Listening And Watching – Use All Your Senses

I’ve often watched lawyers in trial frantically writing down whatever the witness is testifying to on direct examination.  The lawyer writes the witnesses answers on one side of a piece of paper and then writes comments on the other side.  Head down, face buried in his/her pad, pen frantically writing, the lawyer thinks that he’s doing his job.  He’s not.

In the middle of trial is no time to become a stenographer or scrivener.  Sure, you want to note some things that the witness is saying to remember them or have them available for cross examination or closing argument but not everything.  If you’re doing that, you’re depriving your client and you of one some of your most important senses — the ability to see and listen.

In the middle of our white collar criminal trial, this part of a killer cross examination, i.e., listening and watching during direct, proved itself invaluable.  As the witness was testifying, he seemed like he’d be difficult to break or neutralize.  But the more I listened to his tone and watched his demeanor, I could sense that he was hiding something:  his axe to grind with our client.   He had asked for a raise and hadn’t gotten one.  He tried 3x and was denied.  Then he decided to change his “tone” he testified.  It dawned on me, by watching and listening to him that his demeanor was likely what had resulted in him not getting promoted but instead of blaming himself, he blamed our client.  Because my head wasn’t in my legal pad, I could use my senses to pick up on it and I did.

On cross examination, his tone and demeanor was revealed:

Q:  You’re not acting differently in court than you do elsewhere are you?

A: No.

Q: So this is how act at work too, right?

A: Yes.

Q: You raise your voice and get loud then right?

A: I’m passionate.

Q: You don’t think your employer is allowed to consider your demeanor and tone when deciding whether to promote you?

A: I should be treated the same.

Q: So you’d deny your employer the right to consider your demeanor and tone?

A: I should be treated equal.

Q: So you feel that you weren’t?

A: Yes.

Q: And you blame (our client) for that, right?

A: He’s the one that didn’t give me a raise.

Q: And you blame him?

A: Yes.

By listening and watching, I could pick up on his animus towards our client.  No one would seriously think he was well suited for a job – his demeanor was horrible.  By watching and listening, we were able to pick up and develop the basis for this witnesses bias and even highlight to the jury how his behavior in court likely resembled his behavior at work.

A killer cross examination requires listening and watching and taking your face out of your notepad so that you can use all of your senses.

Florida notice could give ‘White Boy’ Rick Wershe first taste of freedom in 30 years (Press – WDIV)

Florida notice could give ‘White Boy’ Rick Wershe first taste of freedom in 30 years

Wershe faces prison time in Florida for role in car theft ring from behind bars

DETROIT – The Local 4 Defenders are following two new developments in the “White Boy” Rick Wershe case, one in Michigan and one in Florida.

An extradition hearing has been set pending Wershe’s upcoming release from Michigan prison after nearly 30 years.

The process is starting to move quickly in Wershe’s case. First up is an extradition hearing in Michigan. If he has to go to Florida at all, he can be released in Michigan and then go to Florida to turn himself in.

Wershe is a man in limbo with courts ready to take action in Florida and Michigan. During the extradition hearing in Michigan, Florida must prove it has the right to transport Wershe from the Michigan prison to a Florida prison for his role in a car theft ring while behind bars.

Local 4 legal expert Neil Rockind said because Wershe is expected to waive his right to extradition and willingly go to Florida, it will be a quick hearing with little drama.

“The hearing itself will take place in front of a judge,” Rockind said. “It will be extremely brief. The judge will get presented some documents that show that Florida wants him, and that Michigan and Florida are both part of this compact, and that Rick Wershe is who they say he is.”

On Monday in Martin County, Florida, attorney Wayne Richter announced that he will represent Wershe on a request for a furlough hearing, which would ask Florida to save the time and cost of coming to Michigan to pick up Wershe and allow him to turn himself in. It would give Wershe a small amount of time to visit with his family before being admitted into the Florida Department of Corrections.

“They’re going to try to make a plea that Florida does not have to, it is not obligated to spend the money and go get him,” Rockind said.

Wershe is hoping to convince Florida to forgive his entire sentence, arguing his 29 years behind bars for a juvenile drug offense is more than enough time for both his offenses. But that fight will only come after the extradition hearing in Michigan.

“I just want to get down there and get it over with,” Wershe said. “If I have to go, I have to go. I’m not going to avoid it. I just want to get started.”

There’s no set date or location for the extradition hearing. It could take place up north, where Wershe is in prison, or in Detroit, where he committed his drug offense. It will happen soon, because right now, Michigan is paying to house Wershe.

After the hearing, Florida taxpayers will pick up the bill.

If Wershe is allowed to turn himself in, that would be his first taste of freedom in almost three decades.

Copyright 2017 by WDIV ClickOnDetroit – All rights reserved.
Via WDIV

“When the witness is digging himself a hole, keep the shovel in his hands”

Killer Cross Examination Snippet from P v Morrow

“When the witness is digging himself a hole, keep the shovel in his hands”

Killer-Cross-Examination

The informant took the stand to attempt to finish his “work” for the Straits Area Narcotics Enforcement (SANE) drug team. He thought he’d be cagey and try to argue with me as I cross examined him. Ask those in the attendance whether his caginess or attempt to “talk back to me” worked. I suggest that most in attendance realized that he was only digging himself a deeper a hole.  I kept the shovel in his hands.  

Here is a summary of just one portion of the killer cross examination of this informant-witness:

 Q:        You would lie to get yourself out of trouble?

 A:         No.

 Q:        You’ve admitted as much under oath in the past, right?

A:         No.

Q:        You testified in oath in {this other case}?

 A:         Yes.

Q:        Weren’t you asked this question, “You would like to get yourself out of trouble?” and your answer was, “Yes.”

A:         Yes.

Q:        So you lied earlier today?

A:         No.

Q:        You denied that you’d lie to help yourself get out of trouble and you denied that you said that under oath earlier.   Those were lies, right?

A:         Yes, I guess.

Q:        There’s not much to guesswork in that is there?

A:         I don’t know what you mean.

A killer cross examination can expose the witness’s willingness to lie but also by addressing each aspect of the lie, e.g., in the past, in the present, etc., reveals the witnesses willingness to continually lie even in court.  When a witness is digging himself a hole, make sure that you keep the shovel in his hands and get him to keep digging. 

(This is a summary of an excerpt of one portion of the cross examination of the informant.   It is not meant to state that this is an identical transcript or verbatim copy of the transcript.)

Stay tuned from more revelations from the cross examination of the informant in the Morrow case as well as cross examinations of the officer in charge – those too proved to be quite revealing.

 

Twisting Them Up

Once in a while, if the cross examine is persistent enough, a witness just loses his cool.  The witness, pressed for information by a dogged cross examiner, becomes impatient and reveals that he is just not believable by answering a question defiantly and nonsensically.   A killer cross examination can reveal a witness to be unhinged and unreliable.

In this case, a police officer was trying to fence and parry with me as I cross examined him.  He was cagey, as thought he was trying to think too much about what the answers meant rather than just answer the questions.  After hearing him testify that he called a uniformed officer to the scene for a “police presence”, I pressed him on the true meaning of that concept.  I was trying to establish that my client was not free to leave and the police presence rendered him detained.   Read along and watch for the officer losing it, i.e, becoming unhinged and offering up testimony that was defiant, blubber and nonsense.

Cop - Twisted Police Authority 1

Cross- Police Authority Twisted 2

Cross Police Authority Twisted 3

Cross Police Authority Twisted 5

The killer cross examination trapped the officer into the image of a “police presence” and after it was too late, he tried to argue, obfuscate and talk his way out of it.  His answer to the strong police presence question was argumentative, meandering, rubbish, blubbering and nonsensical.  It reads like he was babbling and it was only worse in person.  He should have conceded the point but didn’t want to give us something valuable and helpful to our case.

This is an effective part of a cross examination — force the witness into a compromising position and force him to either concede the point with helpful testimony or testify as this officer did — nonsensically.   This officer chose to argue further undermining his credibility.

Stay tuned for more killer cross examination segments as we have a whole new batch of transcripts to discuss and talk about.

 

Memory

Sometimes, you catch a witness testifying so vaguely on details and so similarly to their statement or police report that it seems like the witness has no independent recollection of the events.  A killer cross examination can expose this witness’ attempt to testify without an adequate memory or recollection.

In a recent drug case, I caught a police officer doing just that — repeating what was in his report and failing to offer any significant details other than those referenced in his police report.  I sensed that he had no recollection of the even and instead was just testifying from his report.  Here is how I exposed his lack of memory:

Q: officer, are you testifying from memory or from your report?
A: memory.
Q: you sure that you have an independent memory of the incident?
A: yes.
Q: what was the type of door?
A: i don’t know.
Q: what color was it?
A: I don’t know
Q: were there windows on it?
A: i don’t know recall
Q: what was the floor material?
A: I don’t recall
Q: what were the walls made of?
A: I don’t recall
Q: what was the layout?
A: I don’t recall
Q: how many jars were there?
A: I don’t recall. many.
Q: what is many … help us out please?
A: I don’t know. maybe 20
Q: where was my client when he was ordered to the ground?
A: he was ordered to ground.
Q: you saw it?
A: yes.
Q: where?
A: I don’t recall.

By probing and not being afraid of his answers, I exposed that he had no independent memory of the event.  During this cross examination, I exposed this officer and his colleagues in other ways too.  All were crippling to their credibility.  Stay tuned for more stories from this cross examination.

You’re Holding My Pen: Proving A Point During A Cross Examination

The Phone

It was quite a sight.  The seasoned police detective had been on the witness stand for awhile.  He had testified on direct examination and been cross examined for a while by several lawyers.  The “the pen” happened.   “The pen” is one of those moments that makes the courtroom stand still and it did here as well.  Want to know what happened?  I bet … read on.

One of the state’s arguments was that text messages on a phone found in my client’s pocket were sent and received by him.  Mind you that none of the texts mentioned his name, initials, nickname nor bore any identifying information that they were sent by him.   There was no identifying information that the phone even belonged to my client other than the fact that it was in his pocket.  The state didn’t know if he had picked it up with plans to use it, picked it up and put it in his pocket or if it was his and he had lent to another.  It had no evidence that the phone belonged to him and that the texts were sent by and received by him.

Nevertheless, the state and detective fought to tie those texts to my client.  It’s principle argument was that the phone was in my client’s possession and thus … it must be his and … thus the texts must be his.  “The pen” did a lot to disprove

The Pen

blue-bic-biro-pen

As I was cross examining the detective, he was fiddling with a pen.  I smiled and asked him about the pen.  It went something like this …

Q:  you’re holding a pen?

A:  yes.

Q:  where did you get it?

A:  it was up here on the stand.

Q:  you just picked it up?

A:  yes, I guess so.

Q:  are you aware that is my pen?

A:  no.

Q: So the fact that you’re holding it, tells us nothing about whose pen it is?

A:  I guess not.

Holding my pen, “the pen”, the detective had proven our point about the phone.  The fact that someone holds or possesses an object tells you very little about who owns it and who was using it previously.  The fact that a phone was found on my client at one moment in time tells us little about whose phone it is and who used it to text.

How did this develop?  Active listening and paying attention in the moment.  I have long advocated that lawyers should while cross examining should avoid being overly wed to a notepad or a list of questions.  Being fixed to a set of questions prevents the lawyer from watching, listening and reacting to what is actually happening with the witness.   As I was cross examining the detective, I observed him holding my pen.  At that moment, in real time, I realized what opportunities were available if I put the right questions to him.  And so … I did.

The pen.  The real time cross examination.  The points made.  A killer cross examination.

The Power Of Good Cross – Judge And Cop Had Private Conversation Before Affidavit Sworn

Bad cross examination wastes time and typically sinks the client further into the abyss. Good cross examination however is revealing… It reveals facts, motives, biases and errors that would otherwise be covered up or overlooked.  Today, a good cross examination exposed the blurred lines between the judiciary and the police, a frequently occurring phenomenon as judges act more and more like members of law enforcement and not independent referees or ministers of justice.

Today, I cross examined a police officer on his conduct.  It was extremely productive but one subject it was eye opening:

He admitted that prior to being sworn in or submitting an affidavit to the judge, he had a telephone call with the judge where he gave her details and she even asked questions.  The off-record conversation was not recorded, was not on the record and it was usworn.

My jaw hit the table. The office reluctantly admitted as much and only after he realized what he admitted did he try and back away from it but … there it was.

I’m Not Going To Be Cross Examined By “That” Lawyer

So the worst kept secret in Michigan is out:  it is not fun to be cross examined by me.  Not fun at all.  I wouldn’t compare it to getting one’s teeth pulled.  However, I would compare it to trying to out punch your shadow.  Trying to fend me off is tiring and usually pointless.  It is a fight that can’t be won.  But, you don’t have to take my word for it … take the word of others that have watched it first hand or experience it.

One person watched the officer’s eyes as I walked into the courtroom, and he swore that they showed fear in their eyes.

There are other stories too:

The retired police officer that reminds me on social media what it was like to be cross examined by me.  Every time we post a transcript or a video, he comments and chuckles and reminds me of an encounter we had.  He dreaded the experience.

Or, there are the thousands of people that watched our YouTube.com videos of my cross examinations of a Michigan State Trooper in a circuit court trial.   Read the comments … you’ll see what they think.

But one stands out to me.  I cross examined several witnesses in a personal protection order hearing and some of the potential witnesses watched me do it. They were going to be witnesses for the opposing party.  One look and they changed their minds.  They said:

I’m not going to be cross examined by that guy.

snody-rockind-crosssnody-rockind-cross

Pretty high praise for my style of cross examination.  Killer Cross Examination.

 

Neil Rockind

Fun Friday | Two Excerpts From A Masterpiece Cross Examination Of A Seasoned Cop

In a racketeering and criminal enterprise case involving four (4) top lawyers, it fell upon me to cross examine the cop that was the centerpiece of the state’s case.  I knew that was my purpose in being in the case and I made sure that I rose to the occasion.  The clients and lawyers were counting on me and I was going to deliver.  This is an Excerpt from the Cross of Gray, my cross examination that assisted in obtaining a dismissal in a high profile racketeering case.

In this segment of Killer Cross Examination, you should notice two (2) things:  my calling out the witness’ physical reaction to questioning and his ultimate reaction when he was cornered and realized that I had trapped him.  These are keys for developing a killer cross examination.

First, witnesses testify with more than just their words — they physically react.  Prosecutor’s call out when a witness uses his hands to show a distance or an angle but there is more to be put on the record than angles, etc.  One can do what I did and that is — call out the witness’ physical reaction to testifying.

In the Cross of Gray, the penetrating nature of the cross examination caused the witness to tremble.  We all saw it and I wanted the record to reflect it.  So … I made sure that it did:

Bill Gray Trembling

Notice how I literally called him on his physical reaction.  He was trembling from the pressure that the questions placed on him and I wanted the record to bear that out.  This is important and too many lawyers don’t do this.  Instead, they’d remember it but never record it.

Additionally, sometimes you trap a witness to such a degree that they utter something that leaves a lasting impression — an admission if you will that they’re done, cooked, etc.  When a seasoned cop utters the word “shit” at finding himself in a trap, you know that he’s cooked.   This happened in this excerpt of the Cross of Gray:

Bill Gray  - Oh Shit

The witness was cornered.  He had literally been trapped in a corner where I had pointed out that his conduct was “a wink” to our client to continue to operate his business and that, contrary to his testimony, he didn’t want to bust him.  When he realized he was cornered, he admitted it and then uttered the unthinkable

….. shit.

Killer cross examination is effective and fun (particularly when you make them tremble and swear on the witness stand.)

Enjoy the Dream Cruise.

Neil Rockind

Establishing Bias Of An Informant With Active Listening – In The Moment

I’ve always preached that you have to be “in the moment” when cross examining a witness.  While its okay to have notes and an outline, you must listen to the witness in real time and react to what he/she says.  In a recent case in which I cross examined an informant, the witness let slip a single word, “we” during my cross examination of him.  This single word revealed just how biased he was.  More importantly, I caught it because I was listening and I used it as a dagger against him and the state:

Establishing Bias - Informant

Notice how he uttered the word “we” while trying to explain something:

… they have a protocol just like we did

I heard it and I pounced:

Q: When you say “we”, you’re referring to the police department?

A: Yes.

Q: The people you were working with?

A: Yes.

Q: You’re (sic) partners in this case?

A: Yes.

With the utterance of a single word, “we”, I got the witness to admit that he and the police were partners.  Partners!

This was only possible because I was listening to the testimony and reacting in real time.  This is killer cross examination.