Jailjouse informants. Every criminal defense lawyer in a major case in which his/her client is in custody in jail fears one of these low-lifes coming out of the woodwork. These informants seek favor from the police and government by offering testimony against someone with a case pending. They are sketchy, unreliable and unfortunately, dangerous witnesses. Too often, juries rest guilty verdicts on these witnesses. Too often lawyers do a poor job of cross examining these informants. In the case of Mark Lundy, charged with murdering his wife and daughter, a jailhouse informant materialized out of thin air. The witness claimed that Lundy said he would’ve got away with what he’d done, if his daughter hadn’t walked in and seen what he was doing to his wife.
The witness also claimed that Lundy told him he’d been planning what he did for some time, and “she had it coming to her”. One part of Lundy’s lawyer’s cross examination of the informant caught our attention at KillerCrossExamination.com.
The informant testified that he met Lundy while they were in the segregation wing of a prison, in 2002. He’s told the court he got chatting to Lundy while in the prison yard. According to the informant, Lundy told him that he was waiting for an appeal to go through, but didn’t explain it.
Lundy’s lawyer seized on some information that he obtained from an investigation into the informant’s background, e.g., a probation report that referred to the informant as “manipulative” and aggressive when doesn’t get his own way. The witness could hardly deny what was in the report. And then, using the “manipulative” reference, the lawyer went to work on a glaring hole in the witness’s story: that Lundy said he was on appeal while in the yard. Why? Lundy was not on appeal.
Lundy’s lawyer, using a bit of killer cross examination, pulled some jail records and noted that the informant and Lundy were jailed together before his first trial and thus before any appeal.
“He wouldn’t have been waiting for an appeal because he hadn’t even been convicted,” he says.
Witness X replied, “he told me he was waiting for an appeal”.
Lundy’s lawyer then used the probation report to impeach the witness:
“Are you being manipulative again,” pressed Burns.
“No,” Witness X replied.
Meticulous attention to detail and a thorough investigation into the informant’s background is required in order to pull off a killer cross examination. Some lawyers think that we just stide up to the podium or lectern in a courtroom and outwit the witness “off the cuff”. They are wrong. Conducting a killer cross examination requires skill, talent and wit, that is of course true, but it also requires something additional: preparation. Lundy’s lawyer likely neutralized this witness by obtaining information about the witness’ past, constructing a timeline and then reviewing that timeline against the facts.
Neil Rockind is a criminal defense lawyer with Rockind Law, a criminal defense trial firm in Southfield, Michigan. Rockind has won virtually every award and accolade available to lawyers, including, Top Lawyer, Super Lawyer, Top 100, Top 50, Top 10, Leading Lawyer, Legals Finest and a Leader in the Law. The Detroit Legal News referred to Rockind as “Tenacious”. Laws.com characterized Rockind as someone who fights for the underdog. Rockind is the Channel 4-WDIV (NBC) local television analyst/expert. Rockind handles drug, alcohol related, white collar and assault type cases in and around the state of Michigan and in federal court. He is the author of killercrossexamination.com.