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.]
A: No.
Q: You know
about it. You know there is about one chance in 600,000 of winning?
A: Yes.
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.
No comments:
Post a Comment