CROSS-EXAMINATION AND THE ART OF SELF-IMMOLATION

 

I have been watching bits and pieces of the trial of Derek Chauvin. So far we are still on the prosecution case and I do recognize that it is always dangerous to jump to conclusions before you have heard both sides.

I have tried lots of cases in almost 50 years at the bar, both as a prosecutor and as a criminal defense lawyer. (My role as a “prosecutor“ was not to send people to jail, but to serve as a court-appointed prosecutor to remove corrupt and incompetent judges from the bench.) All that in addition to representing plaintiffs and defendants in scores of civil cases. I once made a rough calculation that in my career I spent more than 1,000 days on trial.

So I watched the Chauvin trial from two aspects. First, like everyone else, I was eager to see the real-life drama that had great consequences not only for the defendant, but also for the political and social future of our nation. (Do Republicans see different videos of officer Chauvin's knee on Mr. Floyd's neck than I do? Does Fox really think the trial is not one of today's top five news stories? Does Laura Ingraham really believe the fact that Vice President Kamala Harris has not  had a news conference in 10 days is more important than the fact that Chauvin's supervisor testified that the fired police officer used excessive force in the process of causing Mr. Floyd's death?)

Second, I couldn’t help but observe and make comments about courtroom tactics. Sometimes I made a comment to my wife who is sitting with me, and most often I made the comments to the television set. In any case, neither one responded.

I thought the prosecution's technique of interlacing video and live witness testimony was tremendously effective. It was also clear to me that the prosecutors had worked hard with their technicians to coordinate the presentation of video with live testimony. Nothing is as boring to a jury as frequent pauses in the narrative to get the right slide or video up on the screen or to replace a burned-out lightbulb in a projector. Been there, done all that. Time-consuming preparation is vital, and I thought the prosecutors did an excellent job. 

My criticism of the defense lawyer is that he apparently believes that part of the lawyer's job is to cross-examine every opposition witness. A basic fault. One of a trial lawyer's basic skills is the ability to decide when to speak up, and when to shut up.

We all learned in law school of the classic (mythic?) tale of the lawyer who did not know when to shut up and asked one question too many. The story may not be true, but it dramatically illustrates the point.

The scene: a civil trial, In which the plaintiff is suing the defendant for physical injuries suffered in a barroom fight.  Plaintiff's witness testified on direct he was there when the defendant had bitten off the plaintiff's ear. On direct, he never did say he actually saw that happen, and defense counsel, instead of saving that gem for his summation, proceeded to screw the pooch. The transcript of the cross read something like this:

"Q: So let me get this straight Mr. Witness. The fact is you did not actually see my client bite off the plaintiff's ear. Correct?

A: Yes sir, that’s true."

Dangerous enough, but the lawyer went on to jump off the cliff:

"Q: So why did you testify that he did so?

A: Because I saw him spit it out."

In the Chauvin trial, I watched a portion of the testimony of a young woman off-duty emergency medical technician who happened upon the scene. Her direct testimony was to the effect that she recognized Mr. Floyd was in distress as a result of the officers pinning him down in the prone position, with one of them having a knee on the back of his neck. She offered emergency medical assistance but was rebuffed by a police officer.

Her direct testimony described what she observed. On cross-examination, Chauvin's lawyer attempted to discredit her observations. This was entirely unnecessary (and highly unproductive) given that the jury already knew exactly what had occurred because they had seen a 9.5-minute video of what had occurred. Why would the defense want to rehash those awful facts? I thought the defense lawyer would simply pass the witness.

But instead, he tried to discredit her observations by suggesting she was so dismayed by the scene that her descriptions were inaccurate. The cross went something like this:

"Q: Were you angry?

A: Yes I was.

Q: You were upset?

A: Yes, It was upsetting to me to watch that policeman kill that man.''

Today's overall conclusion:

Even discounting the fact that I was listening to only one side so far, I do not see how Chauvin could escape at least a manslaughter conviction, unless one or two jurors, acting on rock-ribbed racial prejudice, vote not guilty and hang the jury.

In that event, Chauvin would certainly face another state trial, and perhaps a federal civil rights indictment and trial as well.

A bientot.

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