01 October 2018

HORROR SHOW: A TRIAL LAWYER"S PERSPECTIVE






Doing some quick research last year for my memoir, I tracked back as well as I could to recall how many days I spent actually on trial during my 50-year career as a litigator. I don't mean taking depositions, arguing motions and appeals. I mean actually on trial, in a courtroom, examining witnesses, mostly before a jury, sometimes just a judge.  When I reached 500 days, I stopped counting.

Riveted to the TV screen watching the testimony of Christine Blasey Ford and Brett Kavanaugh, I could not help making a professional appraisal of their direct testimony and their response to cross examination, the latter stilted by an absurd 5-minute rule that hobbled any realistic pursuit of apparently false statements by the witness.

In those 500+ days in courtrooms all over the country,  I have examined  hundreds of witnesses on direct. I prepared them as thoroughly as I could so they could convey a complete and understandable narrative. I advised them to be concise and responsive on cross, but to answer every question honestly without volunteering information that goes beyond the boundary of the question. And never be evasive, because a good cross examiner will flay you, and the jury will punish you. And try to be responsive without being accusatory of the lawyer questioning you, or your adversary. Jurors want facts, not attitude.

And of course, I have seen direct examinations presented by my adversaries. I am sure their lawyers gave similar advice.

In all that time, I have never seen, as my witness or an adversary's witness, the likes of Christine Blasey Ford. Her direct was a compelling tale that no neutral observer could disbelieve. It was emotional but not sappy. The words that best describe it  are "credible and persuasive." When cross examined by the prosecutor chosen by the Republican majority, she was fully cooperative, and sometimes hit the ball out of the park. No good lawyer would, on cross, ask a question to which she did not know the answer.  But when the chosen prosecutor tried to challenge the polygraph Dr. Ford took on her lawyer's advice, by asking the travel-shy witness why it was taken in an out of town hotel room, Dr. Ford answered it was in the city of her grandmother's funeral she had attended that morning.  Gasp. 

When Senator Leahy asked what was outstanding in her memory, she answered it was the laughter of the drunken boys while Kavanaugh was trying to rip her clothes off. Dynamite, and totally believable. When Senator Durbin asked how sure she was that it was Kavanaugh, she leaned into the microphone, and said "100%.  When Senator Feinstein asked about that, the witness said " I am sure it was Kavanaugh as I am sure I am talking to you." She then went on to explain the neural process that makes this kind of trauma indelible in one's memory, while surrounding details fade away. 

She asked for an outside investigation of her testimony and the surrounding facts by the FBI so she could be "more helpful" to the Senators.

While Ford's testimony was unvarnished, dramatic, and obviously truthful, Kavanaugh's was none of the above.

 Judge Kavanaugh's lawyer is an intelligent, experienced litigator, but I have the sense Kavanaugh was not prepped by her, or in any event ignored her advice. I believe instead he was managed by White House counsel Don McGahn, who channeled Donald Trump.

During Judge Kavanaugh's testimony, I commented that I would pay money to cross examine him, and I estimated that so would most trial lawyers I know. His direct, which he said he prepared by himself, was full of angry and demonstrably false statements, such as claiming witnesses had "refuted" Ford's allegations, when in fact they said they could not remember. Indeed, one of those witness said she believed Dr. Ford's testimony was accurate. He blamed the "jury" for the hearing, and made political rants. When asked if he watched Dr. Ford's testimony, he said "NO."  Would anybody believe that? 

His cross examination was telling, despite the absurd five-minute rule. I could have spent hours tearing apart his evident lies about his calendar. After "skis" (brewskis in Georgetown Prep parlance) he "ralphed." This, he said, meant he threw up because he put ketchup on his spaghetti! 

 He told evident lies about the yearbook page that boasted that he and the entire football team had sex with a girl named Renate. And when questioned about blacking out, stumbling out of a bus at 4 a.m. after a lot of "chugging," he turned and asked two senators whether they liked beer, whether they ever blacked out. And of course his testimony about the "Devil's Triangle" was obviously false. It clearly referred to a menage a trois, not some drinking game he could not describe, but the cross examiner had no time to pursue. 

Most telling was Kavanaugh's Trumpian rant that Dr. Ford's testimony was part of a Clinton smear resulting from Trump's 2016 election. The claim was obviously absurd because Dr. Ford told others about Kavanaugh's sexual assault as early as 2012.  A real cross examiner would have had a field day with that.

There are many more subjects of promising cross: the definition of "boofed" (he testified it meant passing gas, when all contemporaries agree it means anal sex), his evasion of the question of whether he ever passed out from drinking too much. He said he never blacked out, but he went to sleep. 

And any decent cross examiner would surely have pointed out his judicial opinion praising the validity of polygraph tests, and asked him if he were willing to take one too.

His entire demeanor suggests he switched from the placid, measured tone testimony of his prior appearances before the Committee, and on Fox, to the angry aggressive, "fight back" mode because that's what the White House wanted to see.  But while Trump tells outrageous and obvious lies and carries it off, when Kavanaugh tried it, it backfired.

There is no doubt a real jury, i.e., an array of impartial observers, would characterize Kavanaugh as arrogant, supercilious, evasive, and fundamentally dishonest.
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And all of the above relates only to the truthfulness of his testimony. I suggest his temperament, and stark political attack, make him unsuitable for a position on the Supreme Court, or any Court for that matter. See the ABA Model Code:

"Rule 1.2: Promoting Confidence in the Judiciary

A judge shall act at all times in a manner that promotes confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."

 Conclusion: By their "Yes"votes, all eleven Republican "jurors" must necessarily have found Dr. Ford's testimony to be not believable, and Kavanaugh's to be believable. The great irony is that while effecting such an obvious mischaracterization of the evidence, the post-Merrick-Garland Republican majority nevertheless had the chutzpah to accuse the Democrats of  playing politics with a Supreme Court nomination!

Shame, shame, shame.

Ah, but reality bites. The Trump-led Republicans have no shame. They obstruct Obama's nomination, support a dishonest Trump nominee,  Trump berates McConnell, and McConnell will bull-rush ahead with confirmation of this obviously impaired candidate.

Welcome to the impaired Supreme Court, Mr. Justice Brett Kavanaugh.

A bientot.



N.B. For an interesting article on the frequency of blacking out after heavy drinking, see: