My favorite professor in law school was Hayford O. Enwall, a retired Federal prosecutor who had a "war story" to illustrate every point of law he covered in each of his classes. I believe that learned more about the practice of law from Professor Enwall than I did from all my other professors combined. At least since the time that Plato wrote his dialogs, we have been teaching by telling stories, and it is an effective way to get one's point across.
Shane Read, a Federal prosecutor and an adjunct law professor, has adapted the Enwall method of teaching by story telling in "Turning Points at Trial" to the illustrate important principles of trial advocacy, and the result is both informative and entertaining. Read takes each aspect of the lawyer's craft and tells the story of how a master craftsman performed brilliantly. He begins with a short biographical sketch of the actor, introduces the case, discusses the issues, uses excerpts from the transcript of the trial to show how the lawyer achieved a stunning victory, and then interviews the lawyer to gain insight into the lawyer's strategies and tactics. The cases are interesting; the issues are important; the victims are worthy of empathy; the villains are villainous; and the heroes are heroic.
I got the book day before yesterday and planned to take my time and read a chapter now and again in my spare time. After I read the first chapter, I set the project I was working on to the side and finished the book this afternoon. I won't say that it was as gripping as a David Baldacci thriller, but it certainly had me hooked. The stories were uniformly interesting and some of them were quite moving. Chapter 5 in particular, which dealt with a rape prosecution, was difficult to read. I handled sexual assault cases during all 32 years of my active practice and prosecuted a steady stream of them for about 15 years. That chapter brought back too many unpleasant memories.
The book is divided into seven parts, with one part each for Opening Statement, Direct Examination, Cross-Examination, Cross of the Expert, Closing Argument, Depositions, and Appellate Argument. Each part has multiple chapters, and each chapter is devoted to a different lawyer with a slightly different approach to the same task.
The principles enunciated throughout the book are sound, and I found myself saying "Amen" to numerous comments that the lawyers made during their interviews. No experienced trial lawyer, however, has ever looked at the work of another trial lawyer without finding something to disagree with. I spent my entire career in criminal court, and on the rare occasions when I went to civil court it was usually because I had been subpoenaed as a witness. I was flabbergasted at what civil plaintiff's attorneys can get away with saying in opening statement and final argument. Some of the things they can say in a wrongful death case will cause an instant mistrial in a murder case. If you're a young prosecutor reading this book, I strongly suggest that you do a little legal research about the propriety of some of those statements before you incorporate them into your arguments. With that caveat in mind, the book is an excellent teaching tool for anyone wishing to learn more about the finer points of trial advocacy.
POSTSCRIPT: The book has one factual error that I feel constrained to clear up because it tends to besmirch the integrity of our 16th president. Chapter 6 tells the story of how Allan Dershowitz won a case on cross-examination by pretending to have a non-existent transcript. When he was called down by the judge about it, Dershowitz defended himself by saying that Abraham Lincoln had done much the same thing when he used a faked almanac to break down the testimony of a perjured witness. Lincoln never did any such thing. The almanac was for the correct year, as attested by two members of the jury, John T. Brady and Milton Logan, and confirmed by the investigation of Lincoln biographers Albert Beveridge, J. McCan Davis, William F. Barton, Jason Gridley, and a host of others. The fake almanac canard was a lie made up by Lincoln's opponents in the 1860 presidential election. There's an old saying that a lie can go around the world before the truth gets its boots on. That's certainly true of the lie about Lincoln and the fake almanac.
Wednesday, August 24, 2016
Thursday, August 11, 2016
Since the book Jim Dedman and I wrote on the Lindbergh Kidnapping case is coming out on September 15, I thought it might be good to post an annotated table of contents for the book to let folks know what it's about.
THE LINDBERGH KIDNAPPING CASE:
A CRITICAL ANALYSIS OF THE TRIAL OF BRUNO RICHARD HAUPTMANN
ANNOTATED TABLE OF CONTENTS
Introduction, page ix—Sets the parameters of the book, sets its objects, and describes our methodology.
Dramatis Personae, page xiii—Introduces the main actors in the case.
CHAPTER 1: The Kidnapping, page 1—Describes the circumstances of the kidnapping of Charles Lindbergh Jr., the ensuing investigation, and the arrest of Bruno Richard Hauptmann.
CHAPTER 2: Extraditing Hauptmann, page 11—Describes Hauptmann’s extradition hearing in the Bronx and critiques the performance of the lawyers.
CHAPTER 3: Preparing the Prosecution Case, page 33—Analyzes the evidence available to the prosecution, describes how it was marshalled, and discusses the problems confronting the prosecution team. Introduces a modular system for evidentiary analysis and presentation.
CHAPTER 4: Preparing the Defense, page 69—Analyzes the evidence available to the defense, decribes how it was marshalled, and discusses the problems confronting the defense team.
CHAPTER 5: The Prosecution Case, page 77—Describes and critiques how the prosecution case was presented.
CHAPTER 6: The Defense Case, Part 1: Hauptmann Testifies, page 135—Discusses the wisdom of calling Hauptmann as a witness, discusses strategies for handling his testimony on both direct and cross-examination, and describes how his testimony was delivered in court.
CHAPTER 7: The Defense Case, Part 2: Reasonable Doubts, page 177—Critiques the various theories of innocence presented by the defense, dividing the defense into modules, and discussing how they may have been better presented.
CHAPTER 8: Summing Up the Case, page 239—Discusses and critiques the final arguments delivered by the prosecution and defense.
CHAPTER 9: Verdict and Aftermath, page 291—Describes the post-conviction litigation of the case up to and including Hauptmann’s execution.
APPENDIX A: Timeline, page 331—Fits the various facts presented by the prosecution and defense into a timeline demonstrating the conflicts between the two theories presented at trial.
APPENDIX B: Proof Modules, page 351—Lists the prosecution proof modules in alphabetical order with a listing of the supporting witnesses and a summary of their testimony.
APPENDIX C: Points on Appeal, page 367—Sets out the points raised in Hauptmann’s appeal and the Court’s ruling on those points.
Table of Cases, page 373
Bibliography, page 375
Index, page 379
How is it that Donald Trump did so well in the primaries and is tanking so badly in the general election? I think the answer is that if the primaries were run as they should have been run, the Republican Party (and perhaps the Democrats also) would have a different nominee. What am I talking about? I’m talking about runoff elections. We claim to be a “democratic” society, yet we elect our public officials most undemocratically. If there are three or more candidates for office in a race, we award the race to the candidate who receives the most votes regardless of whether that candidate receives more than 50% of the votes.
Before a certain date, in primaries the delegates are divided among the candidates according to the percentage of the votes they got. After a certain date, the primary elections are winner-take-all, no matter how small the "winner's" margin of victory.
Take this example: Tom, Dick, Harry, Larry, Moe, Curly, Shemp, Groucho, Harpo, Chico, and Zeppo run for Dog Catcher. Tom gets 11 votes; Dick gets 10 votes; Harry, Larry, Moe, Curly, Shemp, Groucho, Harpo, and Chico each get 9 votes; and Zeppo gets 7 votes. There is no runoff. Tom is elected Dog Catcher despite the fact that 89% of the voters didn’t want him. With a runoff, that 89% would be given a choice between Tom and Dick, and the person elected Dog Catcher would be the choice of a majority of the voters. With multiple candidates in an election, our system looks more like a game of dice than a democracy. And the electorate often rolls snake eyes.
For example, Florida was a winner-take-all state. Trump got 45.7% of the votes and all 99 delegates. With a runoff, the voters would have chosen between Trump and Marco Rubio. Rubio would probably have gotten the lion's share of the votes cast for the other eleven candidates, and in the leadup to the second primary Trump likely would have alienated enough of his first primary voters to give the 99 delegates to Rubio.
In Florida we used to have runoff elections in Democratic and Republican primaries. I don’t have statistics to back this observation up, but it seemed to me that very frequently the top vote-getter in the first primary was soundly defeated in the second primary. Several years ago Florida decided runoff elections in primaries were too costly and did away with them, giving the election to the winner of a plurality of the votes. Then I noticed something else that I don’t have any statistics to back up. It seemed to me that very unpopular and/or very incompetent candidates were getting elected to office because multiple popular and/or good candidates split the votes of the majority of the voters so that the least desirable candidate got elected.
That’s what happened on a grand scale in the primaries with Trump. He appealed to a sizeable minority of disaffected Republican voters, and they were able to swamp the majority voters, who split their votes among the host of other Republican candidates. Had there been a runoff in each of these primaries, Trump would have lost most of them, and probably no candidate would have gone to the Republican Convention with enough delegates to secure the nomination. The result would have been that the Convention would have compromised on the most electable of the candidates—certainly not Trump—and that candidate would have gone on to trounce Hillary Clinton in the general election.
Trump can’t possibly get elected. The sizeable minority of voters he appeals to cannot overpower a majority split among multiple competing candidates in the general election because there is only one other viable candidate in the general election—Hillary Clinton. The sizeable minority that she appeals to will eagerly vote for her, and the majority of people who are offended by Trump as a human being and/or frightened of Trump as a president will reluctantly vote for her.
We thus see history repeating itself, but not quite. Bill Clinton was elected president the first time because an egomaniacal moneybags ran for president as a third party candidate and sucked enough votes away from George H.W. Bush to give the election to an egomaniacal career politician. Hillary Clinton will be elected president because an egomaniacal moneybags ran for president, scuttling the Republican Party in the process, and gave the election to an egomaniacal career politician.
The only silver lining I see in this mess is the fact that Trump is so far behind Clinton in the polls that it probably won't be necessary for me to vote for her. If the polling continues as it has over the last few days I can safely squander my vote on Gary Johnson, the Libertarian Party candidate.
Tuesday, August 9, 2016
For those who are interested, reviews of The Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann are now available by following this hyperlink: REVIEWS