Saturday, January 23, 2016

ART OF CROSS-EXAMINATION AND THE GLASS EYE

Francis Wellman, author of The Art of Cross-Examination and a turn-of-the-twentieth-century New York prosecutor is reputed to have litigated more than 1,000 jury trials over the course of a 30 year career at the bar. During that time he gained a well-deserved reputation as a deadly cross-examiner, and his contemporaries could not mention him without also mentioning the first case in which he showcased his considerable talents—the Carlyle Harris murder trial.

Harris, a brilliant but flawed medical student at the New York College of Physicians and Surgeons, fancied himself something of a Don Juan, boasting that he could have any woman he wanted by fair means or foul. If he could have them no other way, he would talk them into a secret marriage under assumed names and then abandon them. Then he met, wooed, and won Helen Potts, a beautiful but demur girl of 19 who refused his advances until he proposed a secret marriage. Helen’s mother discovered the secret marriage and began lobbying Harris to publicly marry her daughter on pain of being scandalously exposed as a blackguard. Harris felt he could not stand exposure for three reasons: (1) It would crimp his style as a seducer of young women; (2) it would get him kicked out of medical school as morally unfit to practice medicine; and (3) it would prompt his rich grandfather to disinherit him.

Less than two weeks before Mrs. Potts’s deadline for the public marriage, Helen died after taking a headache remedy prescribed for her by Harris. The symptoms were those of morphine poisoning, and the autopsy revealed morphine poisoning. Harris was indicted for murder, and his lawyers defended on the theory that the young lady could just as easily have died of uremic poisoning. The prosecution’s “smoking gun” proof of morphine poisoning was the fact that prior to death Helen’s irises had symmetrically contracted until her pupils were mere pinpoints. All the prosecution experts testified that this symmetrical contraction of the pupils was evidence of morphine poisoning and nothing else.

The defense called an eminent expert from an out-of-town medical school, a scholar who had written extensively on the subject, to testify that the “smoking gun” was no such thing. As a matter of fact, he was aware of one case of morphine poisoning where only one iris contracted to a pinpoint and the other remained dilated. This emphatic testimony from such a highly credentialed expert had the spectators in the packed courtroom whispering that the prosecution had lost the case—but Wellman had not cross-questioned yet. We will allow Wellman himself to describe what happened when he undertook the cross-examination of the expert:

If Jerome [the defense attorney] could succeed in discovering a single authentic case where the pupils were not symmetrically contracted and where death had resulted from an overdose of morphine, the defense he had constructed with such diligence and skill would win his case, or as he probably would have expressed it "do the trick."

Accordingly he made a trip to Philadelphia and there found just the witness he needed in the person of a sweet old Professor Doctor who called himself a toxicologist and who claimed that he had made a specialty of the study of the effects of poisons for about forty years.

On the witness stand this witness lived up to Jerome's fondest hopes and gave it as his unqualified opinion that symmetrical contraction of the pupils of both eyes could not be relied upon as excluding all other causes of death but morphine. He had known a case of undoubted death from morphine, where the pupil of only one eye was contracted, the poison not having affected the other eye in any way.

If this testimony had stood the test of cross-examination, Jerome's ambition to acquit Harris would have been accomplished and with it perhaps his own reputation as an outstanding trial lawyer, but (and I cite it as still another striking example of the important part preparation plays in the outcome of a case) it so happened that I had had, roughly speaking, about five thousand cases of morphine poisoning examined and tabulated. I knew that in only one of them had the drug failed to contract both pupils symmetrically to a pin point.

Because of this investigation I thought I saw a chance to spring one of my favorite surprises. If I could lead up to it cautiously enough I might create a situation where I could pull a genuine rabbit out of the hat and perhaps even decide the case then and there.

By easy steps I persuaded the Professor to admit that the one case he had mentioned contradicted all his previous notions about the effect of morphine poisoning. BUT (now I felt that I was on dangerous ground)-

Q: Was it in the case of one of your own patients?
A: No.

Q: Was it ever authentically recorded in any medical book?
A: No.

Q: Do you know in what city the patient died?
A: Washington, D. C.

Q: Had you obtained you information about the case mainly from the Washington newspapers?
A: I had. [I was getting nearer and nearer to the identification of the one exceptional case that had been furnished me].

Q: Do you know the patient's name?
A: I don’t remember.

Q: Could I refresh your memory?
A: Perhaps. (And now I nearly stopped breathing).

Q: Was the name Mr. ---?
A: Yes. I remember it now.

Q: Did you personally investigated the case?
A: No.

Q: Well, perhaps it will interest you to know that I have investigated it and in the case you have referred to the patient had one glass eye?

Jerome nearly collapsed, along with his defense. He fairly begged the Judge to adjourn the court and give him an opportunity to investigate further (but really to get his second wind). It was no use. He tried hard the next morning with some new doctors, but his client's liberty had gone out of the window the afternoon before.

This account, which comes from Wellman’s autobiography, Luck and Opportunity, written some 40 years after the trial, is an example of two things (1) the value of preparation in dealing with an overconfident expert, and (2) the fallibility of eyewitness testimony. Wellman got the gist of the story right, but as he told and retold the story over the decades his performance became far more dramatic than it actually was. The actual transcript of that portion of Wellman’s cross-examination reads as follows:

Q. Now you state, do you not, that the symptoms [symmetrical contraction of the irises] could not be told of morphine poisoning with positiveness?
A. Yes, sir.

Q. That that was your best opinion upon your reading and upon your own experience; your own experience in twenty years is confined to one case; is your reading confined to your own book?
A. No, sir.

Q. Is your reading confined to your own book?
A. No, I say no.

Q. But I suppose you embodied in your book the results of your reading, didn't you?
A. I tried to, sir.

Q. Allow me to read to you from page 166.

THE COURT: Of what?

Mr. WELLMAN: Of his own book on Therapeutics and its Practice. (Reading.) "I have thought that inequality of the pupils"—that is where they are not symmetrically contracted—" I have thought that inequality of the pupils is proof that a case is not one of narcotism; but Prof. Taylor has recorded a case of opium poisoning in which it occurred."

Q. So that until you heard of the case that Prof. Taylor had reported in which it occurred, your opinion before that was that it never had occurred, symmetrical contraction of the eyes, besides morphine poisoning?
A. No, sir.

Q. Now, did you inquire and did you inform yourself that the case of which Professor Taylor spoke, was a case where a man had one eye?

[Objection by Mr. Jerome overruled].

Q. Before you made the statement in your book that the case Professor had cited, did you look it up and find that it had one eye? Yes or no?
A. Not according to my remembrance.

Wellman actually made the point he remembered, but he did not make it in quite as dramatic a fashion as he remembered. He also misremembered Jerome’s collapse. After Wellman had scored his point on the witness, Jerome immediately jumped up to try to repair the damage on redirect examination. He did not collapse until the following day, when he became completely exhausted and disoriented while conducting the direct examination of another expert witness. The trial was at that time in its third week, and both he and Wellman were near the point of total collapse. Judge Smyth gave the lawyers a three day weekend, and Jerome came back strong on the following Monday, fighting like a tiger to save his client from the gallows.


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