What's Wrong With This Picture?
by Victoria Toensing
Lasch," lectured Judge Mary Lupo during a court-imposed interruption
in the cross-examination of William Kennedy Smith, "this is not a
course in trial practice." With all due respect, Your Honor, yes
cross-examination of Smith recalled that childhood game in which one is
shown a picture, such as a living room with a three-legged table and
curtains that do not match, and is asked to list “what's wrong with this
picture.” Everything was wrong here. Her questions were wrong;
they were argumentative, repetitive, based on facts not in evidence, and
asked to elicit the witness's opinion of the credibility of other witnesses.
The technique was also wrong: By asking open-ended questions, Lasch lost
complete control of her witness.
But let's be
fair. The prosecutor was at a disadvantage. For weeks before the
trial, defense counsel Roy Black possessed every statement that every
government witness had given to the police and prosecutors. Lasch, on
the other hand, had no idea what Smith's version of the evening would be
until he took the stand. Black cleverly omitted any details from his
however, can be minimized if it is understood that cross-examination starts
long before trial, during trial preparation, when the lawyer decides the
central message to be conveyed by a particular witness. Throughout it
all, the cross-examiner must maintain control - control over the direction
of the cross, control over the defendant witness, and control over those
final questions, which leave a lasting impression on the jury.
the cross-examination with a direction in mind, but it was clearly not an
effective one. She first asked Smith numerous questions about his
physical size and asked him to list the sports that he played. By the
time he had gotten to tennis, horseback riding, and diving, the jury must
have felt he was the All-American boy.
she have asked? Other introductory themes were obvious pretrial and
could have at least set a different tone. For example, what about
the cavorting on Good Friday, the most solemn of holy days for Catholics?
You were raised Catholic, weren't you, Mr. Smith? The Kennedys are
very devout Catholics, aren't they? And Good Friday is a day of
atonement, isn’t it, Mr. Smith? In fact, isn’t it a day when many
serious Catholics would not think of drinking at a bar? The answers do
not matter as much as the theme established by the questioner.
style of questioning builds and repeats, leaving an impression embedded in
the juror’s minds. How could a juror not be affected by the powerful
impression Roy Black created during his cross-examination of Anne Mercer?
Again and again, Black drove home the point that Mercer had gone outside,
where it was dark, with his so-called rapist, and went down the stairs,
where it was dark, alone with this alleged rapist. . . .
any opposing witness is important; over the defendant it is crucial.
An experienced trial attorney knows to keep such tight control of cross that
the witness should not even be given a Magic Marker to indicate a position
on a chart. But that's hardly what Lasch did when she asked Smith (Dr.
Smith) his opinion about how Patty Bowman got her bruises. Smith
smirked and responded, "If you are asking me how a person who is on
blood thinner got bruises. . . . " The jury probably did not care
what the rest of his answer was.
But the worst
open-ended question came when Lasch asked Smith what motivation Bowman could
have had for saying he had raped her. Smith looked like he had been
let loose in a candy store. In shades of Clarence Thomas, Smith said,
"I do not understand why somebody would destroy someone's career . .
. attack someone's family. . . . But that's not the issue here. The
issue here is, I'm innocent. And how do you defend yourself from
someone who says the word rape over and over again?"
obvious technical failure on Lasch's part was overkill. On direct
Smith had testified that he felt he had been "picked up" by
Bowman. Lasch pursued the theme with a mallet, arguing with Smith,
improperly, about his "animal magnetism."
could have taken a different approach: Mr. Smith, you claim you were picked
up by Ms. Bowman, but you just testified that you said "hi" to her
first, didn't you? You claim you were picked up by Ms. Bowman, but you
testified it was you who offered to buy her a drink, wasn't it?
If the witness
has revealed no smoking gun, the cross-examiner should at least have
prepared a final set of questions designed to make a good point, even a
nice safe one. And whatever the witness says, the examiner's last look
and words should leave the jury feeling that she liked the answer.
Lasch, in her
last six eternal minutes with Smith on the stand, flipped through pages and
pages of legal pad, apparently making sure she had not skipped something.
She asked only three questions during these final moments, none of which
made any thematic point. Yes, Smith admitted to Lasch, he did have sex
on the grass near his mother’s open window (my gosh, we react, but would
he rape someone under Mother’s window?) and no, as a medical doctor he had
no opinion (for about the eighth time) about how she got her bruises.
The mark of a
fine trial attorney is that she never permits the jury to know when
something goes wrong. Whatever the witness says, counsel should look
as if it was a favorable response. Throughout trial, but particularly
during Smith’s cross, Lasch forgot the audience factor. Instead, she
projected defeat. It’s surprising it took the jury as long as it did