Killer Cross Examination

IN MEMORY OF F. LEE BAILEY

I was fascinated with his career, his swagger and combative style for as long as I can remember. How couldn’t I be? He dropped out of law school but yet still became a lawyer and among his first cases was the appeal, defense and acquittal of Dr. Sam Shepard, the doctor who was wrongly convicted of killing his wife whose story was the loose basis for the movie, The Fugitive.  From early on, F. Lee Bailey, walked with a heavy foot leaving an impression in the legal system and society beyond.  This last week, Bailey passed away at the age of 87.  Despite a career that includes participation in some of the most important, notorious and high profile cases in the 20th Century, Bailey is still, in my opinion, not given his due.  No case was too unpopular nor controversial for Bailey, who took on the defenses of the Boston Strangler, Sam Shepard, Curtis LeMay in the My Lai massacre, Patricia Hearst and OJ Simpson to name just a few.  

I have no interest in litigating his strengths or weaknesses here. But I’ll just say that if he was on your side, he was as he was proud to say so and stay there forever. These are admirable qualities in any age but particularly so today. I write about him, in a eulogy of sorts, and I do so because many of the younger generations do not recognize his name or the shadow he cast as a young lawyer or in his career.  They may know him from Simpson trial and the now well-known cross examination of the Mark Fuhrman. Few know much him about before that which is sad. Before social media, e.g., Tik ToK, Instagram, Facebook, etc. made self-promotion and advertising a thing, one had to earn the attention of the media, admiration and “following” of the public and respect of the general public. One had to actually do something – win cases, chart a new course, be innovative, etc.  Bailey did all of that and was all of that.  He was a household name not because of advertising or a marketing campaign but because he put himself front and center in controversy.  

A few months before his passing, he graced me with an interview. I admit that I’m a bit of a legal nerd in the sense that I watch, read about and study trials.  I watch TV shows about trials, read novels about trials and enjoy watching other practice the art/science that I have dedicated much of my adult life and so when Bailey agreed to be interviewed on the Killer Cross Examination Podcast, I was, I imagine, like a kid about to meet Joe Dimaggio of Yankee fame back in the day.  

I could have talked with him for hours. He remembered facts from cases 40 years ago and beyond.  He honestly appraised the cross examination of Mark Fuhrman, acknowledging that he got lucky when "the tapes" appeared. He admitted that his cross was planned to be a setup to create a logical contradiction in the minds of the jurors and to juxtapose Fuhrman's denials with the testimony of other witnesses who the defense planned on calling. He could have easily claimed that his cross of Fuhrman (when compared to the recordings) was intentional but he was too much of an artist to do so. When I mentioned his superb cross of Sgt. David Rossi, a textbook cross examination, he responded, "a true lawyer would know that" or something to that effect.  

Near the end of my time with Bailey he eerily commented on his legacy and foreshadowed his passing.  He paid me a high honor, "I can't tell describe a trial lawyer but I know one when I see one" and pointed at me. I can say the same, Lee - I don't know how to describe a trial lawyer but F. Lee Bailey, "you were surely that - a badass trial lawyer." 

Rather than post a new podcast this week, we repost my interview with Bailey in his memory.

So long my friend.

Dick Deguerin is a legendary Texas criminal defense lawyer yet I’ve watched some of the Robert Durst Trial in which Deguerin represents the millionaire heir with some puzzlement and bewilderment. In this segment, I focus on a particularly difficult witness and the beginning of Deguerin’s cross examination as examples of, in my opinion, “what not to do.”

Too many notes, disorganized materials at the podium, non leading questions and gilding the Lily (something I’ve discussed previously on the podcast) get Deguerin behind the witness in this battle.  I’ve always maintained and still do to this moment that every exchange with a witness in cross examination is a battle, a sale or a tug of war and as the examiner, you cannot afford to lose that battle or sale.  If the witness is controlling the examiner, the examiner and his client suffer. One way to control the witness is to use leading questions.

A leading question is a type of question that prompts a respondent towards providing an already-determined answer. This type of question is suggestive as it is framed in such a way that it implies or points to its answer(s). Ask any of the great cross examiners, cross examination teachers and authors on cross examination, eg, Roger Dodd, and they’ll tell you to use leading questions on cross examination. Read any of the leading texts or books and you’ll read the same.

In this segment, I examine a clip from the Durst trial. It’s not pretty.  Take a look.

Robert Durst is on trial for the murder of his friend, Susan Berman.  Durst was also accused of murdering and dismembering Morris Black in Texas.  And Robert Durst is suspected to be the cause of his wife, Kathy Durst’s disappearance, in the 70’s.  Three people close to him - wife, best friend and roommate — dead or missing.  If the case sounds familiar to you that is because it should.  Robert Durst is multimillionaire heir to a real estate empire in New York City whose life has been covered repeatedly in the news and in pop art: the disappearance of his wife, Kathy Durst, was the subject of the movie, All Good Things starring Ryan Gosling.  The Morris Black case in which Durst admitted to killing and dismembering Black was the subject to tv shows not only due to Durst’s notoriety but that Durst was allegedly hiding out in Texas living in near squalor despite being a millionaire.  And, he admitted to dismembering Black and sinking his body into the Galveston Bay and yet despite all of that evidence, he was acquitted of the murder.  If it sounds unfamiliar, it is likely you’re not a fan of Law and Order because 3 episodes were devoted to Durst and if none of this rings a bell, perhaps this will - Durst voluntarily participated in a documentary called “The Jinx” in which he was confronted with evidence of his complicity in the disappearance of his wife and his friend Susan Berman and while wearing a microphone, walked into a bathroom and said, “I killed all, of course.”

This murder case is what is called a “cold case murder” and if that wasn’t enough to draw our attention to it, the interaction between the star cast of lawyers is … it is fascinating.  The trial features Dick Deguerin, a Texas legend, who engineered Durst’s acquittal in the Morris Black case, David Chesnoff, a Nevada lawyer who is considered among the most respected in the nation and a cold case special prosecutor, John Lewin.  In this episode, using real clips from the trial, I reveal how the prosecutor is engaging in what are called speaking objections, how they impact the courtroom and, in my opinion,, promote unfairness to the defense and defense lawyers.  Lewin argues objections that he was won, argues after the judge makes preliminary rulings and makes these offers of proof that have the capacity or potential to telegraph or suggest to witnesses and jurors what the evidence will or should be.  The dynamic between the old school Texas Southern gentleman lawyers and the feisty cold case prosecutor is something to watch and something that the judge has yet to get under control.   Watch how it plays it out with my commentary and tell me what you think.

In 2017, I obtained acquittals for Charles Warren in the a motor vehicle homicide case in which he was accused of causing the death of a Michigan State Trooper.  From the incident, through the investigation and from gavel to gavel, the case was intensely covered by the media.  The trial was live-streamed, covered by social media sites, televised and discussed in the news.  The deceased was a state trooper and the investigating agency was the Michigan State Police.  We saw an opening to establish that the investigation was biased.  In this episode of Killer Cross Examination, I break down how I constructed and executed a cross examination of the state’s investigator and expert witness and put the bias questions to him.  In this episode, I use the actual cross examination of the expert and walk you through it, offering commentary along the way.

Bias.  Establishing that a witness is biased is one of the cross examiners chief objectives but it is not easy.  Few witnesses will agree that “I am biased.”  Few will readily answer affirmatively when the question is to put to them - “Are you biased?”.

If you asked the question directly, the witness would deny it and deny it passionately.  So, the cross examiner must attempt to establish that the witness is biased through a series of small steps, i.e., questions, that force the witness to have to admit to certain facts which when taken together show or reveal a bias or the appearance of a bias.  Done correctly, it can be a devastating trap for a witness that will require the witness to

Imagine a hallway with many doors and that you are walking the witness down the hallway.  As you walk down the hallway, the witness closes each door on his own only to find himself at the end of the hallway, with only one door left.  He is forced to either go through the door or attempt to not go through it but that is exactly where you want him to be - forced to enter it or forced to refuse to do so.  It is this Hobson’s Choice that dooms the witness.  To put it back into cross examination terms, you want the witness to be forced to have to choose between admitting the obvious or denying the obvious.  The former forces the witness the admit his own bias, the latter, forces the witness to deny the obvious.

Connecticut Magazine called Norm Pattis, the Connecticut civil rights and criminal defense lawyer, the Defender of the Despised. It is a mantle he wears proudly.  If you read about a criminal case in Connecticut, there is a good chance that Pattis represents the client, passed on the case or is in talks to take it over.  His clients include Alex Jones, the controversial conservative firebrand and host of Infowars.  Pattis is my guest on this week's episode of Killer Cross Examination.  

If you want to hear how one of America’s best and most visible trial lawyers does her business, you want to listen to this episode. Do not miss this episode.

This week, I go one on one with a former Court TV host and high profile civil rights lawyer, Lisa Bloom.  While Lisa is the daughter of one of America’s most successful and committed civil rights lawyers, Gloria Allred, Lisa has made her own mark in her career and is no stranger to the spotlight.  She has represented individuals and plaintiffs against comedian Bill Cosby,  Fox Host Bill O’Reilly, Rep John Conyers, former President Donald Trump, Guess CEO Paul Marciano, Hollywood Producer Akil David, the Los Angeles Police Department and countless other power moguls and figures.  Lisa actually hosted several shows on Court TV including one that she co-hosted with Vinnie Politano, who still hosts a show on Court TV to this day.  She can be frequently seen providing legal commentary offering her insight on legal issues and high profile cases including the Chauvin-George Floyd trial.  Lisa is one of America’s foremost civil rights lawyers and has successfully advocated for sexual assault victims, victims of police misconduct, harassment and discrimination victims.  Her victories include, obtaining an 11 million dollar verdict against Hollywood producer Akil David and obtained a confidential “epic” settlement for former supermodel Janice Dickinson against Cosby.

This is not an ordinary interview of Lisa.  This is probing.  She talks about growing up in her mother’s (Gloria Allred) shadow, striking out on her own and building her own name, her experiences as a female trial attorney, the double standards she experienced and experiences as an aggressive female trial lawyer, fighting the powers to be, how she conducts voir dire, she uses the “Me Too Movement” to identify favorable and unfavorable jurors, how her opponents attempt to prejudice the jury against her using her celebrity status and high profile cases, battling Bill Cosby, fighting Bill O’Reilly, going after Rep John Conyers, representing the downtrodden and minimum wage earner against the powerful, her preparation, her style of questioning, when to make it about the witness (direct examination) and when to make it about the questioner (cross examination), when to speed things up, when to slow things down, when to raise her voice and when not to, etc.  She shares the one person she wants to cross examine the most and why.

On this episode of Killer Cross Examination, I go one on one with Michigan’s Attorney General Dana Nessel.  Many don’t know that Dana began her career in the Wayne County Prosecutor’s Office and quickly developed a reputation as a firebrand courtroom prosecutor.  In this episode, she shares her style in the courtroom, how she used her humor and sarcasm, how she prepared for court and how she found her voice.  She shares meaningful cross examination stores about being so eager to begin question an adverse witness that she was jumping out of the chair and how on two (2) occasions, she put or found herself in physical danger in murder trials inside the courtroom.  I also ask her point blank about the double standard that she experienced as an aggressive female trial lawyer and how she is using her experiences as a criminal defense lawyer in her current role as Michigan’s chief law enforcement officer.  This is not your normal interview of a politician.  This is an episode that you will not want to miss.