Hauptmann’s Counsel Cross-Examines Him
Sometimes as a defense attorney, you find it necessary to “cross-examine” your client in an effort to either prepare him to take the witness stand or to demonstrate for him the hopelessness of his defense. If you find it necessary to cross-examine your client, for whatever reason, you must tread lightly so as not to destroy your rapport with him. If you can do it tactfully enough, you can demonstrate for your client the hopelessness of his case and help him come to the realization that he should accept the state’s magnanimous plea offer and get a lesser sentence. In my Public Defender days, I (Bob Dekle) was able to get a number of clients to appreciate the gravity of the situation they confronted. At other times, I simply succeeded in alienating my client. Oftentimes, when it becomes necessary to cross-examine your client, your best course of action is to enlist the aid of a colleague to do the examination and avoid the risk of ruining your relationship with your client.
There is a striking example of an attorney cross-examining his client which comes from the Lindbergh Kidnapping Case. As Bruno Richard Hauptmann’s execution date drew near, Governor Harold Hoffman sent word to the defense team that if Hauptmann would confess and name his accomplices, Hoffman could save him from the electric chair. The Hauptmann defense team enlisted another lawyer for the purpose of sounding Hauptmann out on whether he would confess and name his accomplices. The lawyer they called on was Samuel Leibowitz, who had won fame for his successful defense in the Scottsboro Boys Case.
Leibowitz felt sure that he could get Hauptmann to confess. C. Lloyd Fisher, the leader of the defense team, was just as certain that Leibowitz could do no such thing. Leibowitz had several meetings with Hauptmann on death row at the prison in Trenton, and on his last visit he cross-examined Hauptmann vigorously in an effort to persuade him to confess and save his life. Hauptmann steadfastly affirmed his innocence and refused to confess. Leibowitz quit the defense team in disgust, and then he took an unusual step. He released a transcript of his cross-examination of Hauptmann. His publication of the cross-examination presents us with the dual mysteries of why he did it and how he escaped punishment from the bar for revealing confidential communications with a client. The New York Times reproduced the questioning word-for-word in an article published on February 20, 1936 under the title “Hauptmann Is Resentenced to Die; Leibowitz Suddenly Quits the Case.” It was arguably a better cross than the one performed by Daniel Wilentz, Hauptmann’s lead prosecutor:
[Q: What is your theory of how the kidnapping could have been done?]
A: I never thought about a theory, I never tried to think how it could be done.
Q: How do you think the baby was taken out of the nursery window?
A: Not out the window. Down the stairs. Taken down the stairs.
Q: Then why was the ladder there?
A: Oh, in case it was needed.
Q: Then you believe the baby was deliberately killed?
A: Oh, no, it was an accident.
Q: Listen, Hauptmann, come clean with me. You think the ladder wasn’t used by the kidnappers. The only indication of accidental death was the fact that the ladder broke and the kidnapper and baby fell to the ground. If the baby had been carried down the stairway inside, how do you account for an accident?
A: You are worse as Wilentz.
Q: What would you have done in case of an accident?
A: I would have dropped the baby and run like hell in my automobile.
Q: What would you have done had you got the baby away?
A: I would have taken the baby to a farmhouse close by.
Q: How would you have collected the ransom if you left the baby dead? Would you have taken the sleeping suit? [During ransom negotiations, the kidnapper returned the baby’s sleeping suit to Lindbergh to prove his bona fides.
A: I don’t know. I guess that’s what the kidnappers would have done.
Q: Suppose you are Isidor Fisch with the ransom money. [Hauptmann claimed that Fisch gave him, Hauptmann, some $14,000.00 in Lindbergh ransom money shortly before Fisch, who was terminally ill, left America and died in Germany.] What would you do if you knew that the police all over the world were looking for this money and that if you were caught in this city or on the high seas or in Germany, you would have been brought back and held for the Lindbergh murder?
A: I guess I would leave it in a safety deposit box.
Q: You wouldn’t put it in a paper box and wrap it around with string and leave it with a friend would you? Not even if you knew you were going to die in Germany?
A: I guess I wouldn’t do that. People who are sick like Fisch are never very sure they are going to die.
Q: Hauptmann, did you ever play the numbers game? [Leibowitz here refers to Bolita, an illegal lottery game played during the Depression and afterwards.]
Q: You know about it. You know there is about one chance in 600,000 of winning?
Q: Did you know that there is about the same chance that more than one person will misspell the same word in fifteen different notes? In the ransom notes the word ‘light was spelled “l-i-h-g-t.” What do you think of that?
A: [No intelligible answer.]
Leibowitz did an excellent job of demonstrating to Hauptmann the weaknesses of his defense, but as Fisher predicted, he was unable to get Hauptmann to confess.