There’s a popular saying about how there are different ways to do something. For example,
there’s more than 1 way to skin a cat.
In essence this sayings means that there are different ways to express the same sentiment or thought:
different people have different ways to doing the same thing and both ways may be quite effective as well.
While I have developed a style of cross examination that I refer to as “Killer Cross Examination” that is based on my style, personality and approach, there are other extremely effective lawyers that cross examine a different way. Some are extremely effective and have the results to prove it. In other words, my approach is not the only way to “skin the proverbial cat.” And like an artist who can appreciate the artistry of another painter’s work, I too can appreciate the beauty and craftsmanship in another lawyer’s cross examination style. Today, we take a brief look at my friend, James “Jim” Amberg’s style of cross examination by examining his cross examination of an informant, Marcus Harvey, in a drug/RICO trial.
About Jim Amberg
A bit about our subject, Jim Amberg, before we examine his cross examination style for while the words appear on the page, they gain more impact if you can picture the actual live examination. To do that, we have to describe Jim a bit.
First, Jim is nothing if not energetic, passionate and excited. Literally. Jim is a bright light — from the moment you meet him until he leaves, he is full of energy. Not angry energy mind you … but energy that is infectious and captivating . I wouldn’t want Jim’s voice and energy to be the first thing I see and hear in the morning upon waking after a long night of drinking with little sleep but it is just the sort of energy that I’d want in someone who was leading me into battle or leading me my team onto the football field. Jim’s demeanor and energy can get you fired up.
Second, Jim is funny. He makes no apologies for his sarcasm but when he is sarcastic, he is so with a smile on his face rather than a sneer. He almost appears to be enjoying his own humor.
Last, Jim is fearless. I’ve seen him in court and he relishes the fight.
The Case – The Informant-Witness
With that as the backdrop, Jim was defending a young man who was accused of participating in a local gang that wrecked havoc in Detroit, Michigan. This gang regularly participated in drug deals, handgun acquisitions, robberies and murder. Each of the young men involved were accused of killing people at various times of their young lives. One young man in particular was arrested and accused of participating in the gang organization. He faced a sentence that would have likely resulted in his incarceration for life. However, the young man decided to cooperate with the federal authorities and talk on others. Despite several meeting with agents, he never once mentioned Amberg’s client. Looking for an even more favorable deal, the witness mentioned Amberg’s client in a late, late debriefing. Amberg sought to exploit the following on cross examination:
- The witness’ own culpability;
- The witness’ plea and sentence deal that would spare him a life sentence;
- The witness’ involvement relative Amberg’s clients, i.e., that the witness was more involved yet was cooperating with the government against his relatively uninvolved client;
- The witness’ omissions in earlier interviews;
- The witness’ failure to mention his client immediately;
- Contradictions between the witness’ story and the DEA reports; and,
- The overall character of the informant.
Amberg did an excellent job demonstrating how incredible the informant-cooperating witness was when he cross examined him recently. Here are excerpts:
Challenging The Witness’s Claims – Tying Him To A Post
I like to call this practice tethering the witness to a statement or “tying him to a post.” The lawyer is in possession of a statement that the witness made elsewhere and has the ability to prove that the witness made the statement. The witness is effectively tethered to it, i.e., admit it or deny at your own peril and be cross examined about it. You tie him to the post.
If the witness denies the statement, he is impeached with 1) the fact that he is refuting his own words and 2) ultimately by the testimony of the person that took or heard the statement. Here is an example of Amberg did that here:
Notice how Amberg actually uses “memory” and “denials” to emphasize the witness’ denial about that statements, eg, you don’t remember saying or you didn’t say, etc. He is reminding the jurors that the witness’ claim is not believable.
Something else he does is pit the witness against the government agents or police officers. By asking the witness questions like, “So, if Agent [so and so] put that in his report, he must have been wrong?”, he is directly forcing the witness to choose between contradicting himself or contradicting the agent. When the witness indicated that the agent must’ve been wrong, the witness lost much credibility. This is well done.
Here, Amberg discusses omissions with the witness. Pointing out what a witness said is important but so is pointing out what a witness omits. Here, despite sitting down to discuss others involved in crime as a part of a cooperation agreement, the witness never mentions Amberg’s client. Amberg points this out by discussing the absence.
Here is another example of tethering the witness to a statement.
Amberg tied the witness or tethered the witness to another post — this time a tape recorded interview between the witness and the police. When the witness acknowledges the interview, Amberg moves in for the kill to point out what the witness did and did not talk about. As you can see, this is not the first time the witness has ducked what he told agents in those interview sessions. First, he denies making certain statements in an interview, then testifies that the agent must’ve been wrong and now the witness is disputing a tape recording. With each answer, Amberg is stretching the witness past the point of believability.
Humor To Finish Him Off
I am a firm believer in using humor where one can to make a point. A laughing jury is not a hanging jury, an old saying goes. Amberg is from the same school.
The witness has testified that money given to him was not for marijuana or pot. He has testified to picnics, parties and barbecues however. Amberg combines the two and the use of the word “pot” to point out the absurdity in the witness’ testimony and to convey what he thinks of it:
Did you see it?
so it might not have been pot money, it might have been potluck money
Amberg is finishing him off with humor. The refusal of the witness to concede that the collected money by a group dealing drugs was for drugs/pot is silly. There was no reason for the witness to deny this claim other than his desire to avoid admitting to more crime or his feeling that Amberg had made him look and sound untruthful. Rather than admit it, he chose to sound even more untruthful.
Amberg gave him just enough rope for the witness to figuratively hang himself. This too was well done.
The lesson in Amberg’s cross examination is simple: use your own personality to challenge and cross examine witnesses. Amberg does this well. He uses wit, humor and smarts to force the witness to be his own worst enemy. Amberg literally gave this witness a chance to tell the truth, i.e., “I needed more people to throw under the bus and so I picked on your client” and when the witness didn’t admit that, Amberg forced him to admit everything but …
Neil Rockind, Rockind Law
Criminal Defense Lawyer