought up, he was in this one. In one of the most cringe-worthy moments, which surely made every woman in the room dislike him, he said that “all women lie” and that “every man who is sitting in jail for a DV is there because a woman lied about it” because “that is what they do”.

After being prompted along by the prosecutor’s time objections and the judge, he later went on to testify about a laundry list of other crimes and incidents that had not been brought up by the prosecution. The prosecutor had to absolutely loving it, and the whole courtroom seemed shocked that he would freely offer up this information. He went on to detail his life story which included – but was not limited to the following. He was charged with assault on his ex wife, which he claimed was a lie, but also described as an event where they wrestled over a(n) amp and he backhanded (her) in the face. He then detailed a confusing relationship with another woman where he claimed he owned a ship used to fight pirates in Africa, which somehow led to an incident where this woman turned him in to homeland security, which led to some charges, and apparently another assault on her. Her claims in that case – as detailed by the defendant – were eerily similar to the ex wife’s claims and the present trial, which all involved beating, pinning (her) to the bed with his legs, and choking, or grabbing them around the throat. He claims the victim in the present case used homeland security’s discovery files against him to fabricated a similar claim, as the “mountain of discovery files” were in the home that they shared. He also apparently bought a helicopter from a man in Switzerland, that he was fixing up with a woman, against whom he was also charged for assault. There was an additional assault he did admit to, where he beat up a man who had hit a child. Lastly he testified that his first run-in with the law was an accessory to a robbery, which he claimed he was unaware of, he had only been living with this man, who he picked up as a hitchhiker, in the forest, in a van, with his then girlfriend. There was also colorful testimony about him “bleedin’ like a stuck hog”, drinking “Wild Turkey and Mountain Dew”, and running with a bucket of KFC, afraid for his life. Despite the lulls in the long winded stories, I was overall entertained. When he finally ended his testimony, he spoke about himself briefly in the third person, as if he was a lawyer, which confused the judge, counsel, and jury.

Of course after all of the testimony I just outlined the prosecutor hardly needed to cross examine the defendant. She impeached him by asking a few pointed questions abut the assaults and the charges he was found guilty of, and also why – if he was defending himself and afraid for his life in this case – he followed the police to her residence to serve a restraining order on the victim. She finished her questioning very quickly. He redirected, where he further detailed the above admissions, until the judge cut him off. There was some amusing commentary from t(h)e prosecutor and judge in regards to these long, incriminating tales, that got laughter from the jurors and the small group of spectators. Finally, the defendant rested.

After the jury had been dismissed for the day, the judge discussed the plans for the following day, asking the prosecutor whether she would be calling additional witnesses, and pointing out that “most of the information she would want has already been candidly offered up by the defendant” which got some more laughter from those present. She discussed the two witnesses she would be calling, and also wanted to spend time the following day discussing the jury instructions, particularly the self defense portion. The defendant was under the impression that he did not need to see them, though the judge tried to advise him that he would need to know the jury instructions as it would state the law by which the jury would determine his innocence or guilt. Again, this man really should have had a lawyer. The trial was an absolute mess for him.

Overall, I was pleased that I was able to observe a jury trial to see how the jury reacted to both sides. I could see that they were particularly affected by he length and confusion of the defendant’s ongoing testimony. I think they were grateful for every objection the prosecutor made, and happy she kept things extremely concise, which in my opinion was a good decision on her part, as the jury seemed exhausted. While the defendant’s story, was at times captivating, the take home message of this day of trial observation was certainly to always hire a lawyer, and never represent yourself. And likely also to not buy boats to fight pirates in Africa, or buy used helicopters from men in Switzerland.


This is such a gem in that it illustrates this axiom: If you represent yourself, you have a fool for a client. Thus, it will be also posted here.

Friday, November 17, 2017

CROSS-EXAMINATION HANDBOOK

Cross-Examination Handbook: Persuasion, Strategies and Techniques Second Edition (Wolters Kluwer 2014) explains how to take control in cross-examination. It is your turn to testify. All the essential skills and strategies you need are covered. And, the Handbook provides step-by-step instruction combined with outstanding examples from illustrious cases such as the John Scopes, Enron, Senator Stevens and O. J. Simpson trials.

Cross-examination skills training assignments for two criminal and two civil cases are provided for use in law school classes and professional skills development CLE workshops.

SUMMARY OF CONTENTS:

1. Introduction to Book, CD, & Website
2. Purposes of Cross & the Total Trial Approach
3. The Content & Concession-Seeking Cross
4. Constructing the Cross: Your Chance to Testify
5. Impeachment Cross: Reliability
6. Impeachment Cross: Report
7. Impeachment Cross: Reporter
8. Character & Conduct in Trial
9. Witness Control: Strategies & Techniques
10. Preparing the Winning Cross-Examination
11. Cross-Examining Expert Witnesses
12. Forgetters, Perjurers, Adverse Witnesses, Deponents, & More
13. Ethical & Legal Boundaries of Cross
14. Cases & Assignments

CD in pocket of back cover: Case Files for two civil & two criminal cases

TEACHER'S MANUAL (100 pages) with Actors' Guide on CD with instructions for witnesses who will be subject to cross-examinations.

Here is a sample review of Cross-Examination Handbook: "Having tried dozens of cases and having conducted hundreds of cross-examinations, I can say that this book will not only be something I review as part of trial preparation but is also a book to be given to new lawyers in our office. For years I have carved out 'thinking time' in my trial preparation to review McElhaney's Trial Notebook. I have now added this terrific book by Clark, Dekle and Bailey." Randy J. Cox, Boone Karlberg P.C., Missoula, Montana