Cross-Examination Blog: COLD READING TECHNIQUE FOR CROSS-EXAMINATION

Cross-Examination Blog: COLD READING TECHNIQUE FOR CROSS-EXAMINATION: Years ago a friend of mine asked me (Bob Dekle) to watch a late night television show with him. In the show, a psychic summoned dead rela...

AMPHIBIOUS ASSAULTS

My father served in the Third Marine Division during WWII, seeing action at Bougainville, Guam, and Iwo Jima. He almost never talked about his combat experiences, although he would occasionally tell funny stories about non-combat related incidents.

Over the years I have had many people tell me that they thought my father was utterly fearless, how he was able to "keep [his] head when all about him were losing theirs." As for myself, I had never seen him display fear, even in situations where I was scared to death, until an incident which occurred shortly after I graduated from college.

I was visiting my parents and we were watching a documentary on D-Day. As the narrator described the preparations for the landing, Dad became more and more agitated. Dad was upset because they weren't going in at high tide, and more men would be killed because there would be more exposed beach to cross before getting to cover inland. It was obvious that he was distressed by the prospect of soldiers dying on the beaches of Normandy. I wanted to watch the documentary, but I was afraid that the next scenes would be scenes of soldiers being killed as they waded ashore. I suggested that we change the channel.

Later, in the lead up to the ground combat phase of Desert Storm, there were news reports that the Marine Corps was lobbying for an amphibious landing as a part of the invasion. The mere thought of making such a landing appalled my father. He said that if they could find any way to invade Kuwait without making such a landing, they should do so. He was certain that an amphibious assault would result in needless casualties. I tried to reassured him that the technology for such assaults was probably far better than what they had during WWII, but he was adamant. I won't use his exact words, but I got the impression that he thought the Marine Corps brass was "intellectually challenged" for insisting on an amphibious assault.

I only heard my father describe his involvement in an amphibious assault on one occasion. It was his first assault at Bougainville. He said the landing craft operator was too frightened to go all the way up to the beach and dropped the gangplank when they were in about six feet of water. Dad, who was in the front of the landing craft, stepped out and went straight to the bottom, losing his helmet and rifle, and getting trampled by the Marines behind him. When he got to shore, he was helmetless and unarmed. I asked him what he did about losing his helmet and rifle, and he said he had no trouble getting replacements onshore. He didn't elaborate, and I didn't ask.

I cannot begin to imagine what it would be like to be involved in an amphibious assault. Judging from Dad's attitude toward them I'm certain that I never want to find out.

BODY LANGUAGE AS A SIGN OF DECEPTION

A few months ago I channel-surfed through a trailer for The Mentalist which showed the hero telling a suspect “I know you’re lying because you [winked, looked away, gave some other body language indication of lying].” My immediate reaction was to say “Baloney!” and keep on channel surfing. I don’t remember the specific tell that the mentalist described, but I do remember thinking that there were hundreds of innocent explanations for why a witness would do that during an interrogation.

Here’s my take on body language. We are all experts at interpreting body language if we leave the interpretation at the subconscious level. Have you ever had this happen? You see someone reacting in a way that makes you mistrust him, you can’t really put your finger on what it is, but you are uncomfortable. Trust that feeling. Your subconscious interpreted the person’s body language as that of an untruthful witness based on thousands of generations of heredity. Our remote ancestors’ survival depended on reading body language, and they passed their talent on to their offspring, who passed it on to their offspring, who eventually passed it on to us. This type of interpretation happens in the more primitive parts of our brains. If we try to overthink it, we wind up in "analysis paralysis" like Aesop's centipede. When asked how he could operate so many legs in unison without getting them tangled up, the centipede admitted that he didn't know, but he'd concentrate on it and figure out how he did it. The more he thought about it, the more tangled his legs became, until he was completely immobile with his legs tied in knots.

I think we're better off leaving body language interpretation on the subconscious level. I’ve read several articles on body language which says if someone does this or that, it’s a sure sign of lying, and I’m not convinced. I agree with Phillip Houston and Michael Floyd (authors of Spy the Lie: Former CIA Officers Teach You How to Detect Deception), who rightly say that no one body language quirk is a sure sign of lying, it’s simply an indicator that you might want to take a critical look at what the witness is telling you. If the witness displays enough body language tells, your subconscious is going to decide they're lying before your conscious can apply the principles you learned in body language class.

One of my favorite bogus signs of lying is the crossed-arm stance. “Whenever someone crosses their arms in front of you,” so the pundits say, “they’re getting defensive, and they’re getting defensive because they’re lying.” Once again, I say “Baloney!” Obviously the people who peddle this brand of baloney have never encountered a bodybuilder or a teenage boy. Take a look at these two bodybuilders and try to decide if they’re (a) lying, (b) acting defensive, or (c) showing off their muscles.

 

 

I struck that pose several times when I was a teenage weightlifter, usually in front of a pretty girl.

There are any number of reasons unrelated to lying why people fold their arms across their chests. Sometimes they even do it because they’re cold.

 

 

THE MENACE OF TALCUM POWDER

It appears to me that modern American culture has degenerated into a hog-calling contest with people chanting “Sue! Sue! Sue! Sue!” (When I lived on a farm as a child we called the hogs by yelling “Sooey!”) I mentioned in an earlier blog post that I had gotten an invitation to join a class action lawsuit against New York’s Metropolitan Museum of Art. The heinous crime they were guilty of? They didn’t make it clear enough that the modest fee they solicited from entrants into the museum was a voluntary contribution and that admission was actually free.

Now I’ve gotten another invitation to join a class action lawsuit. It seems that somebody thinks talcum powder causes ovarian cancer. Somehow the lawyers handling the suit arising from this health menace found out I had bought some talcum powder. I applaud their industry in ferreting out this fact. If they had investigated a little further they would have discovered that I don’t have ovaries.

Perhaps I am being unfair. It is possible this law firm contends that talcum powder poses other health risks in addition to ovarian cancer. All I have to do to find out is click on the icon that says "Click here for more information." I clicked on the icon that says "Move to spam folder" instead.

I half expect that someday I will receive an invitation to join a class action lawsuit against God because he kicked Adam and Eve out of the Garden of Eden.

MEMORIES OF MURDER WEAPONS

I was in the gym this morning trying to reduce my waist size when some of the patrons began to ask me questions about the prosecution of Ted Bundy. This doesn’t happen as much as it did 30 years ago, but it does happen from time to time. One of the men asked me if we had ever found the murder weapon. He reminded me that sometime shortly after Bundy’s conviction I had told him about my belief that we may have found the murder weapon. This immediately conjured up a memory of an event which I had not thought of in many years.

It seems that shortly after Bundy’s conviction, we were informed that a law enforcement officer out in the Panhandle had found Bundy camping and taken a huge knife away from him. The knife was supposedly in some agency’s property room. I asked that it be run down and taken into FDLE custody in case of a reversal and a retrial. I do not recall hearing anything more of the incident and don’t know whether the knife was recovered.

If you have read The Last Murder, you will recall that the Medical Examiner had opined that the cause of death was “homicidal violence to the neck area, type undetermined, accompanied by copious bleeding.” Just the day before the abduction Bundy had bought a huge Buck General hunting knife at a Jacksonville sporting goods store. It doesn’t take a great deal of brainpower to infer that the Buck General was what caused the “homicidal violence to the neck area.” We spent a lot of time, energy, and effort trying to find that knife, but were never able to locate it. Then, after the trial was completely over, like belated manna from heaven, we learned about the officer who had relieved Bundy of a gigantic knife just a day or two before his arrest in Pensacola.

Was it the murder weapon? Was the guy really Bundy? I can’t remember enough detail to say. I learned of the incident in 1980 after Bundy’s conviction. It is now 34 years later. At this distance in time from the incident I can’t really say how much of my vivid memory is real and how much is imagined. Our memory does not work like a DVD. We don’t have a video of every incident in our lives, and we can’t simply rewind the video and replay it to get a 100% accurate account of a long-ago event.

Our brains only record the gist of an event, and when we recall it to memory, it is somewhat like looking at a jigsaw puzzle with pieces missing. Whenever you look at a partially assembled jigsaw puzzle you can usually infer what the missing portion of the picture looks like. That’s what our mind does when the gist of a memory is recalled. Subconsciously our brains fill in the blank spaces with reasonable inferences of what must have happened. As time passes and more pieces of the puzzle go missing, reasonable inference is less able to reconstruct the incident, and imagination takes over. Psychologists call this process confabulation, which is a fancy word for lying. But it’s not really lying, because the process goes on subconsciously and we think we are remembering actual details.

That’s why we have conflicts in testimony, and that’s why the conflicts tend to become more pronounced as time goes by. Nobody’s lying, their subconscious minds are just filling in different details to the gist of a memory that the witnesses all share. For example, some survivors of the Titanic said the ship broke in two before it went down. Others said it went down intact. This conflict in testimony doesn’t mean that the Titanic completed its voyage by docking in New York. We have pictures of the ship resting on the bottom of the ocean. The two groups of survivors agree as to the gist of the event (the Titanic went down), and that memory is accurate. As the saying goes, however, the Devil is in the details of how it went down.

 

So I have this vivid memory with details that may or may not be true. It was at a campground in a State park. The officer was a wildlife officer. Bundy was found chopping on a stump with the knife. All this may be true or it may be confabulation. What isn’t negotiable about my memory is the fact that an officer took a huge knife away from Bundy shortly before Bundy got arrested in Pensacola. That much is corroborated by my friend remembering that I told him the same facts.  

So the next time two people are telling you about an event and they are in hopeless conflict about the details, don’t assume that either one of them is lying. Just take the details that they both agree on as being the gist of a genuine memory and weigh the conflicting details against each other and against reasonable probabilities to separate the genuine memory from the confabulation. In our Titanic example, I think the witnesses who say the ship broke in two are more likely right. Reason: Photographs of the ship on the bottom of the ocean show it is broken in two.

BTW: Back in 1978, the Buck General hunting knife was configured like a Bowie knife. I don’t know what current models of the knife look like. This makes for an interesting parallel between Ted Bundy and Danny Rolling. Rolling committed his murders with a Ka-Bar fighting/utility knife, which is also configured like a Bowie knife.

 

JOHN'S GOSPEL AND ANTI-SEMITISM

I was recently engaged in a discussion where someone voiced the opinion that John the Evangelist was anti-Semitic because he had some harsh words to say about "the Jews." I believe  that he was mistaken, and I think this mistaken reading of John's Gospel has wrought a lot of mischief down through the ages. I tried to show that John (nor any other Evangelist) was anti-Semitic in my book The Case Against Christ: A Critique of the Prosecutionof Jesus. 

Here's the Reader's Digest version of what I wrote in the book: Saying that John was anti-Semitic because he didn’t like “Jews” is like saying a Southerner is anti-American because he doesn’t like Yankees. The first century religious/ethnic group we think of as “Jews” called themselves Israelites. Non-Israelites called them all “Jews” just as non-Americans call all US citizens “Yankees.” Pilate called Jesus King of the Jews, but John called him King of Israel. (John 1:49; 12:13). There were Galilean Israelites, Idumean Israelites, Diaspora Israelites, and Judean Israelites, all of whom would be considered “Jews” by their gentile contemporaries, but among the Israelites only Judean Israelites would be considered “Jews.” The people John calls “Jews” were only the Judean Israelites. Indeed, “Judean” is a better translation of the Greek word than “Jew.” John’s Israelite/Jewish contemporaries would not have read him as anti-Semitic, but simply anti-Judean. After the passage of time and the forgetting of first century nuance in the labeling of “Jews” versus “Israelites,” John came to be mistakenly read as anti-Semitic. See, e.g. John H. Elliot, “Jesus the Israelite Was neither a ‘Jew’ nor a ‘Christian’: On Correcting Misleading Nomenclature,” Journal for the Study of the Historical Jesus, Vol. 5.2 pp. 119-154.

I think it was Will Rogers who said we know a lot of stuff that just ain't so. As I tried to demonstrate in The Case Against Christ, our "knowledge" that John the Evangelist was anti-Semitic just ain't so.

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN AS A TRIAL LAWYER

ABRAHAM LINCOLN'S ALMANAC TRIAL: LINCOLN AS A TRIAL LAWYER: Today many trial lawyers quake in their boots at the prospect of actually having to try a case to a jury. I have seen a lot of so-called t...

AMERICA'S FAVORITE PASTIME: LAMBASTING PRESIDENTS

Lyndon Johnson was looking forward to running for a second term when an ABJ (Anybody but Johnson) movement began. Public opposition to him and his policies hounded him to the point that he decided not to run for that second term. Richard Nixon was driven from office by the Watergate scandal. His successor, Gerald Ford, was ridiculed as an incompetent klutz who had “played too much football without a helmet.” Ford was defeated in the next election. Jimmy Carter was roasted as an incompetent and lost his bid for reelection. Ronald Reagan was reviled as a nincompoop, and his second term was mired in the Iran-Contra scandal. George H.W. Bush was so roundly criticized that he lost his bid for reelection. Bill Clinton’s second term was mired in the Lewinsky scandal. George W. Bush is still being blamed for perceived problems in our society.

America’s favorite sport is not football, it’s lambasting presidents. Critics of our presidents have attacked them for many and varied reasons. Sometimes those reasons have been laudable, sometimes not. I have to believe, however, that the vast majority of those criticisms leveled at our presidents were motivated by a sincere desire to advance the best interests of the United States.

We again have a president who is under fire, and it appears that his second term might be mired in a controversy over Benghazi. I have heard a number of persons spring to his defense, not by defending his policies and actions, but by accusing his critics of racism. He’s being criticized just as his predecessors have been criticized, and his critics are guilty of racism? I think not.

Besides, when we are evaluating criticisms of our public officials, the question should not be whether his critics are racists, it should be whether their criticisms are valid. What if a racist shouts, “The building is on fire! Head for the fire escapes!” Would you say “Pay no mind to him, he’s a racist,” and stay in the building?

Now, if the critic were to, say, manufacture a bogus student ID as “evidence” that the president was not a citizen of the United States, you might have reason to suspect that the manufacturer of the fake ID was a racist (and not very smart because the job was so poorly executed. See http://urbanlegends.about.com/od/barackobama/ss/Obama-Student-Id.htm). But you would reject the evidence of the ID because it was forged, not because it was being proffered by a suspected racist.

If there’s one thing I learned from 32 years as a trial lawyer, it’s the fact that valid evidence can be proffered by despicable people. When you reject a criticism out of hand by characterizing the person who voices it as a racist, you are not engaging in critical thinking. In that situation I’d say that one of two things is going on.  Either (1) you are not doing much thinking at all, or (2) You are hoping that your listeners are so gullible that you will be able to get them to reject the criticism without doing much thinking at all. I think the proper term is demagoguery.

We’ve come to a sorry state in this nation when the best we can do for civic discourse is to shout down a proposition, not by examining its validity, but by demonizing its proponent.

MIDLIFE CRISIS

I haven’t heard the term midlife crisis recently, but back when I was around 35-40, I had one. The conventional wisdom said that men in midlife crisis go out and buy a sports car. I went out and bought a squat rack, a bench, and several hundred pounds of weights.

I set up my gym in the garage and began an unstructured regimen of weight training. Whenever I get interested in a subject, I research it thoroughly, and it wasn't long before I was doing some research on the best way to train with weights. I learned that if you’re going to do bodybuilding exercises targeting specific muscles, you need to be prepared to stay in the gym for hours at a time. If you want to really get strong while expending the minimal amount of time, you want to do exercises that work a large number of muscle groups. For example, you could target your biceps by doing concentration curls with a dumbbell, but that’s all you’d be working. To work other upper body muscles, you’d need another exercise for each muscle. Too time consuming. If, however, you did bent rows with a barbell, you’d work your biceps, back, shoulders, and latissimus dorsi all at the same time. Basically what you wanted to do was an upper body push, an upper body pull, and a lower body exercise.

How many sets and reps do you want to do? Well, the more sets and the more reps you do, the more time you expend. If I remember correctly, I found an article titled “Perpetual Progression” in Iron Man magazine, and I adopted the regimen it suggested. When Peary Rader had the magazine, Iron Man  was an excellent source of good information. I express no opinion on its worth since Rader sold it. Following the routine described in "Perpetual Progression," I did three exercises: benchpress, bent row, and squat; and I began by doing five sets of five repetitions of each exercise. That’s it.

I later found a book by Randall Strossen entitled Super Squats, and changed my squat routine to one set of twenty reps, but the bent row and the benchpress I still did for five sets of five. I worked out three times a week, starting with easily manageable weights and increasing the weight at each succeeding session.

At first I increased the weight by five pounds per session. Eventually I hit a session where I couldn’t do the full five reps with the increased weight. Let’s say I did my five sets on Monday with 200 pounds, and on Wednesday, I couldn’t get 205. On Friday I’d drop back to 200, and on the following Monday I’d go up to 202.5 and begin increasing the weight by 2.5 pounds per session. Let’s say I went like that for a few sessions and hit another wall. The smallest plate that barbell manufacturers make weighs 1.25 pounds. How would I be able to cut the increments to a weight less than 2.5 pounds per session? Washers.

I found some washers which were big enough to fit onto an Olympic barbell, weighed them, and determined that they weighed approximately 1/6 of a pound apiece.   I bought a dozen and started going up in increments of 1/3 of a pound. I never hit a wall going up at 1/3 of a pound per session.

I did one more thing. I read an advertisement which said if you used super thick bars, you would not only increase your grip strength, you would become stronger all over. It should come as no surprise that the advertisement was for the sale of an ultra-expensive 2 inch thick bar. I won’t go into the details of how I improvised a PVC sleeve to increase the diameter of one of my barbells to 2 inches, but I did. I used the thick bar for benchpress and bent row, and I used a bent bar for squats. I got the bent bar second hand. Some gorilla had overloaded a cheap bar doing deadlifts or squats, and it looked something like an unstrung longbow. The bent bar curved quite comfortably across my shoulders and felt much better than a straight bar.  I got the idea of using a bent bar for squats from another advertisement for an ultra-expensive curved squat bar.

I got stronger and my muscles got bigger, but I never got to the point of looking like any kind of a bodybuilder. You’d never notice that I lifted weights at all unless you grabbed my arm. That was fine with me, as I said in an earlier post, I never thought of muscles as ornaments.

I had been training with weights for several years and had built a good bit of muscle when disaster struck. I was trying a murder case in a distant city and living out of a suitcase in a hotel. It wasn't a very complicated murder, so I was trying the case all by myself. One night after supper I decided to go to the county fair rather than going back to my hotel room. As I strolled through the midway, I noticed the old ring-the-bell attraction. There was a long line of muscular young men waiting to take their turn with the sledgehammer trying to ring the bell at the top of the pole. Nobody was even coming close.

I asked myself why not try it. I was a pretty good hand with an axe back in the day, and I felt plenty strong. I got in line, paid my dollar, hoisted the hammer, brought it down with all the force I could muster, and rung the bell. I handed the sledgehammer back to the carney and he told me I had to ring the bell twice to get a prize. I took the hammer and with another mighty swing, I rung the bell again. He gave me a huge stuffed pink elephant that I had no use whatsoever for. As I turned away to leave, I felt a twinge in my stomach.

When I got back to the room, I did an inspection and found a soft, squishy bulge in my stomach wall. No, it wasn't fat. It was a hernia. It took three operations over a period of about a year to finally get my stomach fixed, and by my calculation that pink elephant cost me several thousand dollars. I tried to go back to weight training after the last operation, but it just wasn't the same. I finally sold all my weights in 2005. Now my stomach is again soft and squishy, but not from a hernia.

A FOOTBALL STORY

I started playing football late. I was in the tenth grade when I first went out, and whenever I got into the game, I really didn't know what was going on about half the time. I played more my second year, but I still didn't fully grasp what was going on.

I did understand that if the guard took too wide a split, I could charge through the gap and nail the quarterback (I played defensive guard). I think we were playing Starke when I had probably the best series of downs of my entire football career. If I had understood what was going on, it would have been even better.

We punted to Starke, and a replacement guard came in. He took too wide a split, and I knew what to do. They snapped the ball, and I charged through and made the tackle. Second and 13. We lined up for another play, and danged if he didn't take his split too wide again. I charged through the gap and it was second and 16. On third down the guard took the same split, and I nailed the quarterback for another three yard loss.

It was fourth down, and I was pumped up. The guard took another wide split and I could scarce contain my glee. The center snapped the ball and I charged through again. I stopped dead in my tracks. Where was the quarterback? As I stood there frantically looking for the quarterback, I heard the thunk of a football being punted. "Oh, that's right, they punt on fourth down! I could have blocked the punt! What am I going to say when the coach asks me why I didn't even try to block the punt?"

Luckily, he didn't ask.

In that same game, I got to return a kickoff. The kicker shanked the ball and it came flying straight at me. As a lineman I had been repeatedly told that when I saw a loose ball, I was to yell "Ball!" And fall on the ball. So as the ball whizzed  toward me, I hollered "Ball!" When it hit me in the chest, I wrapped my arms around it and fell flat on my face on top of the ball.

We got the ball near midfield and were able to score, but I was a little apprehensive about what the coach would say to me about falling down instead of trying to run. As I trotted off the field, the coach  made for me and I prepared for a chewing out. "Great job, Dekle!" he said, "You did exactly what you should have!" He was certain I would have fumbled the ball if I had tried to run and gotten tackled. I think he was right.

MUSCULAR DEVELOPMENT

When I was a kid they said that someone with well-defined, muscular stomach muscles had "washboard abs." Now they call it a six pack. What does this say about our society? Probably nothing. Washboards are so antiquated that some  in the younger generation might not know what I'm talking about. I never had a washboard or a six pack. I suppose you could say I've always had a keg.

Here's something that might speak to current conditions. When I was a teenager and a young man, most people I knew worked out with weights to get stronger. Nowadays it seems that a significant percentage work out to look good. I've always considered muscles as tools, not ornaments. It's kind of like the difference between Fabio and Bill Kazmaier. You may swoon over Fabio's pretty muscles, but I think you'd want Bill Kazmaier to investigate that noise you heard downstairs at 2:00 AM.

 

What does it mean? It's a symptom of modern automation's making us less dependent on manual labor. Back in the day when strength was an asset, bulging muscles said that their possessor could work. Now they say that their possessor has sufficient leisure time to decorate his body with ornamental muscles. I, of course, exclude athletes and manual laborers when I say this.