If any COMMENTARY is flawed by factual error,
faulty reasoning, lack of fairness, or double
standard, please send an email re same.
Please call NOW if you know of an available
recording of a high-quality cross-examination
in a "sexy" case ... a reward is offered.
------------
COMMENTARY #14: July 31, 2011
Casey Kills Caley. Jury Quickly Acquits.
Prosecutor Shrugs, "So Be It."
"So Be It" ... Really?
While much of America paid at least semi-close attention to the televised murder trial of Casey Anthony, I was focused on other "stuff" ... otherwise, I would have watched as much as possible, hoping to grab some fresh teaching examples re cross-examination.
The small snatches of (accurate?) information and opinion that came my way as the trial progressed (mostly from my 85-year old, cutie-pie Mom, who watched nearly every day ... and some from the inimitably repulsive Nancy "Tot Mom" Grace) caused me to assume – as a former cop and DA, not much convincing was required – that Anthony was in fact guilty of some death-causing crime, and would be legally found guilty of same, though I didn't know all the jury's verdict options.
The only parts of the trial that I watched live were three: (1) the entire rebuttal argument by prosecutor Jeff Ashton; (2) the first 10 minutes of the rebuttal argument by prosecutor Linda Drane Burdick; and (3) the July 5th verdict. So, there is a mountain of trial information (evidence, rulings, and personalities) about which I have no clue whatsoever.
Okay, America, with that major admission now out front (and the formerly distracting other "stuff" behind me), I belatedly opine on the two slivers of trial advocacy I watched live: the prosecutors' respective rebuttals, which were delivered on July 4th.
My first impression of each was not an admiring one. As a trial advocacy teacher (since 1982), I immediately disliked some style-aspects of each presentation, but I pushed those criticisms aside so I could concentrate on the case facts about which I knew so very little. I was especially interested in Ashton's summary of the various expert witness battles. I had obviously missed some fascinating and spirited scientific testimony/examinations. Damn!
Around 10 a.m. (Pacific time) on July 5th, every – so it seemed – television station proclaimed that a verdict had been reached and it would be announced in court in about an hour. Yes, I immediately phoned cutie-pie Mom to be sure she knew and could watch the live reading of the justice-gratifying, guilty-of-some-serious-crime verdict, which I and TV-land assumed had been reached ... because it was impossible that twelve jurors would walk Anthony: no, not with the 31-day lie; no, not with her taking the 5th Amendment; no, not with a mere 10 hours of deliberation. Right? But Madam Clerk of the Court read one after another "not guilty" verdicts on the important counts. Stunning!
The public unanimously reacted with wailing and outrage ... there were no misguided college students collectively leaping out of their chairs in irrational, triumphant jubilation over this killer getting away with murder. The verdict made the day into an instant downer for much of America; it certainly did for me. I felt great empathy for the prosecutors. Though I had never tried a murder case, I knew the soul-crushing feeling of losing a trial you had poured your guts into – which for a real trial attorney is EVERY trial, whether civil or criminal. I knew that the prosecutors' emotional devastation would last days... as mine had.
As for the legion of television talking-heads, they went into analysis mode. Because so much of it was drivel and speculation, and because I still had that nagging "stuff" to finish, I decided to completely "walk away" from the case, made a solemn vow to watch no more Anthony-related TV ... I didn't want to get hooked and start watching YouTube clips of expert testimony from the trial.
Solemn vow broken the very next day, July 6th. I learned that gotta-be-emotionally-devastated Ashton was going to be on "The View" with Whoopie, Barbara, and the others that morning ... less than 24 hours after the verdict! Seemed to me an odd venue and maybe odd timing. Would he allow himself to express some measure of respectful contempt (that's not an oxymoron) for the jury's horrific blunder? Would he express any self-criticism? I had to watch ... and would then resume my vow of no more Anthony-related TV.
As stunned (and as wrong!) as I was in assuming what the jury's verdict would be, I was nearly as stunned (and as wrong!) in assuming what Ashton's one-day-after reaction to that verdict would be. (Video: http://www.youtube.com/watch?v=m2KAA6-GeXA.)
Here are some excerpts, along with my bracketed comments :
Barbara: "The entire country still is reeling from what is the most shocking verdict perhaps since the O.J. Simpson trial." [Videotape of the Anthony "not guilty" verdicts was then played.]
Ashton: "We were pretty shocked, but that's the way it goes."
[Comment: "That's the way it goes?" Really? You work three media-intense years on your career-ending case where a two-year old girl is murdered by her party-time mom who (case facts and more case facts), and the jury spends a mere 10 hours "weighing" the thick-with-experts evidence, and they walk the mom, and you philosophically sum it up with "That's the way it goes"? Really?]
Joy: "When people say you didn't really prove the case, how does that make you feel?"
[Comment: Please say it makes you feel angry because they're wrong, or feel like shit because they're right.]
Ashton: "It doesn't make me feel that bad."
[Comment: Not "that bad." Really? What level of bad does it make you feel?]
Ashton: "We [Burdick's rebuttal is discussed below.] felt like we argued it as well as anybody could."
[Comment: I had law students in my trial practice course who did markedly better at arguing in their mock jury trials than you did in your non-mock jury trial. Many law students.]
Ashton: " I think it all came down to the evidence."
[Comment: Wrong ... it comes down to how well the evidence is argued. Trial is argument!]
Ashton: "What I said all along is, you know, if a jury looks at that photograph [Caley's skull wrapped in duct tape] and doesn't see it the way I do and doesn't know how she died, well then so be it."
[Comment: Really? A jury walking a baby-killing mother – causing the entire country to gnash its collective teeth – is a "so be it" ... a "that's the way it goes" event?]
------
But to be fair to Ashton, who appeared to be having quite an enjoyable time with the quite sympathetic ladies of "The View," maybe he was speaking off-the-cuff and if given another opportunity in a less chatty setting would not offer such feeble characterizations.
But, he did have a second opportunity, with Matt Lauer of "Today." Ashton told Lauer: "Our thought on it [the case] had always been that if anybody [jurors] could look at the [duct tape] photographs of how Caley was found and not conclude how she [criminally] died from that, then so be it." Really? That's weird!
(Video: http://www.youtube.com/watch?v=s2mdhFHvMtQ.)
I decided to watch all of Ashton's post-verdict interviews that were on YouTube. Would he demonstrate any despond, any defiance ... express any self-criticism re the prosecution's trial decisions? There were several interviews:
with Gretchen Carlson of "Fox News"
(Video: http://www.youtube.com/watch?v=aFgvRu-W_78&feature=related)
with Dr. Drew Pinsky of "CNN/HLN"
(Video: http://www.youtube.com/watch?v=NU_cMb6j8SU)
with Joy Behar of "CNN/HLN"
(Video: http://www.youtube.com/watch?v=UjjqRIDtW2w)
with Beth Karas of "in Session"
(Video: http://www.youtube.com/watch?v=jvjRnCm_ACk)
with Jane Velez-Mitchell of "CNN/HLN"
(Video: http://www.youtube.com/watch?v=ARPZbY7xukE)
with Piers Morgan of "CNN"
(Video: http://www.youtube.com/watch?v=jkidFe8YRcA&feature=related)
Ashton told Morgan: "If they [jury] did not see in the photograph of how Caley was found what we saw ([sic], and what other people see, well, that's fine, you know, we shall agree to disagree." Another "so be it/that's the way it goes".
If there was despond, defiance, or self-criticism in any of them, I failed to see it. Something was indeed weird here, and my mind returned to the unfavorable first impression I formed of Ashton's rebuttal argument when I watched it live. I needed to watch it again. I did. The rebuttal never urged the jury to return a "guilty" murder verdict. The rebuttal never argued that a moral good would be achieved and a moral wrong prevented by the jury returning a "guilty" murder verdict. The rebuttal expressly accepted that the jury might properly return a "not-guilty" verdict. This is weird ... this is terrible advocacy!
Some excerpts follow. Focus on Ashton's words that I have placed in bold. My comments are in brackets. (Video: http://www.youtube.com/watch?v=0GSQK0XO08Upart #1 ... videos of parts #2 & #3 are also available on the same YouTube webpage.)
"Good morning and happy Fourth of July!
[Comment: I thought his voice a bit too cheery given the jury's task. But many others may think otherwise. Small potatoes.]
"Ms. Drane Burdick and I are going to both speak to you at this rebuttal portion of our argument, we’re going to discuss different topics. I want to begin by discussing the science in the case. Defense counsel issued very appropriate and aggressive attack upon the science, but I want to take a more measured and complex approach. "
[Comment: So the many attacks that defense attorney Jose Baez launched against the prosecution's experts should be given serious consideration by the jury? Really? Ashton's the prosecutor in this case, right?]
"Science can’t be understood by simplistic concepts or easy phrases. The best way to understand the science in this case is to look at it and first look at what the scientists agree on. And then, what they don’t agree on. And basically, the way it works is, it’s up to you to decide with an expert, as with any other witness, what part of his testimony you believe or don’t believe. And in a dispute between experts, it’s up to you to decide which one you believe and you may reject both. You may believe, you may find one more credible than the other because of the experience or because of just that what they said makes sense. So it is totally up to you to decide what you believe from what the experts have told you."
[Comment: So if the jury chooses to disregard the prosecution's experts, that's acceptable to Ashton? Really?]
------ (jump ahead)
"So, they [prosecution experts] have told you that, in their opinion, which again you may accept or you may reject, that that tape had to have been on that skull before she decomposed [proving Caley had been murdered].
[Comment: Ashton is giving his permission to the jury to reject – according to his comments on "The View," to Lauer, and to Morgan – the prosecution's central forensic argument – prosecution's case theory. Amazing! Weird! Terrible advocacy!]
"Dr. Spitz [a major defense expert] presented you with an alternative. And I discussed that alternative with him at length. His alternative was that someone had come along at some later point for some unknown reason, and reached down, and picked up the skull off the ground, then picked up the mandible, took them someplace, put them back together, and duct-taped them to hold them in place. And then returned them to the scene. You heard the cross-examination of Dr. Spitz about that scenario. And it is up to you to judge whether that scenario is reasonable or makes any sense at all. When I pointed out to Dr. Spitz, that his scenario of the skull being returned was inconsistent with the ... first of all the deterioration of the duct tape, and second of all, most importantly, remember I asked him about. Well, the person would not just have the skull back they would have had to have draped pieces of hair over the skull. And remember what his response to that was. His response to that was to accuse the medical examiner personnel of doing it. And then when I showed him the photograph of the skull at the scene, undisturbed with the hair in exactly the same place, he accused the sheriff's personnel of doing that. It is up to you to decide which of those two expert opinions you find more credible. And I submit to you based on evidence that you heard that Dr. Spitz's version of events is incredible and non-credible."
[Comment: More permission to reject the prosecution's evidence.]
------ (jump ahead)
"And I would submit to you that based upon what you have heard in this case that Dr. Spitz’s claim that that autopsy was done improperly is not credible."
[Comment: Ashton used this weak, weak, weak "I submit to you" phrase 10 times in the rebuttal.]
------ (jump ahead)
"Our position is that the facts in this case show beyond a reasonable doubt that this was premeditated murder of a young child. But we know [he emphasized "know"] that you can reconstruct these events in any way you want."
[Comment: He is accepting that the evidence supports many interpretations. He is, in effect, saying that reasonable doubt exists!!!]
------(jump ahead)
"I just want to end by thanking you for all your sacrifices, all of your time and to wish you well in the decision that you are going to make. Thank you."
[Comment: He wishes them well ... re whatever decision they make. Really? He again signals that the jury could rationally weigh the evidence and return a "not guilty" verdict. This is In-cred-i-ble! It reminds me of another prosecutor making a WEIRD final argument to a jury in a murder trial: September 27, 1995, Prosecutor Christopher Darden in the O.J. Simpson case:
"I have lived up to the oath, my oath as a member of the District Attorney's office. And I presented, we hope we presented the best evidence we could. And if we didn't present the best evidence we could, don't hold that against us. I just want you to--you know, when the time comes to go into the jury room, I just want you to--somebody, somebody just say let's calm down, let's elect a Foreperson, let's read the law, let's take a minute and let's just look at the evidence. I would just like you to use your common sense when you do. When you do that, when you use your common sense, when you try to be objective, when you remove all of the emotion out of this case, when you remove all of the sympathy and passion and when you just look at the facts, the evidence as best you can, you will come up with the right decision. The world is watching and everybody wants to know what you are going to do. Marcia Clark and I know you are going to do the right thing under the law. And whatever you do, the decision is yours, and I'm glad that it is not mine."
Really? In-cred-i-ble! What is a jury to make of the prosecutor saying that he would not want the civic and moral responsibility of rendering a verdict in this case? You can figure it out.]
*************************************
As mentioned above, Ashton said on "The View": "We felt like we argued it [the case] as well as anybody could." He means, of course, himself and Burdick.
Turning to Burdick's rebuttal, the entire first 10 minutes is set forth below, along with my bracketed comments. (See video: http://www.youtube.com/watch?v=wHk9qxAg0ic)
"Good Morning, Ladies and Gentlemen.
"When Judge Perry took that break for 15 or 20 minutes, I kinda felt like that guy that gets called out onto the field to kick a last minute field goal once his teammate [Ashton] has taken the ball down to the 1 yard line, and, of course, I'm ready to go, and the other team calls a timeout.
[Comment: This metaphor doesn't work. A weak beginning.]
"So ...
[Comment: "So" nothing. What follows doesn't flow as a consequence of the "timeout."]
... there are some advantages and disadvantages I suppose to being the last person to have a say on this subject. The advantage of course is the obvious one that nobody gets to say anything after I sit down, except for the judge on the law. The disadvantage, of course, is that you've been sitting here listening to attorneys tell you what they think the evidence shows for 5, 6 maybe even 7 hours to this point, and I recognize that you all are ready to begin the job that you've been here doing for almost 2 months.
[Comment: Get to something that matters!]
"On May 9th, we packed our bags and spent two weeks in Clearwater; you have made a greater sacrifice in packing your bags and spending weeks here, and as everyone else before me has indicated, I thank you, as well. But I ask that you do indulge me for a few moments ...
[Comment: Moments? These throat-clearing paragraphs alone take 10 minutes.]
... to get our final thoughts on the issues that have been presented in this case. I promise that I won't be dragging out evidence or posters or pyrotechnics, if anything that’s not my style.
[Comment: "I," "I," and "my style" ... it ain't about you.]
"When I came up here in May, and stood in front of you for probably a little over 2 hours, and told you what the evidence in this case would show, I meant what I said. I didn’t make promises to you that the State didn't keep. I meant what I said.
[Comment: "I," "I," "I," "I," "I," and "I" ... it ain't about you.]
"And through the testimony of dozens of witness, hundreds of exhibits, the State of Florida in this case has proven every element of every charge in this indictment against Casey Marie Anthony.
[Comment: Get to something that matters!]
"Mr. Baez, defense counsel, started his closing argument explaining what his biggest fear was in this case, and that it was that you would be making decisions based on emotion. I would never ask you to do that. Co-counsel [Ashton] has not asked you to do that. The judge will instruct you that you cannot do that. And, although this case is certainly emotionally charged, we won't ask you to make decisions about the facts of this case based on anything but the testimony that you have heard from the witnesses, and all of the exhibits that you would be able to consider once you begin the job of deliberating this case.
[Comment: More blather.]
"Want to know what my biggest fear is?
[Comment: No!]
"My biggest fear – and I do not under any circumstances mean this as an insult.
[Comment: I bet she says something that risks insulting them.]
"My biggest fear is ...
[ ... that some of you are so stupid ... ]
... that common sense will be lost in all of the rhetoric of the case: that you won’t step back and take a look at the evidence as a whole. You gotta look at the big picture here. Co-counsel [sic ... she means Baez, not Ashton] in his opening argument to you yesterday talked about rabbit holes and after he sat down ... [Objection, sustained.]
"My fear is that you ...
[... dummies, but I do not intend an insult ...]
... won't look at the big picture. We spent 2 weeks in Clearwater, questioning all of you... Looking for people who would still be able to see the forest through [she means for, not through] the trees. [Objection, overruled.]
[Comment: Get to something that matters!]
"In his closing remarks, Mr. Baez used words like liar, perjurer, fraudulent. A trial in a criminal case is supposed to be a search for the truth
[Comment: As opposed to a civil case?]
"The truth is what is the cornerstone of the criminal justice process, both for those who are accused and for those who are victims of crimes. It is lying that perverts that process. So, during an argument where the most well documented liar ever seen in a courtroom accuses everybody of perjury, of fraud, of lying, the irony is rich indeed. [Objection, overruled.] As we have come to find out, accusing others of lying is classic Casey.
[Comment: Wrong name choice. Should be "defendant" or "Ms. Anthony". Not "Casey."]
"When Casey Anthony wants to divert attention away from herself, she accuses others. [Objection, overruled.] As we have heard from the evidence, Ms. Anthony has spent years lying. Has spent 31 days, Mr. Baez in his argument to you suggested that those 31 days mean nothing.
[Comment: Finally mentions a fact in the case, but poorly done.]
"A lie told convincingly is still a lie.
[Comment: Heh?]
"The defendant through counsel ...
[Comment: Say "Mr. Baez" for clarity.]
... has accused Yuri Melich, [Objection, overruled.] Jason Forgey, Geraldo Bloise, Dr. Vass, many, many of the witnesses that have come forward in this case of being liars. In his statement, he indicated ...
[Comment: "Indicated" is a weak verb. "Charged," "accused," "defamed," or "dishonored" are better.]
... that the Orange County Sheriff's Office is desperate, or was desperate in this case, and if there was anything that the individuals of [sic] working for the Orange County Sheriff's Office were it was desperate to find a little girl. In July of 2008, whether or not she was alive or dead, the men women of Orange County Sheriff’s Office labored for hours in an effort to find her.
[Comment: Not "her," use "Caley."]
Bottom line: If there was something to praise in Burdick's first 10 minutes, I failed to see it.
COMMENTARY #13: July 20, 2011
MP Watson vs. Mogul Rupert Murdoch:
A Cross-Examination Neither Horrible Nor Holmesian
Yesterday, Member of Parliament Tom Watson (Labour for West Bromwich East) questioned Rupert and James Murdoch about the phone-hacking scandal that occurred at The News of the World, a British tabloid. (Google “james-rupert-murdoch-full-transcript” for the full transcript of the hearing.)
Like Sherlock's Dr. Watson, MP Watson is not without talent; he does have useful ideas. But, like Dr. Watson, not enough talent (here Q&A talent) to solve the case.
My comments are in bold below.
Q196 Mr. Watson: [addressing James] There are other questions I could ask on this, but there are other colleagues who have specific questions for you, Mr. Murdoch, about this issue, so I will move back to your father if I can. Mr. [Rupert] Murdoch, at what point did you find out that criminality was endemic at News of the World?
Comment: “Criminality” and “endemic” are great rhetoric choices to help intensify the evil and magnitude of the problem that – Watson wants to argue – Rupert did nothing about until just recently ... when the firestorm of horrific publicity forced him to finally act.
Rupert Murdoch: Endemic is a very hard, wide-ranging word [correct!]. I also have to be extremely careful not to prejudice the course of justice, which is taking place now. It [criminality?] has been disclosed. I became aware as it [criminality?] became apparent. I was absolutely shocked and appalled and ashamed when I heard about the Milly Dowler case, only two weeks ago, eight days before I was graciously received by the Dowlers. [The name of the family of the murdered teenage girl whose phone mail was hacked by The News of the World.]
Comment: In a challenge-question, Watson should have set forth the facts that best support "endemic" ... something like, “Given that Glenn Mulcaire - a private investigator for The News of the World was convicted for phone-hacking – had 5,000* landline phone numbers and 4,000* mobile phone numbers in his records, wouldn’t you agree that endemic is indeed an accurate characterization?” [*See Wikipedia re “News of the World phone hacking affair”.]
If Rupert disagrees with "endemic," Watson should continue to put pressure on him by proposing “rampant,” “wide-spread,” and/or “out-of-control” ... or ask him to identify the word or phrase that most accurately fits the situation ... daring him to select language that implausibly understates the situation.
Q197 Mr. Watson: Did you read our last report into the matter, where we referred to the collective amnesia [the orchestrated lies?] of your [top] executives who gave evidence to our Committee?
Rupert Murdoch: I haven't [ever?] heard that. I don't know who made that particular charge. [As distinct from some other charge?]
Q198 Mr. Watson: A parliamentary inquiry found your [most] senior executives in the UK guilty of collective amnesia [lies?] and nobody [ever] brought it [such a grave matter] to your attention. I do not see why you do not think that that is very serious. [It appeared that Murdoch was somewhat confused by the question – not the first time in the hearing – and he smiled out of sheepishness, which smile Watson incorrectly read as being one of amusement.]
Rupert Murdoch: But you're not really saying [meaning] amnesia, you're really saying lying. [Yes!!]
Comment: This IS amusing. Murdoch, who dodged the problem word “endemic,” now substitutes "lying" for the Parliamentary euphemism "collective amnesia," which is far stronger for Watson's argument.
Here was a pitch down the middle of the (ahem) cricket plate, but batsman Watson whiffed. He should have responded something like, "Indeed, Mr. Murdoch, Her Majesty's ministers, after a thorough investigation into the operation of your newspaper concluded that your top executives engaged in orchestrated lying during the course of a major inquiry – the government then published a much-discussed report that politely called that lying "collective amnesia," the true meaning of which you instantly recognized – and you have never heard anything about the government's report or your employees' lying until this very moment? That's your [bullshit] story?"
Instead, Mr. Watson asked ...
Q200 Mr. Watson: While it has been obvious to most observers from the summer of 2009 that phone-hacking was widespread [this replaces “endemic” ... fine], you knew for sure in January of this year that the "one rogue reporter" line was false. Is that right?
Rupert Murdoch: I forget the date [when I knew for sure].
Comment: Watson wants (should want) to establish that Rupert knew "for sure" about the wrongdoing early on; then he can hammer him for failing to discipline people/change procedures from that time until two weeks ago ... before the shit hit the fan. The longer the time between acquiring knowledge and remedial action, the bigger the problem for Rupert. Therefore, Watson should not concede 2009 and 2010 ... if it was "obvious to most observers," then he should have challenged Rupert with the information that made it obvious.
And, while Rupert may be able to push the "for sure" date to a relatively recent time, establishing when he got his the first HINT of wrongdoing, also gives Watson a line of attack ... re what inquiry-steps were (not) taken from that moment until whenever ... especially given Rupert's awesome duties to readers, shareholders and THE TRUTH.
Q201 Mr. Watson: Why was Edmondson the only person to leave News of the World last January?
Comment: Alas and sigh! The “when did you first learn” ("for sure" or "get a hint") line of examination gets dropped. MP Watson could have used some help from Sherlock right here. His nice beginning gets diffused.
Rupert Murdoch: We have given all our files and all our knowledge and everything to the police. They have not given us the Mulcaire diaries, so we do not know what was in that [in what?], but there was a page that appeared to be addressed to him. Again, that is my son's—
James Murdoch: Perhaps it would be helpful to the Committee [and especially helpful to my floundering-around, 80-year old father] —if you would like to go through any of the particular detail around why decisions were made by the management team at News International and the precise chronology—if I could answer those questions. As the chief executive of the regional businesses across Europe, I have somewhat more proximity to it. [But, as we have practiced for hours in preparation for this hearing, I’m going to tell you that I only know what I read IN the newspapers, not what actually happens AT those newspapers I run. That red-haired lady, whatever her name is, was really in charge over there at the newspaper thingy. I'm in charge of the confidential settlements to lawsuits.]
Mr. Watson: I understand the detailed points, Mr. [James] Murdoch—
James Murdoch: I am simply offering to help to clarify these matters, Mr. Watson.
Q202 Mr. Watson: But your father is responsible for corporate governance, and serious wrongdoing has been brought about in the company. It is revealing in itself what he does not know [or claims he does not know], and what executives chose not to tell him [or claim they chose not to tell him]. With respect to you, I will pursue my line of questioning and come back to you later. Mr. [Rupert] Murdoch, why was no one fired in April, when News International finally admitted that News of the World had been engaged in criminal interception of voicemails?
Comment: Nice thought, but he takes it nowhere.
Rupert Murdoch: It was not our job to get in the course of justice. It was up to the police to bring the charges and to carry out their investigation, which we were 100% co-operating with.
Comment: “But it is your solemn duty to your readers and your fiduciary duty to your corporate shareholders and your sacred duty to THE TRUTH that ... , right?”
Rule: Lead when you know the answer you prefer ... the answer that gives you an argument or deprives the other side of an argument.
Q203 Mr. Watson: But in April [of this year] the company [you have famously controlled with an iron fist] admitted liability for phone-hacking, and nobody took responsibility for it then. No one was fired. [No one was suspended. No one was disciplined in any way.] The company admitted that they had been involved in [endemic or wide-spread or rampant or out-of-control] criminal wrongdoing [for years] and no one was fired. Why was that [evil-doing unpunished by you until just days ago]?
Rupert Murdoch: There were people in the company who apparently were guilty. We have to find them and we have to deal with them appropriately.
Final comment: What Rupert knew and when Rupert knew it and what Rupert did/didn’t do about it as soon as Rupert learned about it were not adequately established. Alas, some of the prankster’s “cream pie” deserved to have been airborned in MP Watson’s direction.
COMMENTARY #12: July 6, 2011
2 Dumb Statements in The New York Times re the
Dominique Strauss-Kahn Rape Investigation
On July 2nd, The New York Times published an article entitled "Strauss-Kahn Case Adds to Doubts on Prosecutor" (written by Alan Feuer, John Eligon and William K. Rashbaum). The article set forth a number of criticisms of New York City District Attorney Cyrus Vance. In part, it said:
"Early on, Mr. Vance took the case away from the sex crimes unit and gave it to two other experienced assistant district attorneys. Some people in the office said that decision hurt the office’s handling of the case because those prosecutors were not as familiar with the types of problems that sex crimes prosecutors routinely face: a victim with a troubled background; a he-said, she-said story. [Emphasis added.] With an experienced sex crimes prosecutor, an official in the office said, 'some of these very things that have come up, or even some things that might have come up during deeper examination by people who were experienced in this, might have come up faster.'"
Re Dumb Statement #1, in bold above:
Both "some people in the office" and the "official" (presumably they are prosecutors, otherwise the NYT reporters had no business publishing their critical comments) imply that the issues of witness credibility relevant to sex crime cases are different in-kind from the issues of witness credibility in other criminal cases. Wrong! They are not even different in-kind from the issues of witness credibility in civil cases ... any civil case.
According to the NYC DA and cops:
Strauss-Kahn's accuser, the hotel maid who immigrated to the United States from Guinea, lied to immigration officials about the "rape" and" brutality" she suffered in Guinea ... so she could successfully obtain asylum here. She lied to the I.R.S. about having a tax-saving deduction, claiming her friend's child as a dependent. She lied to New York housing authorities about her income level so she could remain eligible for public housing assistance. She lied about her drug-selling boy friend and was suspiciously "unknowing" about her numerous (5?) cell phone accounts that were mysteriously paid for (about $100.00 per month) by some "unknown" person on her behalf ... for some "unknown" reason.
Would any/all of this "stuff" be admissible in a rape trial? Don't know.
What is probably admissible is her telephone – tape-recorded – conversation with her jailed-in-Arizona boyfriend wherein she states that Strauss-Kahn is rich and "there's money to be made." This is relevant to her having a motive to fabricate/exaggerate events to support a future civil lawsuit for damages.
What is certainly admissible – no research of New York State case law required – is her lie that she hid out in fear after the sexual event (indeed sexual activity of some kind occurred) on the 28th floor until after Strauss-Kahn took the elevator and her supervisor showed up. Truth: she cleaned another room, and then returned to cleaning Strauss-Kahn's room (#2806), before telling her supervisor of the event. She initially told the "hiding out" lie to the cops ... and repeated it to the grand jury. However, some fancy-technology-key-entry-recording system punctured the lie. Oops! Event-related perjury to a grand jury is a very big deal.
Now, what is so specialized about any of these credibility issues that only a career sex crimes prosecutor could ferret them out and only a career sex crimes prosecutor could evaluate their significance? Answer: nothing! What makes a career sex crimes prosecutor any better at the ferreting/evaluating them than any other type of prosecutor? Answer: nothing!
Initially the term "he-said, she-said" was principally used to refer to a (potential) case wherein a woman alleges that she was the victim of sexual misbehavior perpetrated by a man, which misbehavior occurred at a time and place with no third person around who could offer first-hand corroboration of the woman's allegation or first-hand corroboration of the man's denial of misbehavior. The term's use has expanded to include matters where the determinative question for the trier-of-fact is: "The only two percipient witnesses to the event tell contradictory stories. Which is telling the truth?" For instance, civil lawyers who try intersection car accident lawsuits where only the two drivers truly know who had the green light are trying a "he-said, she said" case. Google: "Roger Clemens" + "he-said, he-said" and you'll get 12,700 hits. Clemens says that Brian McNamee, his friend and trainer, did not inject him with performance enhancing drugs. McNamee says he did. (Jury selection re that perjury case is now in progress. Yes, Clemens committed perjury.)
There is no such thing as expertise in "he-said, she-said" cases. Thus, the criticism implied in the NYT article is unfair; moreover, it's dumb.
On July 3rd, The New York Times published another article entitled "How Now-Shaky Case Against Strauss-Kahn Once Seemed So Solid" (written by Al Baker). It also set forth criticism of the investigation, this time focusing on the police. In part, it said:
"Mr. Strauss-Kahn, 62, was handed off to New York detectives by officers from the Port Authority of New York and New Jersey, who had removed him from his flight to Paris. He was taken to the East 123rd Street offices of the Manhattan Special Victims Squad and kept there for hours before detectives asked him about the episode.
...
"Mr. Thompson, the accuser’s lawyer, said Friday that he had asked Mr. Vance to explain why the police waited so long to ask Mr. Strauss-Kahn if he had attacked the woman — characterizing that as a 'Policing 101' oversight. He said Mr. Vance gave no answer.
'One of the first things you do is you try to get them to make a statement,' Mr. Thompson said. 'They didn’t do that. Instead, for five hours he sat there and nobody had the guts to go up to him and ask if he had committed these acts.'
...
"A former Manhattan prosecutor defended the police, saying that no detective likes to ask a potential defendant to answer questions if the detective himself does not know what the answers are. [Emphasis added.] In this case, the detectives were still most likely gathering the housekeeper’s statements and other evidence in the hours immediately after Mr. Strauss-Kahn was taken into custody, and were probably formulating the best way to get at the truth."
Re Dumb Statement #2, in bold above:
The article suggests that Strauss-Kahn may have been willing to speak with police detectives if they had acted sooner to ask him questions ... before he lawyered-up. I am dubious, but certainly there would have been no harm in asking him for a statement. The worst that could have happened is that he would refuse ... which he ultimately did when they ultimately asked. Thus, the police indeed deserve some measure of criticism for not trying sooner.
But the article's "a former prosecutor" rejects that criticism by arguing that that "no detective" (presumably he meant no smart detective) would want to ask Strauss-Kahn questions without first knowing the answers to those very questions. This was dumb to say and dumb for the NYT to print as a worthy-of-consideration defense of the police. What competent detective wouldn't have loved for Strauss-Kahn to answer the following:
"Were you a guest at the Sofitel hotel in Manhattan last night?"
"What time did you leave your room?"
"What time did you leave the hotel?"
"Did you see the hotel maid on your floor at any time this morning?"
"Did you have any conversation with her?"
"Did you have any physical contact with her?"
"Any sexual contact with her ... or anyone else this morning?"
[With follow-up questions to all responses.]
So what if the police didn't know the for-sure answers to these questions? Get Strauss-Kahn to make as many claims as possible ... make him run the risk that one or more of his statements would be proved false. Get a time-line of events ... that's child's play for any detective.*
*Unless, of course, that detective is Phil Vannatter or Tom Lange in the O.J. Simpson murder case. (Yes, all roads lead back to O.J. ... now a resident of Nevada State Prison.) Vannatter and Lange claimed to have conducted 500 homicide investigations between them before their assignment to the Simpson case, yet they pathetically failed to produce a quality time-line of Simpson's (purported) whereabouts for the few hours before the double homicide occurred ... even though Simpson agreed to a 5th-Amendment-waived interview that the detectives decided to end ... after a mere 32 minutes of Q&A!!! Proof it was a pathetic effort? The prosecution decided not to introduce the interview into evidence at the trial.
COMMENTARY #11: April 1, 2011
Stunning Decision! The Supremes (9-0)
Grant Government's Fondest Wish:
Another Grand Jury Depo of Barry Bonds
COMMENTARY #10: March 31, 2011
One Woefully Lame Deposition:
U.S.D.O.J. vs. Barry Bonds (Part #4),
Neglected Lines of Deposition Cross-Examination
A lot had to be on the collective mind of team N&N as the deposition of Mr. Bonds commenced. And any criticism about the quality of the deposition must allow that it may have taken a turn (no later than page 36; I say much sooner) that team N&N had no reason to anticipate: a Mr. Bonds who was determined to lie his ass off about his years-long, knowing, and eager consumption of steroids and the chemical agents that were designed to mask his use of those steroids.
Cross-examiners know that stuff happens during deposition testimony, so they must be able to readily adjust goals and techniques when it does ... trial too, as apparently was the case with much of today's testimony by Dr. Ting and with at least some of Ms. Hoskins's testimony, which came as a big – unwelcome! – surprise to the prosecution. This evening and all this weekend, the prosecution may be thinking, with ample justification, that its shit – not stuff – that happens at trial. (See columns by Lester Munson sports.espn.go.com/espn/otl/columns/story?id=6278457 and by Juliet Macur nytimes.com/2011/04/01/sports/baseball/01bonds.html?_r=1&ref=sports.)
If the now every-minute tweets by superb tweeters, Mark Fainaru-Wada (markfwespn) and his buddy, George Dohrmann (georgedohrmann), are on the mark, then only scraps of live testimony remain before the prosecution rests ... scraps of live testimony, plus the "exciting" reading into the record of portions of one woefully lame deposition.
The below – in the typical over-the-top fashion in which all of the teaching points in my seminars are presented – are lines of deposition cross-examination that team N&N neglected altogether and left poorly developed. I argue that they should have ditched the document slog (see Part #3) that consumed 79 pages, producing next to nothing, and endeavored to develop these. (Yes, there is some overlap among the lines.)
Neglected Line of Deposition Cross-Examination #1:
Mr. Bonds's Bizarre Reliance on Greg Anderson and Bizarre Lack of Curiosity
Mr. Anderson, your long time friend, suggested that you give him periodic samples of your blood and urine for testing, and further suggested that you take two substances (one orally and the other rubbed into you skin) that he would supply to you, which substances he said would correct any zinc/magnesium imbalance in your body and/or relieve your significant arthritic pains and constant fatigue, right?
He told you that the substance you were to take orally was flax seed oil, right?
You had no idea whatsoever what flax seed oil was, right?
He didn't identify the substance that you were to rub into your skin, right?
He had no formal medical training whatsoever, right?
He didn't tell where he obtained the two substances, right?
You just assumed they came from BALCO, right?
He didn't offer you any proof that these substances were effective in correcting anybody's chemical imbalance and/or relieving arthritic pains and fatigue, right?
He didn't offer any proof that these substances were safe, right?
And, according to you, you didn't ask a "bunch of questions," right?
As a matter of fact, according to you, you didn't ask him a single question about the substances' identity, source, effectiveness, or safety, did you?
Even though you could easily have asked some questions at the time he first made his suggestions or at any time during your hundreds of weight training sessions you had with him over the years that followed, you never asked a single question, right?
Would have only taken you three minutes, maybe less, to have asked the basic questions, right?
And, on the two or three occasions that you were in the company of Victor Conte, head of BALCO, for whom you did an advertisement, you never asked him a single question about the effectiveness or safety of the substances you assumed that his company, BALCO, was supplying to Mr. Anderson to give to you, right?
And, if you had been somehow too busy to ask questions about your health and your safety, you could have asked someone else to make those inquiries on your behalf, right?
You could easily have asked Steve Hoskins, who performed many duties for you, to make inquiries on your behalf, right?
You could have asked the Giants' trainer his opinion about the effectiveness and/or safety of those substances at any time over a number of baseball seasons, right?
Given that the Giants' paid you $17,000,000 per year, their trainer was certainly motivated to make sure that you were always in the best health, the best home-run-hitting health, right?
You could have asked your own doctor, the renowned Dr. Ting, about those substances on the many occasions you saw him or communicated with him by phone, right?
Dr. Ting was always quite willing to provide you with his medical expertise, right?
Or you could have sent Mr. Anderson to see Dr. Ting about those substances, right?
Mr. Anderson was on-call to show up for 4 a.m. work-outs whenever you wanted and on-call to come to Arizona for week-end work-outs whenever you wanted during spring training, right?
So, it would have been no big deal – in fact quite easy – for Mr. Anderson to drive 20 minutes max to Dr. Ting's office and for him to bring along samples of the substances so that Dr. Ting could be sure that your health and safety were protected, right?
Moreover, isn't it true that people want their doctor to know all of the medications they are taking so that the doctor can make informed judgments about what medications might conflict with each other ... what medications might even be dangerous if taken together, right?
But, correct me if I'm wrong, according to you, you never informed Dr. Ting about those two substances, right?
You didn't really think Mr. Anderson would understand the chemistry of those substances when combined with any of your other medicine, right?
But you didn't make any effort whatsoever to inform Dr. Ting or the team trainer about the two substances Mr. Anderson kept bringing you year after year, did you?
You kept your consumption of those two substances secret from them for years, right?
And, according to you, you never did anything to try to inform yourself about the true identify of those substances, their source, their effectiveness, or their safety, right?
And the reason why you never asked your dear friend, Mr. Anderson, anything about those substances was because you were concerned that by so doing you would intrude upon his business. He didn't question you about your batting technique, and you didn't question him about the unknown-to-you substances you were putting into your body, right?
You wanted him to be happy, so you unquestioningly followed his plan regarding your long-term consumption of those two substances, right? [Isn't that your bullshit story?]
Neglected Line of Deposition Cross-Examination #2:
The Steroid Tumult in Baseball and Mr. Bonds's Need for Self-Protective Caution
You said that everybody – including the players – talked about steroids, right?
The media made a gigantic deal out the steroid controversy, right?
There was lots of speculation in the press and by public that some players were hitting way more home runs than they had ever before and the reason was that those players were cheating by using steroids, right?
But you say that you weren't a cheater, a juicer, and you wanted your fellow baseball players and the fans to know that all of your home runs were legitimate, right?
You have said that you didn't trust baseball management and didn't trust the media, right?
Being a person who has spoken his mind many times about baseball matters, you made some enemies in baseball and in the media, right?
That didn't bother you, but you did believe that there were some people in baseball and the media who would like nothing more than the opportunity would undermine the historic greatness of your baseball achievements, to taint them with a false scandal, right?
So, you were indeed cautious about doing whatever you could to protect your reputation as one of the greatest baseball players, if not the greatest baseball player, of all time, and, naturally, to protect your personal privacy as a citizen, right?
But, isn't it true that, by giving samples of your blood and urine to Mr. Anderson, you were taking a risk – made even greater by his giving those samples to BALCO, a lab you knew little about ... and who knew for sure where they might go after BALCO – that your baseball reputation and personal privacy could unfairly be harmed, even destroyed, if those samples were accidentally mishandled or intentionally tampered with, right?
You couldn't be sure that the samples wouldn't fall into the hands of negligent or dishonest people ... and that somehow a banned substance might fall into or be put into one of the samples of your precious bodily fluids, right? [Yes, echoes of General Ripper.]
But, after taking that risk into account, you decided that giving samples of your blood and urine [p.b.f.] to Mr. Anderson and to BALCO, was worth that risk to your reputation and your privacy, right?
And it was worth that risk because you stood to get something back that was very important, right?
Correct me if I got this wrong, according to you, the important thing you stood to gain from the samples being tested – at least in the beginning – was your learning whether you had a chemical imbalance regarding the zinc and/or magnesium levels in your $17,000.000 body, right? [Isn't that your bullshit story? ]
And, forgive me, Mr. Bonds, I didn't mean to leave out your great desire that Mr. Anderson be happy, happy, happy.
Neglected Line of Deposition Cross-Examination #3::
The Great Zinc and Magnesium Imbalances (continued)
Correct me if I am wrong, your testimony is that you never saw any paperwork that showed anything regarding any tests that were performed by anyone on any of the blood/urine samples, right?
Correcting the zinc and the magnesium imbalances was one of the two reasons you agreed to take the "flax seed oil," right? [The other being Mr. Anderson's happiness.]
Tell me all of the communications that you ever had with anyone that in any way dealt with those imbalances?
Are you saying that there was always some imbalance in one or both of them, that is your zinc and/or magnesium levels?
Or, did you continue to take the "flax seed oil" any time after the zinc/magnesium levels were corrected?
[He has to make a choice: (a) claim the levels were never corrected and then be forced to explain why he continued taking an ineffective substance, or (b) claim they were finally corrected and then be forced to explain why he continued taking the "flax seed oil" once the problem resolved.
Yes, he could say that he continued with the "flax seed oil" to maintain the proper balances as advised by "Doctor" Anderson ... but, come on, they never had any such conversation, thus he would have to extemporaneously concoct the "facts" around that lie ... always a risky proposition.]
Neglected Line of Deposition Cross-Examination #4:
The "Clear" Was "Crap" as a Pain Reliever
You said that obtaining relief from your arthritic pain and fatigue [and making Mr. Anderson happy ... which team N&N should have used as a refrain in multiple questions] was extremely important to you, right?
If you became pain free, you could hit more home runs to help you team win and to more quickly catch and pass Babe Ruth and Hank Aaron, so that you would become baseball's all time home run hitter, right?
But you said the pain medication, the lotion that Mr. Anderson gave you, didn't do anything, it was, your word, "crap," right?
And, out of politeness to the members of the Grand Jury, you were just about to say the lotion was 'shit," but you caught yourself, right? [Mr. Nedrow should have tried for that word.]
Yet, correct me if I am wrong, you never complained to Mr. Anderson or Mr. Conte, who you assumed – assumed because you never bother to ask – had supplied the "crap" ["shit" would have been even better] to Mr. Anderson, to the effect that your pain was in no way relieved, right?
Instead, not wanting to disturb Mr. Anderson's happiness, you kept taking the "crap" ["shit"] pain medication years more, right?
Line of Deposition Cross-examination #5:
Inconsistent Statements re Frequency of Flax Seed Oil Consumption
Regarding the frequency of your consumption of the "flax seed oil," the first time you were asked about that today (page 30), you said one time per homestand, right?
Yet, moments ago, (page 1420), in response to a member of the Grand Jury, you said "If we were home [meaning playing a set of consecutive games in San Francisco] for two weeks, maybe two or three times, maybe." You said that, right?
So which is the truthful answer, Mr. Bonds?
Alas, time for me to do other things. I leave the below as reminders ... should I ever be tempted to return to the subject ... or as hints, should you decide to read the deposition yourself.
Neglected Line of Deposition Cross-Examination #6:
Effects of Steroids Use Experienced by Mr. Bonds, Discussed with Others
Neglected Line of Deposition Cross-Examination #7:
Bizarre Lack of Curiosity re the Federal Search Warrants
Neglected Line of Deposition Cross-Examination #8:
Steroid Cheaters Need a Friendly Laboratory
Neglected Line of Deposition Cross-Examination #9:
"Beans" (page 100/101)
Neglected Line of Deposition Cross-Examination #10:
Mr. Bonds: "I don't want to know anything." (page 126)
COMMENTARY #9: March 30, 2011
One Woefully Lame Deposition:
U.S.D.O.J. vs. Barry Bonds (Part #3)
The purpose of the deposition was to obtain evidence that the government could use in its prosecution of Victor Conte and Greg Anderson for their involvement in BALCO's criminal steroid distribution and money laundering schemes. Get the dealers; use the users to get the dealers. Makes perfect sense. Thus, at the outset of the deposition, Mr. Bonds was not the questioners' target; thus the initial questioning by Assistant U.S. Attorneys Jeff Nedrow and Ross Nadel was information-gathering in nature and tone. (In my seminars, I call this mode of questioning "doing the 'Battleship' game" ... getting the witness's story: who, what, when, where, how.)
However, by at least page 36 – I hope by page 24 – team N&N, who I was rooting for (see disclosure of bias in Part #1), knew, unless they are the most credulous of people, that Mr. Bonds's repeated claims of complete ignorance regarding the true nature and purpose of the "flax seed oil" and the "pain cream" were lies ... lies under oath, thus perjury. Team N&N was witnessing a series of crimes, and – truly sorry to say– their inept deposition "abetted" those crimes. Oh, Mr. Bonds may yet be convicted later this month, but, there can be no doubt, Mr. Bonds's defense attorneys must have been thrilled to see what little damage was done to their client in those hours in front of the Grand Jury. That deposition should have been the prosecution's strongest piece of evidence with which to attack Mr. Bonds's credibility ... it ain't. (Note: To make your own judgment about the quality of that deposition, Google "smoking gun + Bonds + transcript" for a transcript.)
[In the "kicking a dead horse" department: Had Los Angeles Police Department homicide detectives Phil Vannatter and Tom Lange – 500 homicide investigations between them – on June 13, 1994, the day after the murders, conducted a competent Q&A (i.e., a cross-examination ... yes it was, and should have been) of O. J. Simpson and had they obtained a thorough timeline of Mr. Simpson's whereabouts and activities for the night of the 12th, the defense would have had to try that case – assuming there was even a trial, instead of a plea – quite differently. How can you tell that their questioning was lousy? Easy: the prosecution chose not to introduce into evidence that no-defense-attorney-present, 32-minute Q&A botch-job.]
Now back to Mr. Bonds and team N&N, mostly Mr. Nedrow, who is now trial co-counsel with Matt Parrella:
Pages 39/40:
In response to Mr. Nedrow's question about the effects of using "the lotion" (aka: "the cream") that was supposed to relieve his significant arthritic pains:
A: "Oops. I -- almost said something. [Probably he had the word "shit" in mind ... and Mr. Nedrow should have encouraged him to say it!] ]thought it was really bad[!]. I did not think it did anything[!], to be honest with you [of course, Mr. Bonds], I didn't think it did anything ... there's a lot of companies and people that come up with a lot of gimmicks with us [athletes] ... you try it, you make them happy [of course you do, Mr. Bonds], instead of your [sic] have these long conversations with them all day why it's better than this product, this product. You kind of just say: 'Here, be happy,' move on." [Ahh, easy-going Barry Bonds channeling PBS's easy-going Mr. Rogers, 1928-2003]
Q: "Did Greg ever talk to you about this cream actually being a steroid cream that would, you know, conceal steroids or testosterone in your blood, did Greg ever ask, -- tell you about that?" [Translation: "Would you like to completely contradict the last 20 pages of your under-oath testimony and (a) admit that you knowingly took steroids supplied to you by Greg, thereby incriminating yourself re perjury; and (b) admit that your home run achievements are bogus, thereby placing your first-ballot induction into the Baseball Hall of Fame in grave doubt?"]
A: "No, no." [Translation: "The first 'no' is because I decline your kind opportunity to admit to perjury. The second "no" is because ... well, duh!]
Beginning at page 44, and continuing through page 123, Mr. Nedrow conducted what quickly became a depressing (for anyone who cares about quality cross-examination) slog of dead-end lines of inquiry re Mr. Bonds's knowledge or interpretation of the BALCO records that the government contended memorialized Mr. Bonds's interactions with BALCO. Three representative excerpts from that slog are offered ...
Page 45, Mr. Nedrow asked about the first page of those documents:
Q: "Do you recognize this document, Mr. Bonds?"
A: "No, I don't."
Fast-forward to page 70, Mr. Nedrow asks:
Q: "Do you see, again, 100404; 19 under "Test"; 0.0 and I'll keep going [Yes, he will.] 11-18-01, 16.2 under "Test," 8.0 under "EPI," and 2.0 under "Ratio." Do you see that?"
A: "Yes."
Q: "Do those numbers or entries mean anything to you?"
A; "I don't know what it means at all."
Fast-forward to page 123, Mr. Nedrow asks about the last page of the BALCO documents:
A: "I don't understand this piece of paper. I've never seen it before, once again."
This brought the slog to a close, 79 pages that produced (I weasel ever so slightly here) next to nothing that can be used against Mr. Bonds in this trial, and, I suspect, produced next to nothing that was of use against Mr. Conte and/or Mr. Anderson. However, there was one time when I briefly thought Mr. Nedrow would get to some place good ...
Page 94:
Q: "I'm sorry. Mr. Bonds, but I have to ask because you are a professional athlete, and an enormously successful athlete, but your trust in Greg with these items that don't have packages on them and trusting him on his word, without looking at these [test re steroids] results, I mean, that's a lot of trust for somebody whose body is, as you said, your work, your life, isn't it?" [Comment: Alright, Mr. Nedrow – we'll ignore the "sorry" and the "I have to ask" because you are onto something. Now confront him with the Ruthian-sized contradiction between his undeniable self-interests: (a)to reduce his pain, pain, pain; (b) to stay on the proper side of baseball's drug rules, thus keeping safe his $17,000,000 yearly salary and his first-ballot induction to the BHOF; and (c) to avoid any risk of physically harming himself by the consumption of "bad medicine," on the one hand ... and, on the other hand, his repeated claims that he diligently continued taking two substances of uncertain nature that were obtained from uncertain sources by someone, albeit a friend, who certainly never attended, let alone graduated from, Stanford medical school ... substances that never worked the way he was told they would work re his pain, pain, pain. The label for that credibility argument: "The witness's actions were unreasonably inconsistent with his knowledge and motivation.]
A: It’s exactly right. You’re right. [I am a jerk, but not a stupid one.] I did [not bizarrely] trust Greg [ I knew what I was taking and they worked exactly the way Greg told me it would ... look at my home run numbers.]. And I have other people that have put stuff on my skin, too. I also have trainers in the organization I trust that put cream and stuff on me, too. I put a lot of trust in a lot of people, we do as athletes. [I hope you don't ask many more questions about this.]
Q: "But do you ask them questions about what this stuff is, where they’re getting it, you know, that sort of thing?" [Comment: Good, a follow-up question to the bullshit response above.]
A:. "No, besides: 'It’s hot' or 'It’s cold' or 'We don’t like it' that's it. [Questions such as "Why is my head becoming a balloon? Why all the acne on my back? Why the problems 'down there'? aren't nearly as important as 'hot' and cold.'"] I mean, if we had to ask questions about every single item, we’d be there [?] for a while. If you had to go take it to go test it to make sure it’s -- you know, that’s not how it works in there [?]." [Comment: Mr. Bonds was praying that Mr. Nedrow would now buy this second bullshit response and move on to a different, less dangerous, subject.]
Prayers answered: Mr. Nedrow immediately changed the subject to a quick, nothing question about whether Mr. Bonds had a written contract with Mr. Anderson regarding the weight-lifting training he provided. He then reliably returned to the dead-end slog through the documents about which Mr. Bonds could – rather safe from impeachment – say again and again and again he had no idea about them because they were SOMEONE ELSE'S documents. OMG!
Next time: team N&N's neglected lines of cross-examination.
COMMENTARY #8: MARCH 29, 2011
Shame on Judge Susan Illston!
Yesterday, at the Barry Bonds trial, Kimberly Bell, the former long-term mistress of Barry Bonds, was cross-examined by defense attorney Cristina Arguedas. As reported by the Associated Press, that cross-examination ended with this exchange:
"'You have taken many opportunities to disparage Barry Bonds ... in the most vulgar ways possible?" Arguedas said in a question that was more a statement.'" [Yeah, it's cross.]
"'Did you go on Howard Stern's radio show?" Arguedas continued. "Does he do anything that isn't vulgar?'" [No, Howard Stern is iconic cultural scum.]
"'When Arguedas repeated: "Did you say vulgar things about Barry Bonds?'" [Does Ms. Arguedas really want a full answer to that ... when there is no way for her to directly impeach Ms. Bell's claims – other than Mr. Bonds taking the stand – about the vile things Mr. Bonds did/ said or "did/said"? Hell, no!!]
"'Bell answered: "Please refresh my memory."'[Which is an invitation – i.e., trap – for Ms. Arguedas to put into the record even MORE vile allegations about her own client.]
"'With that, Arguedas took a break to talk with Allen Ruby, Bonds' lead lawyer. After a few moments, Arguedas told the court: "We're going to decline that opportunity to go into the gutter. [Obvious implication: Ms. Bell's territory.] No more questions.'" [The right decision, at least with regard to that line of questioning.]
Now to Judge Susan Illston:
During the trial, I am principally following the every-two-minutes tweets – @markfwespn – of Mark Fainaru-Wada, co-author, with Lance Williams, of the Game of Shadows, the excellent daily wrap-up columns by Lester Munson, ESPN's legal analyst, and Juliet Macur's articles in the New York Times ... along with some stuff by other reporters. Nowhere can I find a report that Judge Illston made any comment in response to the "gutter" remark. That's terrible. Judge Illston – independent of any request by the prosecution – should have admonished Ms. Arguedas ... sharply in my opinion. Ms. Bell may indeed deserve disrespect ... but the "gutter" remark – i.e., name-calling re a witness – disrespected the Court.
Whether the prosecution should have objected – "Counsel is testifying. I ask that her remark be stricken and that she be admonished" – is less certain, though I can't see any downside ... so long as the prosecution's future remarks don't give the defense the opportunity to make a similar request.
COMMENTARY #7: MARCH 27, 2011
Hillary Clinton Does the Word "Any"
Today, Jake Tapper, substitute host on This Week with Christianne Amanpour (actually this week very much without Christiane Amanpour), questioned Secretary of State Hillary Clinton:
Q: You heard the Secretary of Defense [Robert Gates, who was also interviewed, was sitting beside Secretary Clinton.] say that Libya did not pose an actual or imminent threat to the nation and bearing in mind what you just said, I'm still wondering how the administration reconciles the attack without congressional approval with then candidate Obama saying in 2007 the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation and, as a senator, you, yourself in 2007 said this about President Bush [This is a superbly framed question regarding the apparent inconsistency between then Senator Barack Obama's words, and President Barack Obama's actions that Mr. Tapper set up by first getting a "no threat" admission from Secretary Gates]:
[An audio clip of then Senator Clinton: "If the administration [of President George W. Bush] believes that any -- any [she said with emphasis] use of force against Iran is necessary, the President must come to Congress to seek that authority."
Q: "Why not go to Congress [for authority to bomb Libya]?"
A: Well, we would welcome congressional support, [What president wouldn't? But that wasn't the question.] but I don't think [So she is unsure?] that this kind of internationally authorized intervention [So you are saying that approval by Congress is not required if other countries have given their approval for American war planes to bomb a country that poses no threat to the United States, right?] where we are one of a number of countries participating to enforce a humanitarian mission [So you are saying there is a "humanitarian" exception regarding the obligation of a president to get authority from Congress prior to bombing another country, right?] is the kind of unilateral action that either I or President Obama were -- was speaking of several years ago. I think ["think" often indicates uncertainty] that this had a limited timeframe, [Define the "timeframe" exception.] a very clearly defined mission [Define the "very clearly defined mission" exception.] which we are in the process of fulfilling.
Q: "I want to get to a couple other topics before you guys go ... [so I will not make any effort whatsoever to challenge any portion off your bullshit answer because I don't want the Obama administration to cut of the flow of high-level officials as guests on Christiane's show, otherwise This Week with Christiane Amanpour won't get good ratings and the sponsors will flee to other networks.]
What Mr. Tapper might have asked, "Isn't it true that when you spoke – in 2007 – about 'any use of force' requiring prior Congressional authorization, you meant any use of force that might be taken by a Republican president, right?"
COMMENTARY #6: MARCH 27, 2011
Addendum to COMMENTARY #1:
Newt Gingrich Proffers "Cause and Effect"
Today, Chris Wallace, host of Fox News Sunday, questioned Newt Gingrich:
Q: "You were asked recently about the fact that you cheated [good word choice, avoids euphemism] on your first and your second wives, and here's how you responded:
[Video clip played: Mr. Gingrich's statement on Mar 9, 2011, to David Brody, chief political correspondent for the Christian Broadcast Network: "First of all, there's no question that at times in my life, partially driven by how passionately I felt about this country, that I worked far too hard, and that things happened in my life that were not appropriate."]
"Speaker, you've had more than a decade [good phrase] to come up with an answer, and in all honesty, there are a lot of people who thought that answer was kind of ["kind of," sort of," and "in a way" weaken the question] lame. [good word choice] I know [How, Mr. Wallace?] it was heart-felt, [tough to see how the explanation can be heart-felt and lame at the same time] but let me explain why. You love your country, and you're working hard and so [cause and effect relationship claimed] you stray. [Two comments: (a) questioners should discipline themselves to stay with a good word choice: "cheat"; and (b) "stray" unreasonably understates Mr. Gingrich's years of infidelity re two wives.] That wouldn't work ["work" meaning: (a) would not justify the infidelity ... which is what Mr. Wallace probably meant; or (b) would not be viewed as a credible claim re cause and effect].
A: "No, it [what's the antecedent?] didn't work [in what sense?] in my life. [what's the time frame of "in my life"?] And I went on to say that I had to seek God's forgiveness [which doesn't make the statement to Mr. Brody any less lame, unless he is implying that God thought it credible, thus so should all non-Gods], and I had to seek reconciliation, and I had to believe that being genuinely repentant mattered. As you know, Callista and I have a great marriage, [How would Mr. Wallace know that he hasn't cheated on her?] we have two wonderful daughters, [irrelevant to the issue] two great, wonderful grandchildren. [irrelevant to the issue] People have to measure -- at 67 [Is he saying that his testosterone level has dropped below the dangerous "passionate-for-my-country" level?] -- have I matured? Am I a person they can trust and rely on as a leader?"
Mr. Wallace's follow-up questions should have included this one: "So you are indeed saying to the voters of this great country that demanding and noble work caused you - at least partially - to break your sacred vow of marital fidelity to your wife, (fill in the name of wife #1 and/or wife #2), and to engage in repeated acts of sexual congress with another woman (fill in the name of mistress #1 and/or mistress #2), right?"
COMMENTARY #5: MARCH 25, 2011
The Triangle Shirtwaist Factory Fire, March 25, 1911
Max Steuer's Cross-examination of Kate Alterman
One hundred forty-six garment workers, mostly women, died in that famous fire, which greatly helped spur the growth of unions. (I hope Wikipedia got this right ... and many other things because I so often go there for the factual background of the cases and controversies I use in my seminars.)
A criminal trial for homicide resulted: Did the two owners of the building knowingly lock the fire exit doors? Their attorney was the famous Max Steuer. It was many years ago that I first heard of his devastating cross-examination of a key witness, Kate Alterman, one of the garment workers who survived.
The cross-examination is the stuff of legend. Yesterday's New York Times (what a national treasure it is!) in anticipation of this 100-year anniversary, had an article about the fire and offered a good deal of additional information on its website. One passage, written by Sam Roberts, stated:
"In the Triangle case, he [Mr. Steuer] gingerly asked a young garment worker [Ms. Alterman] to repeat her word-for-word eyewitness testimony [that she had first given on direct examination to the prosecutor] suggesting that it might have been rehearsed and memorized. On the fourth account, he interrupted her:
"'Katie, have you not forgotten a word?'"
“'Yes, sir,' she replied smiling. 'I left out one word.'" [Actually two words "wild cat, which she initially used to describe the frenzied actions of the defendants' manager]
“'Well, tell the story again and put the word in,' Steuer asked.'"
"She did. The two defendants were acquitted."
So, the brilliant Mr. Steuer, by recognizing that one rather striking word was omitted from her extremely lengthy narration (445 words) of the series of events and conditions that, according to the prosecution, led to her friends' deaths, Mr. Steuer was able to elicit from her an implied admission ["Yes, sir, I left out one word" ... from my script], he proved that her testimony was cooked. And, bang! ... a "not guilty" verdict flowed therefrom.
That cross-examination is the stuff of legend. Google "Steuer + Alterman" and you get 63,100 hits. I have always wanted to read it, but I couldn't locate a transcript ... until today, when, with some wild cat activity of my own, I got my hands on two copies(?). A few details of my search: a great guy, Henry Lake of PEG (PEG is a big-time provider of high-quality CLE seminars ... http://www.proedgroup.com) sent me a copy of a short book on that very cross-examination authored by renowned advocacy teacher (deceased), Irving Younger. (One of these days, Mr. Younger's "Ten Commandments of Cross-Examination" may be the subject of a commentary here.)
The second transcript I found (shortly after Mr. Lake's kindness) at a website developed by the Cornell School of Industrial and Labor Relations, apparently with the involvement of David Von Drehle, who authored "Triangle: The Fire That Changed America." That website's address is http://digitalcommons.ilr.cornell.edu/triangletrans/14/
A few observations, based on reading those two– differing – copies:
(1) Mr. Steuer did not interrupt Ms. Alterman's narrative, he waited until she had finished. (So what?)
(2) He raised the issue of the missing "wild cat" after her second telling not her fourth. (So what?)
(3) He, not she, identified "wild cat" as the phrase that she had not repeated in her second telling. (So what?)
(4) She did not say, "Yes, sir, I left out one word." So what? The New York Times got it wrong ... as did many of the other sites that I have looked at. The problem is that elusive transcript.
(5) According to Mr. Younger's book, the exchange went like this:
Q. "Now, there was something in that that you left out, I think, Miss Alterman. When Bernstein [defendants' manager] was jumping around, do you remember what that was like? Like a wildcat, wasn't it?"
A. "Like a wildcat."
Q. "You left that out the second time. How long have you lived in Philadelphia?"
Prosecutor: "There being no question predicated upon that, I move that that statement be stricken out."
Judge: "Yes, I will strike it out."
Mr. Steuer: "I except."
Q. "You did leave that out, didn't you, just now, when you told us about Bernstein, that he jumped around like a wildcat?"
A. "Well, I didn't imagine whether a wild cat or a wild dog; I just speak to imagine just exactly."
Q. "How long have you lived in Philadelphia?"
[A slightly odd fascination with Philly, or perhaps he wants to distract her from her script – if that is what testimony is – he does twice more ask her to repeat the story. She says "wild cat" twice more.]
(6) The Cornell site jibes with the above with regard to that exchange.
(7) But the Cornell site, which offers a long explanation (though shorter than this commentary, which I thought was going to be brief), regarding the recovery and preservation of about two-thirds of the trial transcript. Their free pdf is not set-up like a trial transcript with Q&A and it includes lots of "stage direction" comments such as:
• "Page 1147: (told to skip this) ..."
• "Page 1154: Kate Alperman [sic], 9th floor, who worked 4 months, operator."
• "Page 1155: (These are the long passages for comparison purposes)" [re the first telling]
• "Now, here she repeats the entire story". [re the second telling]
• "Page 1165: This is the third time, and he begins it by saying: Now, could you tell us again what you did after that time." [obviously re the third telling]
• "Page 1167: Question: (This is Steuer) What you told us here today, you didn't study that and tell it that way, did you? ... And she tells the fourth time now:" [obviously the fourth telling]
(8) There is Q&A in Mr. Younger's book that is not found in the Cornell version. Why? Was the Cornell version the product of volunteers typing a copy from a document that was too fragile to scan? Don't know. Where did Mr. Younger get the Q&A that doesn't appear in the Cornell version? It's a mystery to me. Did he have access to an original transcript and do a better job than Cornell did of preserving the Q&A?
(9) Here's the big finish, a reward to anyone who waded thru the above: Many websites that I searched for a transcript said something like this one (or rather there are 957 sites that all say the same thing): "Steuer argued to the jury that Alterman and possibly other witnesses had memorized their statements, and might even have been told what to say by the prosecutors."
Makes sense, except the Cornell site offers another free pdf: "Summation by attorney for defendants, Mr. Steuer" (address below), which I read quickly today, but carefully word-searched. In that two-hour final argument, there was not a single mention of Ms. Alterman (or "Ms. Alperman"). Not one!!!!!!! There was only one mention of "wild cat":
"You know Jacob Bernstein his brother is the man who is supposed to have jumped around like a wildcat, Jacob Bernstein is the man supposed to have been seen dying in front of that door."
Here is the beginning of his final argument:
"With Your Honor's permission may it please you, Gentlemen of the Jury:
"There has been sworn as I calculate 155 witnesses on this trial. There were sworn 103
on behalf of the People. Of the 103 that were sworn on behalf of the People there were 51 on matters that arose subsequent to the time of this fire. There were 52 who testified with relation to some matters that have in some way preponderance here under the indictment.
There were sworn on behalf of the defense 52 witnesses."
"Of the 52, 50 testified directly with relation to the matters covered by the indictment; and two only, one Horowitz a locksmith, and the other was a man who gathered debris every morning under a contract. The other 50 who were sworn on behalf of the defense all testified primarily with relation to the door that has been referred to as the Washington Place door in this case. Now it must be obvious to you, therefore, gentlemen at once that where there are 140 odd witnesses to be reviewed that it cannot be done in two hours. I am going to content myself therefore as speedily and as far as I possibly can to call your attention to the testimony on behalf of the defense after I shall have in a very few words, outlined to you what I deem is the charge against these defendants."
"They are accused as you will recall, of the crime of manslaughter in its first and
in its second degree ..."
And on he went for two hours, with the trial judge giving him a five-minute warning. By all accounts Max Steuer was a great trial attorney, so if I am correct (double-check for yourself) that Kate Alterman goes absolutely unmentioned, it must be that this great trial attorney did not believe she wasn't as important a witness as legend would have it.
Here is the address for his final argument:
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1013&context=triangletrans
COMMENTARY #4: MARCH 24, 2011
Athos, Porthos, & Aramis and the Prosecution's
Opening Statement in the Barry Bonds Trial
In Assistant U.S. Attorney Matt Parrella's opening statement, Victor Conte, Greg Anderson, and Barry Bonds were characterized as "The Three Musketeers of BALCO." Mr. Bonds's attorney, Allen Ruby, objected, and U.S. District Judge Susan Illston sustained the objection. I can't find anything on the internet that identified the legal ground he stated for the objection; I assume he offered one; otherwise the good Judge Illston would have (should have) overruled it. His stated ground had to have been "improper argument." If so, the judge's ruling was correct. And, I think it was a good tactic on Mr. Ruby's part to make the objection in an effort to restrain – at least somewhat – the rhetorical force of Mr. Parrella's opening statement.
Nevertheless, Mr. Parrella could hardly have been cowed by the objection and ruling because he went on to say that Mr. Bonds's grand jury testimony was an "utterly ridiculous and unbelievable story." While that statement had the quaint charm of being true, it was legally objectionable. In response, Mr. Ruby made another objection (presumably "improper argument") that was also sustained. Nice work Mr. Ruby and Your Honor.
(At the bottom of this commentary is an example of a trial judge screwing it up.)
I wonder if it flashed through Mr. Ruby's mind to ask the judge to admonish Mr. Parrella for his multiple breaches of opening statement "decorum." Bet it did, but I also bet he thought "No" because he planned to make his own improper arguments, mostly regarding the government's witnesses: (a) "the bitterness of these people toward Barry ... was very, very pervasive"; (b) "created a caricature of Barry Bonds, terrible guy, bad, mean"; (c) "Barry is not a caricature. He's a man," and (d) "poisonous things that have been out there about Barry." Improper arguments all. (Wish I had a transcript of the opening statements. One more "bet": each side made dozens of statements* that – according to "Hoyle on Trial Practice" – constituted improper argument.)
[A few more scraps from Mr. Parrella's opening argument, ahem, statement: "snake oil," "walking billboard," and "rogue chemist."]
Having taught trial advocacy for 16 years, I learned that it is not a snap-of-the-fingers matter for law students to understand what is and what is not strictly permissible to say in an opening statement. My shorthand explanation to them, which required many examples to ultimately make it clear, was that it is permissible to say what the evidence will be, but – strictly speaking – it is impermissible to say what the evidence will mean. Is that clear?
There is no document or witness, I assume, that will say Messrs Conte, Anderson, and Bonds were the Athos, Porthos and Aramis, respectively, of BALCO. Instead, that comparison is one that Mr. Parrella, in effect, contended logically flows from the evidence he expects to be presented, and is a comparison that right thinking jurors will adopt, maybe even embrace as a key truth during jury deliberations. Strictly speaking, any claim (including a characterization) that will not be made by a witness is argument. Opening statements are, strictly speaking, supposed to be devoid of attorney-inference-making, i.e., argument.
Were Mr. Parrella to ask Federal Agent Jeff Novitsky (the government's chief investigator) during his testimony if he believed that Messrs Conte, Anderson, and Bonds were "The Three Musketeers of BALCO," Mr. Ruby would object that the question called for an impermissible conclusion, and the judge would sustain it ... and probably wonder whether Mr. Parrella was dumb regarding the evidence code or was being disrespectful to Mr. Ruby and/or the court. Why should Mr. Parrella – before the nearly no-holds-barred final argument – get to call the defendant a name that a witness wouldn't be allow to call him? None.
Putting the momentary winner-in-front-of-the-jury for Mr. Ruby aside, there are three additional reasons why I think it was a bad decision by Mr. Parrella to make "The Three Musketeers of BALCO" remark:
(a) Part of the defense's case theory is that the government unfairly – perhaps illegally – targeted famous (and, perhaps not coincidentally, African-American) Mr. Bonds for prosecution. Jeff Novitsky was said to be (I haven't read even a single paragraph of his testimony) cross-examined on this very theme. The phrase "overly ambitious prosecutors" is always lurking, especially when the evidence of a defendant's guilt is quite strong. So, depending on how the case develops, the nasty, unprofessional (as Mr. Ruby may well call it) "Musketeers" remark may be combined with other "stuff" to give plausibility to the "ambitious prosecutors and investigators" argument: "They were out to get him. To make a name for themselves. You jurors need to save the country's judicial system. Send a message: vote not guilty."
(b) Why make a promise in opening statement that is vulnerable to attack in final argument. Why make a promise – and promise it was, if Mr. Ruby wants to make it so – that may not be fulfilled in the minds of all 12 jurors? The defense wins if one juror hangs. There is no upside to the comment. Period. It was a feel-good moment for Mr. Parrella. Bad judgment.
(c) It was also a bad metaphor: the "real" Three Musketeers were good guys. The words "The Three Musketeers" immediately conjure up admirable daring and camaraderie, not a sinister conspiracy. So other than the title of a famous book having the number three in it, why use it? Hell, the characterization "BALCO'S Axis of Evil" was available. (Just kidding.)
------
For over two decades, I have tried to follow major trials in the papers ("the papers" will soon be an anachronistic term) and/or, for the last several years, on the internet. So far as I can tell over-the-top improper argument in opening statement is now the "rule," not the exception.
Request: Either officially transform "opening statements" into "opening arguments" ("If it doesn't fit, you must acquit!!") and put a notice of the change in "all the papers" so even trial advocacy teachers in far away California will hear of it, or enforce the prohibition against argument ... when opposing counsel makes a timely objection. The below is an example of a judge failing to enforce the olde rule ... a not uncommon example:
SHARON RUFO VS. O. J. SIMPSON, October 23, 1996
It was in all the papers: a tort case, alleging two wrongful deaths.
Plaintiff's opening statement by Daniel Petrocelli
Good objections by Robert Baker, defendant's principal attorney
Multiple wrong/weak rulings by the Hon. Hiroshi Fujisak, LA County Superior Court
MR. PETROCELLI: We will tell you about Mr. Simpson's flight from the police when they came to arrest him and his apparent thoughts of taking his life, thoughts that are consistent, ladies and gentlemen, only with a person who had killed, and that are totally inconsistent with a man whose children had just lost their mother at the hands of a stranger. [Comment: This is improper argument.]
MR. BAKER: Your Honor, I'm going to object. This is argument, not opening statement.
THE COURT: Overruled. [Comment: Wrong!]
MR. PETROCELLI: Thank you. You will hear how this man came back to Los Angeles on the day after the murders and huddled with lawyers, rather than huddle with his children. [Comment: This is improper argument.]
MR. BAKER: I object, Your Honor. That's argument.
THE COURT: Sustained. [Comment: Right ... and inconsistent with the prior ruling.]
MR. PETROCELLI: We will reveal to you lies and deceptions in the sworn testimony of Mr. Simpson when questioned under oath for the first time. [Comment: This is improper argument.]
MR. BAKER: I'll object again, Your Honor. That's argument.
MR. PETROCELLI: Your Honor, this is what we will introduce.
THE COURT: Overruled. [Comment: Wrong!! ... and inconsistent with the prior ruling.]
MR. PETROCELLI: We will reveal to you lies and deceptions in the sworn testimony of Mr. Simpson when questioned under oath for the first time about his involvement in these murders. We will prove to you that when asked all the important questions about his involvement in these murders, O.J. Simpson could not, would not, and did not tell the truth. [Comment: This is improper argument.]
MR. BAKER: Your Honor, I'll object again. This is argument.
THE COURT: Overruled. [Comment: Wrong!!!]
MR. PETROCELLI: And finally, ladies and gentlemen, we will show that when faced with the truth of his blood, his hair, his clothing, his gloves, his shoes, his Bronco, his rage, his motive, his words, and his actions, you will see how Mr. Simpson in this trial will resort to theories of police conspiracies, frame-ups, cover-ups and incompetence, to try to explain away all of the incriminating evidence. And we will show you that there is not one ounce of evidence, not one ounce of proof, and not one ounce of truth to any of these things. We will demonstrate to you that far from these theories born out of desperation, there is only one. [Comment: This is improper argument.]
MR. BAKER: I object. Again, this is simply argument theory. "Born out of desperation" is argument.
THE COURT: Sustained. [Comment: Right.]
------ (a short time later)
MR. PETROCELLI: Now, understand something: Mr. Simpson will testify that he was home at 10:20 p.m., and he will further testify that his car was right here, where he claims he parked it earlier in the evening. But Allan Park will destroy that alibi. [Comment: This is improper argument.]
MR. BAKER: I object. That's argument. I object, Your Honor.
THE COURT: I'm going to ask you to save your argument for --
MR. PETROCELLI: Okay.
THE COURT: -- for closing argument. [Comment: This is lousy judging.]
COMMENTARY #3: MARCH 23, 2011
One Woefully Lame Deposition:
U.S.D.O.J. vs. Barry Bonds (Part #2)
See the two disclosures (re ignorance and bias) set forth in Part #1.
Google "smoking gun + Bonds + transcript" for a copy of the deposition transcript.
The questioning of Mr. Bonds went on for 131 pages before Assistant U.S. Attorney Jeff Nedrow stated that he and his colleague, Assistant U.S. Attorney Ross Nadel (occasionally referred to below as "team N&N"), had "concluded our factual questions for Mr. Bonds," at which time members of the grand jury were invited to pose questions. Thereafter, the grand jury members, the two prosecutors, and Mr. Bonds generated another 15 pages of Q&A. Apparently, another witness (baseball player Benito Santiago) was scheduled to be questioned later that afternoon (Mr. Bonds's deposition ended at 4:16 p.m.), but I assume that the government was free to demand that Mr. Bonds return on another day for another session of Q&A. If my assumption is accurate, then by ending the deposition (page 148: "You're excused, Mr. Bonds. Thank you very much. You're free to go.") and not demanding a second day of testimony, team N&N were, in effect, saying that they had – to their satisfaction – thoroughly and skillfully questioned him on all relevant matters.
The wondrous, twin beauties of a deposition cross-examination, as opposed to a trial cross-examination, are (a) time to think and develop lines of inquiry and attack, time to take a second, even a third, shot at a subject that was poorly addressed the first time around, and (b) very low risk that a trial juror will ever learn of the cross-examiner's failed lines of inquiry and/or attack.
In my judgment, Mr. Nedrow and Mr. Nadel squandered a golden opportunity (no impatient judge to hurry them along, no defense attorney to pose objections or ask for a recess, and no trial jurors to observe the questioner's extemporaneous flubs, awkward pauses and dead-end lines of inquiry) to attack Mr. Bonds's litany of claims of "I didn't know," "I don't remember," and "Whatever, Dude!"
The division of labor between the two prosecutors was roughly 80/20, Mr. Nedrow/Mr. Nadel. Mr. Nadel's Q&A produced about 28 pages of the 131 pages that preceded the grand jurors' questioning. A bit more about that division of labor will be offered another time. Now back to where COMMENTARY #2 left off.
At page 25, Mr. Nedrow asks Mr. Bonds about the "flax seed oil thing," which apparently involves putting drops of the substance underneath the tongue ... or, perhaps, drinking it. The questioning does not make that matter clear (no pun re "the clear" intended).
The questioner below is Mr. Nedrow unless otherwise noted.
Page 26:
A: "And I was, like -- you know, to me it didn't even work. You know, me, I'm 39 years old. I'm dealing with pain.[!] All I want the pain [!] relief, you know?"
[Comment: Back on page 17, Mr. Bonds stated that the purpose of the blood/urine samples was to detect, and correct, any potential imbalance in his body chemistry, such as zinc and/or magnesium levels. Now the claimed rationale for his use of flax seed oil and the cream is to relieve pain, pain, pain. There were no questions about Mr. Bonds ever having received legitimate lab reports regarding the balance or imbalance of anything in his body.]
Q: "Mm-hmm."
A: "And, you know, to recover, night games to day games. That's it. And I didn't think the stuff [both the flax seed oil and the cream?] worked. I was like: 'Dude, whatever,' but he's my friend you know?"
[Comment: Amazing! He claims that he continued to take substances that did absolutely nothing for his pain, pain, pain. So why did he continue? Because Mr. Anderson was his friend? Incredible! What is equally incredible is team N&N left this claim unchallenged. Here Mr. Nedrow strikes out without taking the bat off his shoulder. Mr. Nadel does the same below.]
Page 29:
Q: "Okay. Had you ever taken flax seed oil, by the way, before?"
[Comment: "By the way"? Really?]
A: "I never asked Greg. When he said it was flax seed oil, I just said: 'Whatever.' It was in the ballpark."
[Comment: It is evident that part of Mr. Bonds's deposition strategy – to buttress his claim that he at all times had a good faith belief in the legality of the substances Mr. Anderson supplied him – was to repeatedly proclaim that his interactions with Mr. Anderson all occurred out in the open ... where people with a clear conscience, such as he, are willing to operate. His 7th-inning-deposition-stretch ditty would be titled, "Bring Me The Clear At The Ballpark" ...
Page 27: "He brought it to the ballpark."
Page 29: "It was in the ballpark."
Page 29: "In front of everybody. I mean, all the reporters, my teammates. I mean, they all saw it. I didn't hide it."
Page 30: "At the ballpark."
Page 31: "We were in the ballpark, inside the stadium."
Page 36: "I was at the ballpark ... he came to me at the ballpark."
Page 37: "Greg brought it to me, brought it to the ballpark."
Page 38: "He came with the ballpark."
Page 55: "In front of all these people at the ballpark."
Page 64: "He did it right there in the locker room."
Page 88: "In front of my locker, sitting in my chair."
Page 88: "It was always at the ballpark."
Page 103: "At the ballpark."
So there should have been questioning about who, at the ballpark, Mr. Bonds claims saw him receive substances from Mr. Anderson; who saw him consume/apply those substances; who he spoke with about those substances. Why not let teammates in on the (anticipated) pain relief? There were no such questions.]
Q: "Right."
[Comment: Not right! He didn't answer the question that he was asked. Again!]
Page 30:
Q: "Okay. Did you even know what flax seed oil was at the time he [first] presented it to you?"
A: "Not really. [i.e., some] Not at all." [i.e., none]
[Comment: Make him pick one: some or none are mutually exclusive. Which ever he chooses, the limits of his purported ignorance should have been defined: "Tell us all that you know about flax seed oil: where it comes from; how it is processed; what dangers its use poses, what respected hospitals or doctors have ever confirmed that it would relieve pain?" Define the purported limits of his efforts to obtain any information whatsoever about flax seed oil: zero!! The first sentence of Aristotle's "Metaphysics" is "All men by nature desire to know." Except, apparently, Barry Bonds concerning the consumption of unknown chemicals recommended by a non-doctor. Sure.]
Pages 30/31, Mr. Nadel questioning:
Q: "Did you notice after you took it that it [flax seed oil] had any affect --- appeared to you to have an affect on you at all?"
[Comment: Put a time frame in the question: "From the very first time you took any of the supposed flax seed oil ... ?" Even better, Mr. Nadel should have used the earlier "it didn't even work" answer (page 26, above) in a series of questions that began to challenge his claim that he continued using an unknown, absolutely useless substance to try to relieve his pain, pain, pain. That said, Mr. Bonds gives Mr. Nadel even better phrase to work with. See next.]
A: "I -- I told him: 'It's not doing crap. I'm still in pain. I'm still feeling the pain.'"
[Comment: "Not doing crap" is a wonderful piece of rhetoric that should have been turned into a refrain that was used in dozens of questions. The pdf-copy of the transcript I obtained from The Smoking Gun website doesn't allow me to change it into text or do a word search, but I believe that the term "crap" was not used by either questioner after this page. Sad. Moreover, Mr. Bonds was not asked what he said to Mr. Anderson about being supplied with a substance ("the flax seed oil") that turned out to be crap as a pain, pain, pain reliever. Also sad.]
Q: "You yourself -- "
A: "I still felt fatigued and had a heart condition in Arizona. It's not working."
[Comment: "It's not working." The same could be said of team N&N. No doubt they were trying, but that's not the same as working: effective. So yet another cross-examination "invitation" got ignored: "it didn't even work," "it's not doing crap," and "its not working."]
Page 34, Mr. Nadel questioning:
Q: "Did Greg tell you where he got the flax seed oil from?"
A: "I never asked him, I just assumed it was BALCO. I never asked him."
[Comment: Mr. Bonds's incredible (aka: perjurious) claim that he lacked even basic curiosity regarding the efficacy, reliability, source, and safety of the uncertain substances Mr. Anderson supplied him went pathetically unchallenged.]
Page 36, Mr. Nadel questioning:
Q: "How often were you supposed to take that lotion [the cream]?"
[Comment: Why so vague? Better: "Based on your hundreds of opportunities to converse with (non-doctor, non-chemistry-major) Mr. Anderson, your long-time friend, what was your understanding of how often (maybe: how many times a day/week) you were supposed to use the cream, so that you could obtain the biggest relief from the horrible pains you suffered? Surely your great friend would want you to have the best information so that you could obtain the very best result, right? It was a matter of great importance to be relieved from the pain, pain, pain, right? And what did you great friend say when you told him that it was crap ... as, now doubt, a straightforward person like you would do?"]
A: "I didn't take it that often [in comparison to what?] at all, I can't recall how many times, but it wasn't that much at all."
[Comment: Mr. Nadel accepted this non-answer by immediately moving on to a different subject. Why even bother to ask the question? Mr. Bonds often – every few pages, at least – succeeded in changing the scope of important questions because team N&N allowed him to do it. Terrible cross-examination.]
COMMENTARY #2: MARCH 22, 2011
One Woefully Lame Deposition:
U.S.D.O.J. vs. Barry Bonds (Part #1)
On December 3, 2003, Assistant U.S. attorneys Jeff Nedrow and Ross Nadel conducted the grand jury deposition of home run king** Barry Bonds in course of the federal government's investigation of the BALCO case, which involved the illegal distribution of steroids to professional athletes. Prior to the deposition, Bonds invoked the 5th Amendment. In response, the government gave him immunity and compelled him to testify. The grant of immunity, of course, did not cover any perjury he might commit during the course of that deposition.
Long story made short:
In 2005 Victor Conte, the founder of BALCO, and Greg Anderson, a long-time friend and trainer of Mr. Bonds, each pled guilty to the illegal distribution of steroids. On November 15, 2007, the government indicted Mr. Bonds, alleging that he had committed perjury multiple times in the deposition. Jury selection for his trial in a federal court in San Francisco was completed yesterday. Both sides made opening statements today; testimony commenced and will continue for a few weeks.
Disclosure #1: Other than reviewing the four indictments (the original and three amended indictments), a couple of the motions related to the defense's challenge of the legal adequacy of many of the counts of alleged perjury in the various indictments, and a close study of the deposition of Mr. Bonds, I claim to know no more about this case than any other faithful reader of the daily sports pages and/or occasional listener of San Francisco sports talk radio.
Disclosure #2: In the contest between the team of Mr. Nedrow and Mr. Nadel vs. Mr. Bonds, I was unreservedly rooting for team N & N. Even if I had not been the son of a San Francisco cop, the relative of five other San Francisco cops, a former San Francisco cop myself (and former deputy district attorney in two California counties), as a 25-year teacher of cross-examination, my strong sympathies are almost always with the cross-examiner, not the witness. Plus, a Google search of "Barry Bonds + jerk" produces 1,620,000 hits, and now one more ... all well deserved.
(**Henry Aaron is the real home run king at 755 no-steroidal homers, unless one might wish to consider that Babe Ruth hit 715 with 3,955 fewer at-bats than Mr. Aaron.)
The first 16 pages of the deposition address the 5th Amendment, Mr. Bonds's status as a baseball player, and the history of his friendship with Mr. Anderson. At page 17, there is a mention of vitamins and protein shakes and Mr. Anderson's request that Mr. Bonds provide blood and urine samples to BALCO through Mr. Anderson to determine if Mr. Bonds had a zinc or magnesium deficiency. The plot thickens ... the cross-examiners have been put on notice: "Bullshit ahead." (For a copy of the deposition, Google "smoking gun + Bonds + transcript"; then click on the top result.]
All the questions below were asked by Mr. Nedrow.
Pages 18/19:
Q: "Okay. How many times did you provide blood samples for testing? Was that a common thing or just happen a few times? Or what would you estimate?"
[Comment: Pick a damn question ... maybe one of the four above.]
A: "I don't know, maybe five or six times, maximum."
[Comment: "When was the first? The last? Details? So you're saying – from the time in 1998 when you and Mr. Anderson renewed your friendship up until today – for sure you gave samples of blood to Mr. Anderson – directly or indirectly – no more than six times, right?" Force him to make as many specific claims as possible ... or force him to claim that he doesn't remember the first/last/details ... if so, how can he reliably claim a maximum number of samples?]
Q: "And regarding the urine samples -- let me ask, I guess, the same questions [No, please don't.] regarding the urine samples. How often did you provide those?"
[Comment: The use of "often" asks for the frequency (e.g., once a month); it does not ask for the total number of samples, though it can help get there. Small point: This question is not the same as the first question.]
A: "Oh, I can't recall.[1] Maybe[2] four times maybe.[3] I don't recall."[4]
[Comment: Mr. Nedrow should be wondering if someone advised Mr. Bonds that loading 1-4 into a single response would make it more difficult to prove perjury? Thus, he should have sharpened the questions and follow-ups. "Are you saying that – from the time in 1998 when you and Mr. Anderson renewed your friendship up until today – you definitely provided more blood samples to him than urine samples?" In comments to the last two responses, I have added a time frame: from the time in 1998 when you and Mr. Anderson renewed your friendship up until today. Mr. Nedrow failed to include a time frame in many, many of his questions.]
Q: "So, understanding four would be a kind of estimate, but kind of in the ballpark, or around four?"
[Comment: He should have asked: "When was the first urine sample? The last? Details?"]
A: "Yes."
[Comment: A "yes" to what? A kind of estimate? A kind of in the ballpark (pun noted) estimate? What is that? "Mr. Bonds, are you saying with certainty that it could not possibly have been 10 times? 8 times? Why are you so sure?" My case-ignorance may be showing here, but if the government has a record of the number of samples, why not show them to Mr. Bonds?]
Q. "Did he ask you why -- or, excuse me, did he tell you why urine samples?"
[Comment: What a crappy question. Better: "Did he ever give you any information whatsoever about any purpose he thought might be served by taking the urine/blood samples to BALCO?" Mr. Bonds and Mr. Nedrow seem to have forgotten the purported zinc and magnesium deficiencies mentioned on page 17.]
A. "No. I didn't -- we were friends. [What?] I didn't ask Greg a bunch of questions. [That wasn't the question; it was re what Greg said to Mr. Bonds.] We are friends, we grew up together, you know, we don't do that stuff. [What stuff?] If he needs something, fine, fine".
[Comment: The response screams "deception," yet there was no challenge whatsoever by Mr. Nedrow. "It isn't every day that a friend asks you to supply blood and urine samples so he can take them to some laboratory that you had no connection with, right? You say that you didn't ask Greg a bunch of questions. Tell us all the questions you did ask him before agreeing to give him your blood and urine? It wouldn't have taken very long to ask a few questions of him, and of the Giants's trainer, right?" Mr. Nadel heard the question-dodging and returned to what Mr. Anderson said to Mr. Bonds, but didn't do much with his two pages of questions.]
Page 21:
Q. "What was Greg's connection or relationship with BALCO [Victor Conte]?"
[Comment: Again Mr. Nedrow leaves out the time frame of the question: what Mr. Bonds knew at the time the first sample was requested by Mr. Anderson, now (December 3, 2003), or sometime in between.]
A. "I have no idea their personal relationship or any -- relationship. I don't get into anyone's business like that."
[Comment: Define the limits of Mr. Bonds's purported ignorance: "So you had no information whatsoever whether there was any financial benefit (non-exclusive examples offered as illustrations) either one derived from the relationship. You had no information whatsoever if there was a social relationship (non-exclusive examples offered as illustrations) between the two, right? So far as you were aware, their only connection whatsoever was that where Mr. Anderson brought your blood and/or your urine to BALCO for testing and nothing else, is that your testimony? And, in all the time that you were exercising with Mr. Anderson or socializing with him, not once did he ever say anything about his association with BALCO except that of his being your blood/urine delivery man to BALCO, right? And when you say that you don't get into anyone's business, wasn't your blood and your urine your business? Isn't it true that given all the accusations in the sports world about the use of steroids, you certainly recognized that there was at least some risk that the results of the testing of your blood/urine – true or false – might violate the privacy you hold so dear." The possibilities for cross-examination were indeed rich.]
Page 24:
A. "And everyone tries to give me everything. You got companies that provide us with more junk to try than anything. And you know that as well. I was fatigued, tired, and needed recovery, you know. And this guy says: 'Try this cream, try this cream.' And Greg came to the ballpark and he said, you know: 'This will help you recover,' and he rubbed some cream on my arm, like, some lotion-type stuff, and, like, gave me some flax seed oil, man. It's, like: 'Whatever, dude.'"
[Comment: By the time of this response, the team of N&N had to know that they were witnessing a crime: perjury. Thus, it was time for Mr. Nedrow to stow away his "nice-guy" mien (e.g., page 5, line 1 to page 6, line 5; page 10, lines 17-19; page 12, line 15 to page 13, lines 1-12; page 21, lines 10-12) and to go full cross-examination mode. "So, here you were, Mr. Bonds, greatly fatigued, tired, and in dire need of recovery from the heavy physical toll that the demands of your profession inflict on your body, and you're saying that along came non-chemistry-major Greg who says 'try the cream' – whatever chemicals may be in that – and you do it without any question – 'whatever, dude' – because you and Greg went to grammar school and high school together, right? You didn't ever say, "Let's discuss it with the team trainer and/or the team doctor, right? That's your bullshit story, right?"]
COMMENTARY #1: MARCH 10, 2011
Newt Gingrich Proffers "Cause and Effect"
On Mar 9, 2011, David Brody, chief political correspondent for the Christian Broadcast Network, interviewed Newt Gingrich, the former Speaker of the House of Representatives, about the latter's extramarital sexual affairs that resulted in the break-up of Gingrich's first and second marriages:
Brody: "You know the question, and I'm not going to ask it the way everybody else will ask it, but as it relates to the past, and some of those personal issues that you've had. You've talked about how God is a forgiving God, and I'd like you to expand upon that: as you went through some of those difficulties, how you saw God's forgiving nature in all of that."
Gingrich: "Well, I mean, first of all, there's no question that at times in my life, partially driven by how passionately I felt about this country, that I worked far too hard, and that things happened in my life that were not appropriate. And what I can tell you is that when I did things that were wrong, I wasn't trapped in situation ethics, I was doing things that were wrong, and yet I was doing them. I found that I felt compelled to seek God's forgiveness – not God's understanding, but God's forgiveness – and that I do believe in a forgiving God. And I think most people, deep down in their hearts, hope there's a forgiving God."
Through the use of leading questions, looping, and rhetoric, Mr. Brody's follow-up "cross-examination" should have been something like this:
1. "So you are saying that your profound passion for this exceptional country caused you, at times, to work far too hard in trying to advance American goals and values, right?"
2. "And, you are saying that demanding and noble work caused you - at least partially - to break your sacred vow of marital fidelity to your wife, (fill in the name of wife #1 and/or wife #2), and to engage in repeated acts of sexual congress with another woman (fill in the name of mistress #1 and/or mistress #2), right?"
3. "When you say that your serial vow-breaking was partially driven by the great passion you felt for this country, isn't it true that you were also driven, at least in part, by selfish lust?"
4. "If you chose to run for the presidency, you will promise not to repeat such despicable conduct, right?"
5. "Therefore, if you become president, do you plan to feel less passionate about this great country than you did during the 'infidelity years,' or do you plan to work less hard for this great country than you did during the 'infidelity years,' or do you plan to be both less passionate and hard-working than you were during the 'infidelity years,' so that you don't repeat such despicable conduct?"
Mr. Gingrich wants to employ "things" as a safe-to-him placeholder for a lot of bad conduct and for the same purpose "at times" to avoid saying "for several years." Mr. Brody should have used rhetoric (i.e., "profound passion," "exceptional country," "American goals and values," "sacred vow," "repeated acts of sexual congress," "serial vow-breaking," "selfish lust," "despicable," and "great country") to define and intensify "things" and "at times"; thereby forcing Mr. Gingrich to agree with that rhetoric or, if he were to reject it, to force him to run the risk of looking dishonest and/or as someone with flawed values.