NEW LINDBERGH KIDNAPPING CASE BOOK AND CROSS-EXAMINATION

Talbot Publishing recently released my co-author Bob Dekle’s book entitled Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann.  Although the Lindbergh kidnapping case has been written about innumerable times, never before has the trial of Bruno Richard Hauptmann been meticulously researched and analyzed. Bob and his co-author Jim Dedman have done just that.            

The book is somewhat reminiscent of Vincent Bugliosi’s book Outrage: The Five Reasons O. J. Simpson Got Away WithMurder. In Outrage, Bugliosi, who had prosecuted Charles Manson, explains how he would have prosecuted Simpson, along with providing examples of what he would have done, such as what he would have said in closing argument.

Lindbergh Kidnapping Case is instructive on how to conduct a cross-examination. For instance, one of the prosecution witnesses at the Hauptman trial was John Conlon, an interloper who was involved in the negotiations over the ransom. This is how the book assesses defense counsel’s strategy in cross-examining Conlon:

Reilly adopted the wrong strategy for the examination of Condon. Instead of attacking the implausibility of Condon’s testimony, he attacked Condon personally. What Reilly succeeded in doing by aggressive verbal sparring with Condon was to highlight Condon’s wit in repartee, which in turn masked the implausibility of his testimony. . .

Rather than merely criticizing the strategy, the book recommends effective techniques that could be utilized as follows:

Reilly should have attacked the plausibility of the testimony, not the personality of the testifier. Snide remarks and personal assaults proved counterproductive and resulted in this portion of the cross-examination being diverted down a rabbit trail of arguing over the meaning of words. He would have done better by asking a line of tight and controlling single-fact questions. Such a line of questioning might have gone thus:

Q: You attended a lineup at the Greenwich Street police station in New York?

A: Yes.

Reilly should expect Condon to append a verbal barrage to his affirmation, but he should not take the bait. Rather he must relentlessly pursue the non-identification.

Q: The police asked you if anyone appearing in the lineup was the John whom you met in the cemetery?

A: Yes.

Q: Bruno Richard Hauptmann was in the lineup?

A: Yes.

Q: At that time you did not identify Mr. Hauptmann as John?

A: I identified Mr. Hauptmann at that time but I made no declaration of identification.

The Lindbergh Kidnapping Case is the perfect read for anyone interested in the Lindbergh case, an insightful telling of the story of the Hauptman trial, and a superb tutorial on trial strategies and techniques with illustrations from this famous case.

BILL COSBY’S CROSS-EXAMINATION

Should Bill Cosby ever go on trial and decide to testify, the cross-examination could be a prosecutor’s dream come true. Montgomery County, Pennsylvania district attorney Kevin Steele just recently charged Cosby with aggravated indecent assault upon Andrea Constand that allegedly occurred in 2004.

            Important to the prosecution’s case is the deposition of Cosby taken pursuant to Constand’s civil suit, which eventually settled in 2006. A federal judge released the deposition this past July. And, the media’s emphasis on the deposition as the reason for the re-evaluation of the case and the filing of charges against Cosby has overshadowed the other evidence in the case. A review of the Affidavit of Probable Cause reveals numerous admissions by Cosby that can be used during both the prosecution’s case in chief and the cross of Cosby if he takes the stand (quotations in this piece are from the Affidavit).

            Suppose you were the prosecutor planning the cross-examination of Bill Cosby. Your primary goal would be to elicit concessions supporting your case theory or undercutting the defense case theory. Here, let’s just focus on obtaining information on cross to bolster the prosecution’s case. Utilizing the concession-seeking methodology explained in the Cross-Examination Handbook (Chapters 3 and 4), begin planning with the prosecution’s legal theory, which is aggravated indecent assault under Pennsylvania law, which in pertinent parts provides:

§ 3125.  Aggravated indecent assault.

(a)  Offenses defined.. . a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:

(1)  the person does so without the complainant's consent; . . .

(4)  the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring;

(5)  the person has substantially impaired the complainant's power to appraise or control . . . her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants . . . for the purpose of preventing resistance; . . .

     Narrowing the focus more, assume you are seeking Cosby’s concessions to facts supporting two elements of the charge: (1) Cosby committed a sexual act that qualifies under the statute and (2) Cosby substantially impaired Constand’s power to appraise or control her conduct by administering or employing without her knowledge, drugs or intoxicants for the purpose of preventing resistance.

            First, regarding gaining concessions from Cosby concerning the sex act he committed upon the victim, what evidence exists that would require him to concede on cross that he did it? It isn’t only what he said during the deposition.  Before the deposition he not only admitted the acts to the police but also to the victim’s mother. The victim told her mother what Cosby had done to her, and her mother called Cosby. The Affidavit of Probable Cause states that Cosby admitted the sex act to the victim’s mother. On January 14, 2005, Cosby was interviewed by the police and he admitted “he touched her bare breast and her private parts (genitalia).” When asked if he had sexual intercourse with the victim, he said “never asleep or awake.” During the deposition, Cosby admitted that he “digitally penetrated the victim’s vagina.” With these prior statements by Cosby, the prosecutor can construct a series of questions to establish the sex act element of the charge. In the unlikely situation that Cosby were to deny committing the act, the prosecutor can impeach him with the prior inconsistent statements (see Chapter 7 in Cross-Examination Handbook for techniques for impeachment with a prior inconsistent statement). It is unlikely that Cosby will deny making the statements, and the defense is probably going to be consent. The defense likely will own the admissions during Cosby’s direct examination in order to pull the sting. Besides, the prosecution will offer Cosby’s admissions during its case in chief.

            Second, the defense is more likely to claim that Cosby did not provide the victim with drugs to prevent her from resisting, that Cosby didn’t substantially impair her or both. What concessions must Cosby provide on cross to the effect that he did these things to the victim? Again, Cosby is locked in by his prior statements to the victim’s mother, the police and in the civil case deposition. He’ll either provide the cross-examiner with concessions or be impeachable with prior inconsistent statements. He gave conflicting stories about the nature of the drugs. He told the victim that the pills were herbal. He told her mother that the pills were of a prescription kind but that he had bad eyesight and couldn’t read the bottle. He promised to write the name of the drug down and mail it to her, but didn’t. Then, Cosby told the police “he gave the victim Benadryl, which is an over-the-counter medicine not dispensed in a prescription bottle as Cosby told Mrs. Constand.” During the deposition, he testified “that after some initial conversation, he went upstairs and got pills, ‘brought them down,’ and ‘offered them to [the victim].’ Cosby testified that he gave the victim three halved pills, which he described as ‘three friends to make [her] relax.’ This is contrary to his statement to police, in which Cosby said he gave her ‘one whole and then one…half.’”

            In addition to Cosby’s inconsistent prior statements  about the pills, which constitute evidence of awareness that he was using drugs to impair Ms. Constand, and his efforts to minimize the nature of the drugs and claim consent, he must admit on cross to statements and actions that are consistent with a person who has committed a wrongful act. He will either admit to them or be impeached, again with prior inconsistent statements. The Affidavit of Probable Cause explains: “Further indicative of Cosby's consciousness of guilt is the fact that, when confronted by Mrs. Constand over the telephone, he apologized to both her and the victim, while offering significant financial assistance. Cosby not only offered to pay for the victim's therapy, but also her graduate school tuition and expenses for travel to Florida. Investigators recognize that individuals who are falsely accused of sexual assault generally do not unilaterally offer generous financial assistance, and apologies, to their accuser and their accuser's family. To the contrary, such conduct is consistent with offenders who are seeking to make amends for wrongful behavior and prevent involvement by law enforcement.” On cross, the prosecutor can extract concessions from Cosby to the effect that he offered to pay and that he apologized. Then, the prosecutor can argue in closing that the admissions prove the defendant committed aggravated sexual assault.

       All in all, Cosby’s prior statements provide plenty of admissions to introduce in the prosecution’s case in chief and harvest again on cross-examination.

       And, then there is the 404(b) evidence, which could provide more concession-seeking content for cross-examination of Bill Cosby.

Afternote: Going back over a year, the Seattle Times on November 10, 2014, under the headline “Prosecutor on Cosby allegation: ‘I thought he did it,’” reported:

“When Bruce Castor, then the Montgomery County District Attorney, decided not to file sexual-assault charges against comedian Bill Cosby in 2005, it wasn’t because he didn’t believe the woman who said Cosby had drugged and groped her.

“’Now I can say I thought he did it,’ Castor said in an interview Wednesday. ‘But back then I would have been accused of tainting the jury that was going to hear the civil case.’”

COLD READING TECHNIQUE FOR CROSS-EXAMINATION

Years ago a friend of mine asked me (Bob Dekle) to watch a late night television show with him. In the show, a psychic summoned dead relatives from beyond the pale to talk to his guests. The show began with some appropriate music, a video of stars swirling in the galaxy, and a voice-over talking about communicating with the dear departed. The star came onstage and summoned the first subject to join him. After a few preliminaries, the psychic began his spiel, asking questions of the subject and then making remarkably accurate observations about the person whom the subject wanted summoned from the beyond. Before the ghost of the departed relative made his appearance, I said to my friend, “You see what he’s doing, don’t you?” My friend had no idea. I explained. “The psychic is picking the subject for information and then feeding it back to her.” My friend considered what I had said for a moment and then replied, “You sure know how to spoil a party, don’t you?”

Although I didn’t know it at the time, I had just witnessed my first “cold reading.” Cold reading is a technique used by psychics to extract information for use in conjunction with Tarot readings, séances, and the like.  Con artists also use the technique to extract money from their victims, and confidential informants use it to give the appearance of assisting law enforcement without really telling the officers anything that wasn’t already known. The Full Facts Book of Cold Reading gives a thorough description of the techniques involved. In reading that book, I was struck by the similarities between cold reading and concession-seeking cross-examination.

1.    Both techniques are tools of persuasion. In the one the audience for persuasion is the person being questioned, in the other the audience is the jury.

2.    Cold reading seeks to persuade the subject what wonderful talent the reader has; concession-seeking cross-examination seeks to persuade the jury what a wonderful case the examiner has.

3.    Cold reading seeks to achieve persuasion by discovering previously unknown facts to use in achieving persuasion; concession-seeking cross examination seeks to achieve persuasion by disclosing previously known (or strongly suspected) facts to use in achieving persuasion.

4.    Cold reading achieves persuasion by extracting facts from unwitting subjects; concession-seeking cross-examination achieves persuasion by extorting facts from unwilling witnesses.

 

5.    Both techniques work from general and non-controversial facts to specific and vital facts.

A cold reading might progress something like this:

Q. I’m getting the feeling that there is a significant person in your life whose name starts with J—perhaps Jane or Jamie or Joan, does that feel right to you?

A: Well, I don’t have any girlfriends, but my boss is named John.

Q: John is a significant person in your life?

A: Yes, very.

Q: This wouldn’t involve issues relating to John’s making unfair demands upon you?

A: No, nothing like that.

Q: I didn’t think so. So you have a cordial relationship with your boss?

A: Yes. I really enjoy working for him.

Q: John has more or less taken you under his wing?

A: Yes.

Q: Mentored you?

A: Yes.

Q: Tried in every way to help you to succeed and excel?

A: Yes.

Q: He might even be grooming you to take over his job when he retires.

A: Yes, that’s right. How on earth could you possibly know that?

Assume that John is the defendant in a lawsuit and this person is called as a witness on his behalf. A concession-seeking cross-examination seeking to lay the groundwork for an impeachment for bias might run something like this.

Q: You’ve worked for John for quite some time?

A: Yes.

Q: You have a cordial relationship?

A: Yes.

Q: You enjoy working for him?

A: Yes.

Q: He’s taken you under his wing?

A: Yes.

Q: Mentored you?

A: Yes.

Q: Helped you to excel in your job?

A: Yes.

Q: In fact, he’s mentoring you to take over his job when he retires next year?

A: Yes.

Q: You owe him a great debt of gratitude?

A: Yes.

The difference between the two is that the cold reader begins with a plausible guess, draws reasonable inferences from the facts admitted, and discovers a fact which convinces the subject he has true psychic powers. The concession-seeking cross-examiner begins with an uncontested fact and builds upon that fact with reasonable inferences and other known facts to the point of painting the witness into a corner where the witness must admit a disagreeable fact.

One of the best jobs of employing this technique which I have ever witnessed came in a double murder case occurring at a pool hall. The only eyewitness to the crime was the defendant’s brother, who steadfastly refused to testify. Finally, the witness was persuaded to testify in order to be released from a jail sentence for contempt of court. If he had been directly asked about the killing, he would have immediately [and somewhat truthfully] said “I didn’t see nothing.” The cross-examiner began the examination with non-controversial facts, such as the fact that the two brothers went out on the town the night the murder occurred. Moving slowly and methodically from that uncontested fact to other uncontested facts, the examiner slowly drew the noose tighter and tighter. By the end of the cross-examination the examiner had the witness standing outside the pool hall with his brother, who was angry over some slight perpetrated by one of the two men in the bar. The examiner slowly walked the witness through his brother’s opening the trunk of the car, removing a sawed-off shotgun, checking to see if it was loaded, and going back into the pool hall. Then the examiner had the witness describe the report of two gunshots followed by his brother leaving the pool hall and putting the shotgun back into the trunk. Mission accomplished.

The author of Cold Reading describes this technique as the “cream principle.” When creaming coffee, pour in a little at a time until you get it right. If you try to put it all in at once, you will likely ruin the coffee.  The author’s “cream principle,” as well as several other techniques he describes, can very profitably be used by the concession based cross-examiner. 

SANDUSKY TRIAL: ASKING THE “WHY” QUESTION ON CROSS

Cross-Examination of the Last Defense Witness - Dottie Sandusky

Today, the defense rested without calling the defendant Jerry Sandusky in what has been described as the “child-sex scandal that rocks Penn State.” So, let’s take a look at the cross of the defense’s last witness – the devoted wife Dorothy “Dottie” Sandusky.

Prosecutor Joseph McGettigan didn’t heed the admonition that you should never ask a “why” question on cross-examination during his examination of “Dottie” Sandusky. McGettigan asked if she could think of any reason that the witnesses who accused her husband of sexually abusing them or Mike McQueary, a witness who testified to seeing abuse had any reason that she could think of to lie about these accusations. Generally such an open-ended interrogatory question should be avoided because it turns the control over to the witness and the examiner is likely to get an unfavorable answer.

However, sometimes, such as in this case, the “why” question is appropriate for several reasons. First, the case against Sandusky is strong, with eight men saying that he abused them. Second, Dottie Sandusky, had a built-in apparent bias and could be shielding her husband. Third, her testimony directly conflicted with the accusers’ – she never heard a cry for help from the basement as testified to by one accuser. Fourth, the likelihood that she could advance a more damaging answer than her lawyers had already broached (they did it because they thought they might profit from a law suit against Sandusky) was low.

Given these circumstances, asking the “why” question was justified. And, the answer was helpful to the prosecution: “Would lie?" she asked. "I don't know what it would be for."

CROSS-EXAMINATION SKILLS FOR CRIMINAL CASES

Learning Cross-Examination Techniques for Criminal Cases Through Experience

Of course the best way to learn how to cross-examine in criminal cases is to be either a prosecutor or criminal defense counsel and try a lot of cases. It is not unusual for defense counsel or a deputy prosecutor to learn by trial and error in trial. The downside is this sink-or-swim schooling in cross-examination can be not only the drowning of the cross-examiner but also someone else.

Another method is to practice cross-examination in professional development workshops for prosecutors or defense counsel or in law school classes where no one is hurt in the process. Cross-Examination Handbook offers opportunities for cross-examinations in two criminal cases that can be used in either law school or prosecutor or defense counsel workshops.

Case Files, Actors’ Guide and Teacher’s Manual

Cross-Examination Handbook comes with all the materials necessary for role-play performance exercises for cross-examination strategies and skills, including: case files; an Actors’ Guide with instructions for the witnesses, and a Teacher’s Manual (100 pages) covering how to conduct the cross-examination exercises as well as a schedule for professional development workshops and a syllabus for law school classes. The two criminal cases are State v. Gary Goodman and State v. Byron Ward Howland. Both fact patterns are based on actual cases.

State v. Gary Goodman

Gary Goodman and his brother Barry went to the Infernal Club for an evening of dancing. Gary Goodman had a .38 caliber revolver in his coat pocket. While they were inside the Infernal Club, Barry Goodman became engaged in a “staring” contest with Moe Helton, a local drug dealer who had a history of bad blood with Barry. The staring contest escalated into a confrontation, and the confrontation escalated into a fistfight. Barry came off second in the fistfight and Helton began to get the best of him.

Gary Goodman, who had been dancing on the dance floor, noticed the altercation and went over to intervene. Goodman drew the revolver from his pocket and began shooting. John Elder, a business associate of Helton in the drug trade, attempted to intervene in the fight, trying to disarm Gary. Gary shot Elder in the stomach. When Gary shot Elder, Shemp Campbell, another drug associate of Helton, also intervened and was able to disarm Gary Goodman. When Goodman was disarmed, he and his brother fled the Club. Moe Helton was pronounced dead on arrival at the Lincoln County Hospital, and John Elder underwent emergency surgery to repair the damage done to his stomach by the bullet. Barry Goodman was treated at Riverton Hospital for trauma suffered in the fight with Helton. Gary Goodman is charged with murder in the second degree, attempted murder in the second degree, and carrying a concealed firearm.

State v. Byron Ward Howland

State v. Byron Ward Howland is a high profile criminal case. The Lincoln County Prosecutor’s Office has charged state legislator Byron Howland with rape in the second degree, communicating with a minor for immoral purposes through electronic communication and three counts of child rape in the third degree.

The prosecution contends that Howland is an Internet predator who lured in 15 year-old Jenny Sells first through talks in a chat room and later by inviting her to his condominium where he resided when he is attending a legislative session is the state capitol of Georgetown. Allegedly, Howland raped her in his condo in December two years ago. Afterwards he expressed remorse, and their relationship continued until June last year when Jenny’s mother took printouts of their Internet exchanges to the Georgetown Police Department’s Detective Bill Hutchinson. Jenny told the Detective about her relationship with Howland. Howland has made no pretrial comments about the case except that it is “patently false.”

The Assignments

The law school class or CLE workshop assignments for cross-examination correspond to chapters of Cross-Examination Handbook and provide practical experience in the areas covered by the chapters. For example, chapter 6 covers how to impeach a witness with a prior inconsistent statement and assignments and Case File materials are provided so that law students and practicing lawyers can perform such an impeachment with. The versatility of the materials allows the instructor to select as many or as few of the assignments for the students/attorneys to perform as the instructor wishes to cover.

Each assignment comes with suggested reading, which the instructor may assign. For instance, the instructor may assign readings in Cross-Examination Handbook to which the assignment is cross referenced with suggested selected readings for each assignment.

For more information about the two civil cases and Cross-Examination Handbook, visit the book’s website here.