Killer Cross Examination

You’ve seen the interviews. Client sitting there. Lawyer next to her. And a reporter conducting an interview of them while the case is under investigation or while pending. Mia Ponsetto just did it, with her lawyer. Casey Anthony did it, with her lawyer. Others have done it with their lawyers too.

DON’T BE LIKE MIA. OR HER LAWYER.

In this episode, I explore these disastrous interviews and why you and your lawyer should avoid them at every turn.

The Eighth Amendment of the US Constitution commands that no person shall be held on excessive bail.  Michigan’s statute and court rules repeat that refrain.  No excessive bail.  Yet how do you define excessive? How is the process to bail people out? How is it abused? Is it fair?

In this episode, I describe this process including a recent horrible experience that I had on a holiday.  The system failed - short circuited.  Listen in.  I want you to hear the story, understand how these hearings are misused and why cash bond is a dangerous tool to give a magistrate who knows nearly nothing about the case or the accused.

Your lawyer is your advocate, your friend, you counselor, your voice, your support system and your advisor so it seems obvious that you ought to tell your lawyer the truth. It seems obvious that you shouldn’t mislead your lawyer or withhold critical or important information.  Yet, this happens too frequently.  When you lie to your lawyer, you’re lying to yourself.

In this episode, I explore what happens when clients lie to their lawyers, how dangerous it is, how they undermine the lawyer’s ability to defend the client and how it is akin to tying our hands behind our back and tying our shoelaces together in a fight.

Take a listen.

Criminal defense is not for the weak or weary. Nor is it for learning or experimenting or to get experience. And it is not for older lawyers, past their prime, to “stay active” or to dabble here or there. We’re dealing with lives, liberty and reputations. We dealing with life changing consequences. Like surgeons. Baby doctors looking for experience or octogenarian internists looking to stay in the game don’t perform surgeries. Surgeries have real consequences and as a result we require surgeons to be experienced to ply their craft. Defense lawyering is no different. It’s time to stop treating our field like it is for anyone ... it is not. It is not for the weak or weary.

Prosecutors have a tremendous amount of power. I should know, I oppose them daily. Not to mention that for a very short period of time, I was one. In fact, upon hearing that I was a prosecutor once, the famed cowboy lawyer from Wyoming, Gerry Spence, said to me, “I forgive you, my son.” But I digress. Prosecutors have tremendous power. Among the most significant of their powers is the obligation not turn over what we call Brady evidence. 

Brady evidence is evidence that tends to help the accused and believe it or not, prosecutors decide for themselves what is and what is not Brady evidence. Sure sometimes we catch them in their failure to disclose it or the fact that they possess it but more often than not, we are left to trust that they have turned it over. Some prosecutors are very good at disclosure. Some, awful. This episode breaks down Brady evidence and how we can improve the legal system to ensure that accused citizens and their lawyers get Brady evidence and don’t just rely on prosecutors to turn it over.

Queen’s Gambit is a television show about chess. Bobby Fisher, perhaps the most famous/infamous chess player in history, once proclaimed that “chess is life.” In many ways, this is true. It is certainly true of litigation, criminal defense cases and the cross examination. When I cross examine, we are trying to think many moves ahead so that nothing our opponent does comes as a surprise. Rather, we are trying to maneuver our opponent, whether it be the prosecutor or a witness, into a bad position. Recently we obtained a dismissal in a very high-profile case in a traffic related death case. Rockind Law was the third law firm to get involved in the case and like a chess player, we surveyed the board, considered the possible moves and put in place a strategy to corner our opponent and obtain a dismissal. In the Queen’s Gambit show, Elizabeth Harmon, the star of the show, is known for visualizing her moves and the board. We did this in our most recent win. In this episode, the Queen’s Gambit Episode of our podcast, I walk you through that victory and strategy.

“If I find anything that you haven’t told me about, I’ll shred your house apart.”

There is not much ambiguity in this statement. A seasoned police detective in the presence of another uniform officer said this to a scared 18 year old who had just been arrested. The kid became physically and noticeably ill. When he summoned up the courage to inquire about a lawyer, he was put off. When he asked to make a call to his unsuspecting mother and grandmother, who were at home, he was put off. This is intolerable. All lawyers should not only condone this behavior, but do what you have to put a stop to it.

Yet, I’m still in court defending the case with attempts being made to compartmentalize the misconduct or say that it doesn’t change anything.

This episode is devoted to this case, this fight. 

We recently won a criminal case in which a judge suppressed evidence that was illegally seized.  We knew that the traffic stop and arrest of our client was a pretext.  It was all done so that the officer could get into our client’s car. But how would and how could we prove it.  We setup a cross examination that would reveal the officers true motivations and show that he had no evidence that our client committed a crime, but stretched the law anyway in order to accomplish his goal — getting into his car to do a search.

We're told that Congress is full of lawyers but why then are Congress(wo)man and Senators generally so bad at questioning witnesses?  Save a couple, e.g., Rep Katie Porter, they are.  I'm not arguing.  I'm stating a fact.  In Episode 22, I get back to some basics of cross examination and offer some tips on how to control witnesses, how cross examination is like a sales call (remember "Boiler Room" or Glengarry Glenross) in which  a sale is happening with every question and answer - either you're selling them on the fact that the witness is a liar and not reliable or the witness is selling them on the fact that you are not credible and your client is guilty or you’re on the losing side.

The Breath Alcohol Testing Program has been under attack.  For weeks, I’ve been exposing the breath test program for the sham that it is.  In Episode 21, I really take apart the program for its lack of transparency and how the program has been set up to insulate the program, the units, the operators the technicians from full confrontation and cross examination.  Our cross examination in this case has opened a lot of eyes but it’s just one case.  In this episode I pull no punches. The logs, the record keeping, the Sgt. Schultz - mentality of the daily operators and the protection given to the program are as Un-American as can be and its about time someone points this out and that someone is me.