Impeachment on Personnel Records

December 9, 2018

Q:        If you lost your body worn camera, you could get written up for that, right?

A:         Yeah, if you lost it, yes.  But in this situation, it was knocked off or fell off, whatever have you –

Q:        Right.

A:         I mean, it’s not exactly my fault in this situation but I still need to report the camera is no longer on my chest.

Q:        Right.  So you needed to explain to your official, to Sergeant Jones, because you were concerned about some type of disciplinary hearing against you, right?

A:         Yes.

Q:        Now, if you get too many disciplinary actions against you, that creates problems for your career, right?

A:         Yes, it would.

Q:        And you have already had a number of sustained findings for misconduct against you, isn’t that right?

A:         No, that’s not correct.

Q:        You have not had any sustained findings against you?

A:         Um, I haven’t –

PROSECUTOR:  Objection, Your Honor.  These are not relevant to the case, to the investigation or to this officer’s testimony’s today.

THE COURT:  Please approach.  Officer, you may step down.  You can sit in the jury box.  Counsel, where are you going with this?

DEFENSE ATTORNEY:  Well, Your Honor.  This goes to bias.  I asked him about prior sustained findings against him, findings that could affect his career, and he has denied having had any.  I have documents to contradict him.  He got up there on the stand and told Your Honor that he has never had a sustained finding against him.  I should have the opportunity to impeach him on that.

THE COURT:  I don’t think that’s quite what he said.  I think you asked him if he’s had a number of sustained findings against him, and he said no.

DEFENSE ATTORNEY: Okay.

THE COURT:  Overruled.  I’ll allow it.  Officer, thank you.  You can take the stand again.

Q:        You can answer the question.

A:         I am sorry.  What was the question?

Q:        Have you ever had any sustained findings against you, sir?

A:         Yes.  I’ve made a couple of mistakes in my police career.  Yes, that is correct.

Q:        And when you say couple, you mean two or three?

A:         Two.  I missed two hearings.  Two.

Q:        And these are the only findings, the only sustained findings against you?

A:         Sustained findings as far as what, my entire police career?  This is a very broad question that I haven’t –

Q:        Okay.  Let me be more specific then.

A:         Okay, please.

Q:        How about in 2015, a sustained finding for failing to get assistance from another officer when removing a prisoner from a vehicle?

A:         When was that?

Q:        July 12, 2015.

A:         Okay. Um, yes.  There was an occasion where, um, I had a defendant in handcuffs, was attempting to put him in a second transport vehicle –

Q:        I am not asking you to explain.

A:         Can I answer the question, please?

Q:        That wasn’t my question.  I asked you –

A:         I mean, we’ve opened, we’ve asked – the question’s been asked, may I answer please?

THE COURT:    Just, just, just yes or no.

A:         Okay, please ask your question one more time.

Q:        So you’ve had a sustained finding against you on July 12, 2015 for failing to get assistance from another member when placing or removing a prisoner from a vehicle?   I am reading this from your PPMS.

A:         That’s correct, yes.

Q:        So that is the extent of the sustained findings against you?

A:         Um, in – there was vehicle damage on one date that I failed to report during a vehicle inspection.  Um –

Q:        And that was in June, 2016?

A:         I guess.  That sounds about right.

Q:        Should I refresh your recollection?  Do you want to see this document?

A:        No, that’s right.

Q:        So a sustained finding in July 2015 for failing to get assistance from another officer when placing or removing a prisoner from a vehicle.  And then a sustained finding for failing to report damage to a vehicle.  That is two.  Is that the extent of it?

A:         Yeah, that’s correct.  Um, any other ones, I can’t remember off the top of my head.

Q:        So there are other ones?  So these aren’t important to you enough to remember them?

A:         Uh, I don’t remember any more.  I’ve never received suspension days or any sort of severe punishment for any of these in – for any of these so I don’t remember them.

Q:        Do you recall a sustained finding in May 2015 for failing to ensure that a crime scene officer reported to the scene to recover stolen property.  Do you recall that one?

A:         Yes, I do.  I am sorry, Your Honor.  I had forgotten that one.

Q:        How about a sustained finding in April 2014 for . . .

Lists

November 24, 2018

I sit across from a colleague in her office at the Public Defender Service in D.C.  A list of names from the jail is on her desk.  Some of the names have been crossed out.  Others have been highlighted or checked. 

“Names are naked things,” my father once wrote.  Lists are “an alphabet not intimate like words.”  Our flesh moves toward a permanence on a headstone with room for one more number: “in a list I see/already/how it comes.”

I used to represent 30 misdemeanor clients a day when I was a public defender in Philadelphia.  I met most of those people for the first time when I printed out the list that morning.  Stapling the pieces of paper together, I would stuff the list into my briefcase and head over to the Criminal Justice Center, perhaps stopping at the Dunkin’ Donuts on the way for coffee. 

Each of the people on the list had a life, a family, a story.  What I saw was a name, a date of birth, a police identification number and a list of criminal offenses. 

During my second year as a public defender, I developed a throbbing in my left ear.  It was like a bass guitar on high.  The hearing came and went.  Meniere’s syndrome was what the doctor told me, “syndrome” because they really had no idea what was going on.  The condition was often caused by stress. 

With that many clients, you can get tired of lists. 

Apart from a reference to our mortality, I am not quite sure what my father’s poem means.  All I can say is that, if there is a list at the jail with your name on it, let’s hope someone has that list on her desk to monitor.

Imperfect Impeachment and Kamala Harris

September 21, 2018

It is my Kamala Harris moment.

You recall her questioning of Brett Kavanaugh at his confirmation hearing.  She sets him up carefully: 

Q:  Judge, have you ever discussed Special Counsel Mueller or his investigation with anyone?

A:  Well, it was in the news every day.

Q:  Have you discussed it with anyone?

A:  With other judges, I know, uh –

Q:  — Have you discussed Mueller or his investigation with anyone at Kasowitz, Benson & Torres, a law firm founded by Marc Kasowitz, President Trump’s personal lawyer?

A:  Uh –

Q:  — Be sure about your answer, sir.

A:  Um, well, I am not remembering but if you have something, you want –

And so on.  It is as if this former prosecutor has something on him. Then she fails to deliver the goods. 

I had a similar situation in a domestic violence bench trial the other day.  The complainant had sent my client multiple text messages after my client’s arrest.  The text messages would have indicated bias.  But the text messages had been lost along with the phone.  

Like Kamala Harris, I decide to go on a fishing expedition.  

I do a great job of setting up the witness.  You have a cell phone?  Yes. The cell phone number is 202-555-5555? Yes.  You use the cell phone to text people?  Yes.  You have used the cell phone to text my client?  Yes.  You have communicated with my client since his arrest in this matter?  Yes. 

I then make a big show of looking through my file for some papers.  I want him to believe I have his text messages in front of me now. 

On August 24, you texted my client that you wanted to see him?  The complainant looks confused.  I think I have him.  Then: No, I didn’t.

You texted my client you wouldn’t come to court if he got back together with you?  No.

And so on.  I try to fool him.   He calls my bluff.

The judge is waiting for me to complete the impeachment.  I never do.  The judge ultimately acquits my client, for other reasons, and that is good.  But not before the judge chastises me on the incomplete impeachment.   Imperfect impeachment is legally useless, he tells the courtroom.  He is really speaking to Kamala Harris and me.  

The Rule on Witnesses at a D.C. DMV Hearing

August 29, 2018

DEFENSE:  Before I begin my argument, I’d like to invoke the rule on witnesses.

HEARING EXAMINER: The what?  The rule on witnesses?

DEFENSE:  Yes, sir.   The sergeant has concluded his testimony.  He will be a witness against my client at trial. I would ask that the sergeant be excused while I make my argument.  

HEARING EXAMINER: Something could said that he needs to respond to.

DEFENSE:  In that case, we could call him into the courtroom, the hearing room, at that time.

HEARING EXAMINER: I am not going to excuse him for that.  Like I said, part of your argument, I don’t know what your argument is, but he should be here to hear and then he can respond.  I am not going to excuse him because of the D.C. Superior Court trial that is coming up.

DEFENSE:  Well, I would argue that —

HEARING EXAMINER: — Counsel, no one has ever asked me this before.  This is a DMV hearing, not a trial. 

DEFENSE:  I am proud to be the first then. 

HEARING EXAMINER: For this proceeding, the government will remain for the whole proceeding.  I will not excuse him.  Something you should say, he should be able to respond to it.

DEFENSE:  Mr. Examiner, the sergeant is not a party to this case.  He is a witness.  Once his testimony has been given, there is no reason to have him in the room.

HEARING EXAMINER: Counsel.  I have made my decision.  I ask you to proceed with your argument.

The Reconstituted CJA Panel in D.C.

May 29, 2018

 Every four years, D.C. Superior Court re-establishes the panel of criminal defense lawyers who are eligible to accept court appointments.  The first re-establishment occurred in 2010 and the second in 2014. Chief Judge Robert Morin just issued his most recent order re-establishing the panel for 2018-2021.  Unlike the 2014 process in which the Court reduced the number of eligible attorneys from 309 to 220, this year’s re-establishment maintains the current level at 213 (177 on the full panel and 36 on the “provisional” panel for new attorneys).  

Listed below are (1) lawyers on the full panel, (2) lawyers on the provisional panel, and (3) judges who participated on the selection panel.

Full Panel Members

Abou, Sabitiyu
Ahmed, Atiq
Ain, Andrew
Akintoye, Hannah
Akulian, David
Ali, Khadijah
Allburn, Megan
Allen, Charles
Amato, Elita
Antonelli, Andrea
Archer, Colleen
Auerbach, Kenneth
Baer, Mitchell
Baldwin, Todd
Ballester, Betty
Baron, Gregg
Beasley, Donna
Bethel, Thecla
Blackledge, Morgan
Block, Rebecca
Bogash, Samuel
Bookhard, Bryan
Borecki, Susan
Brebbia, Sean
Brennwald, Stephen
Brown, Bryan
Bruckheim, Michael
Burrell, Brandon
Cade, Anthony
Caleb, Joseph
Catacalos, Damon
Clark, Jason
Clements, Noah
Clennon, Cary
Cohen, Brett
Colt, James
Cooper, Bruce
Cooper, Peter
Copeland, Gregory
Cumberbatch, David
Dansie, Lucas
D’Antuono, Frances
Dorsey, Daniel
Downs, April
Dunham, Colin
Dworsky, Donald
Ellis, Susan
Engle, Thomas
Escoto, Henry
Evans, Ferguson
Falodun, Oluwole
Farrelly, Sean
Franklin, Gretchen
Gaind, Edward
Gilmore, Jack
Goldstone, Mark
Gowen, Christopher
Hairston, Russell
Hakimzadeh, Kiumars
Haldane, Marie
Harden, Brandi
Harn, Daniel
Harvey, John
Hayat, Fareed
Healy, Thomas
Hertz, Matthew
Heslep, Thomas
Holliday, Richard
Holt, Veronice
Houston, Linda
Hunter, Adam
Irving, Kevin
Iverson, Frederick
Jacques, Tammy
Jean-Baptiste, Chantal
Jenkins, Theresa
Johnson, Stephanie
Johnson, Stuart
Jones, Dorsey
Joseph, Edward
Judkins, Quo
Kalafat, Jason
Kamara, Louis
Key, Thomas
Khan, Azhar
Khater, Tony
Kiersch, Steven
King, Marnitta
Kleiman, Teresa
Koehler, Jamison
Kopecki, Sara
Kovler, Daniel
Kunnirickal, Isaac
Lester, Thomas
Machado, John
Madden, Michael
Maddox-Levine, T. Gail
Malech, Lloyd
McCoy, Joseph
McDonald, Randy
McEachern, Howard
McGonigal, Kyle
McGough, Kristin
Miller, Cedric
Minor, Kevin
Molina, Joseph
Moore, Craig
Mosley, Kevin
Murdter, Charles
Murphy, Sean
Mutimer, Christopher
Mykytiuk, Jay
Neptune, Kelli
Nicholas, Lauckland
O’Bryant, Adgie
Ogilvie, Steven
Ogolo, Chidi
Okezie, Justin
Oliver, Kevin
Patel, Sweta
Perrone, June
Phillips, Kimberly
Pinckney, Heather
Polin, Steven
Powell, Clarence
Puttagunta, Rupa
Queen, Elliott
Quillin, Daniel
Ramsay, Angela
Redmon-Reid, Chantaye
Regunathan, Ravi
Ricard, Craig
Richter, David
Riddell, Steven
Rist, Matthew
Robertson, Kevin
Robinson, Ralph
Rollins, Mark
Rosendorf, Martin
Russell, Stephen
Sample, John
Sapirstein, Lisbeth
Scanlon, Anna
Schrager, Seth
Schultz, Corinne
Scialpi, Errin
Serrano, Miguel
Shaner, Heather
Sherrod-Ali, Gilda
Sidbury, David
Simmons, Sellano
Slaight, JoAnne
Smith, Anthony
Smith, Jerry
Smith, Lee
Stevens, Gemma Michelle
Thomas, Alvin
Thompson, Everald
Towe, Reginald
Vaughan, Courtney
Vega, David
Wall, Charles
Weathers, Sharon
Weletz-Swanson, Carrie
Weller, Elizabeth
Williams, Ian
Williams, Jacqueline
Williams, James
Williams, Kanita
Williams, McGennis
Willmott, Jonathan
Winograd, Jesse
Yallery-Arthur, Winston
Zahara, Nicola
Zeigler, James
Ziadie, Lola
Zucker, Jonathan

Provisional Panel Members

Aberra, Ephraim
Amissah, Albert
Barfield, Michael
Bississo, Omar
Dimillo, Anthony
Dozier, Jalil
Eaton, Terry
Fay, Joseph
Fry, Linden
Harris, Adam
Harrison, Claudine
Jones, Raymond
Kalsy, Kavita
Kassees, Kevin
Kozik, Matthew
Langello, Chris
Lanyi, Jonathan
Lipper, Gregory
Lockard, Michelle
Logerfo, Stephen
Margulies, Howard
Mason, Montez
McCoy, Rachel
Messineo, Carl
Mokodean, Joseph
Moore, Anne-Marie
Page, Derrick
Parke, Evan
Shefferman, Brian
Swaney, Julie
Thomas, Christina
Viviani, Anthony
Vogel, Rebecca
West, Kira
Wooten, David
Works, Cynthia

Committee on Criminal Justice Act Panel Attorneys

Judge Juliet McKenna, Deputy Presiding Judge of the Criminal Division, Co-Chair
Judge Peter Krauthamer, Deputy Presiding Judge of the Family Division, Co-Chair
Judge Jennifer Anderson
Judge Ronna Beck
Judge Steven Berk
Judge Rainey Brandt
Judge Danya Dayson
Judge Marisa Demeo
Judge Todd Edelman
Judge Wendell P. Gardner
Judge Kimberley Knowles
Judge Adrienne Noti
Judge Maurice Ross
Judge Michael Ryan
Judge Yvonne Williams

Your Desk, By The Window

May 28, 2018

“I am in.” 

This is what my niece Meg says as she forces open a window on the first-floor and crawls into the building.  She comes around to the front door to let the rest of us in.  I am horrified.  I am also impressed.   I follow my sister and daughter into the building to join her.

We have just broken into Bartlett Hall at the University of Massachusetts.  For 60 years my father had his office here, first as a member of the English Department, then in retirement.   The building is now empty.  They are about to tear it down. 

* * * * *

According to Google Maps, it is 1.1 miles from Bartlett Hall to my parents’ house on Hills Road. My father used to walk this every day.

There must have been some days in which he would have been more comfortable staying at home, in his bathrobe and with a cup of coffee.  The New England winters can be brutal, and his home study was cozy.  With its dark wooden bookshelves lining the back wall, Sylvia Plath once compared the room to the inside of a walnut.   But my mother liked to have my father out of the house at times, and he enjoyed the walk, even on the worst days. 

A former student told my mother of driving up Clark Hill Road one snowy day to find my father lying by the side of the road. 

Mr. Koehler, Mr. Koehler, the student said, getting out of his car to help my father to my feet. Can I give you a ride?

My father thanked him but declined the offer.  It really is a nice day for a walk, he said. 

* * * * *

I don’t know how good a teacher my father was (I assume he was better with graduate students) but I do know the students liked and respected him. 

We used to joke that you could go anywhere in the world only to have a student seek him out with a “Mr. Koehler, Mr. Koehler!”

Backstage at the Lollapalooza in 1995, my father is the only person in the entire stadium who is over 60 years old.  Apart from the bleached blonde bassist from the band, he is also the only person in a coat and tie.  The “Mr. Koehler, Mr. Koehler” person in this case is a roadie who accosts my father as we approach the stage:  Don’t you remember me from freshman English?  You gave me a B when I deserved an A.   My father never did believe in grade inflation. 

* * * * *

Once inside of Bartlett, the four of us walk up to the fourth floor where my father had his office.  The small offices, cinderblock walls and metal office doors are familiar to us, but when we arrive on the hallway we struggle to remember which office was his. 

My sister Maggie goes with her gut:  This one feels right, she says, and we step into one of the cramped offices.  The office is mostly empty now, with a metal table and filing cabinet pushed off to the side.

* * * * *

Apparently, in going through his things a couple of years ago, we missed a box of his personal papers.  Someone bought the box at an auction and contacted me.  I thought the guy was going to hit me up for some money.  As it was, I could barely talk him into accepting reimbursement for the postage.  The papers seemed important to me, he told me.  I thought you might appreciate them.    

It was fun to find, along with letters and old photos, early drafts of some of our favorite poems by my father, poems that my siblings and I can recite from memory.   We have the draft, for example, in which he scratches out “gold” and writes in “bronze” in “Aging Bronze.”   “Snow” was originally entitled “Fourteen Inches.”

My father hated adverbs.   Adjectives too, for that matter.  Contrary to what many creative writing teachers might tell you, he also preferred the general to the specific.  He would say “stomach,” not “belly,” even if the latter was far more descriptive.  And he always took out any suggestion of sentimentality.  

His only indulgence, as far as I can tell, is a poem he wrote after his father’s death, inspired by his experience cleaning out his own father’s study.  In “Your Desk, By the Window,” he writes of his inability to “think, or take, or touch things”:   “In the middle drawer/these envelopes, unused; letters/you did not write./Their whiteness is/the distance now between us;/differences;/ so many ways to fail.”

* * * * *

Meg does not share her mother’s certainty as to which of the offices belonged to her grandfather. So she pulls out her smart phone and produces a photograph.  It is of my father actually sitting in his office.  He is at his desk, by the window.

We search the photograph for clues.  We check the wall for markings consistent with the wall hangings captured in the photograph. There are also plants on the windowsill behind him, spindly-looking things because, to be honest, my father never had much of a green thumb. We check the wood for signs of water damage.

One of the things I learned from my father is an appreciation for the seemingly insignificant things in life.  It was not just the joy he took in finding the perfect word or turn of phrase for a poem.  He could spend days doing that.  It was tending to his yard, where the grass never seemed to come in just right, or the vegetable garden, where he planted an extra row every year, this one for the bunnies, he would say.  It was stooping over to pick up a penny on the street.  It was a stupid joke, with a corny punch-line, that would amuse him for days and that he would tell again and again.  It was the pleasure he derived from the snowdrops that pushed up through the earth on our front lawn every spring.

Even with Meg’s photographic evidence, we are still unsure.  Maggie who, along with my brother, cleaned out the office after my father died, sticks with her gut.  Meg and my daughter Laura look for the positioning of the tree limbs visible outside the window in the photograph.  We realize his office could have been a couple of doors down. 

* * * * *

Although my father never complained, you have to wonder if he was ever disappointed with the way his career turned out.  Without an interest in departmental politics, he was never selected chairman of the English Department.  Nor was his poetry ever recognized in quite the way he might have hoped.

Emma – another of my nieces — went through William Carlos Williams’ papers while writing her senior thesis at Dartmouth.  There was a file with my father’s name on it.  Emma also discovered a letter Williams had written encouraging the poetry editor at a major publication to look at my father’s poetry.  My father was, Williams wrote, “a man of 40 who has just had some poems accepted by Poetry.  I was amazed by the excellence of his work.  Bear the name in mind and if you can place him among your acceptances I’m sure you won’t regret it.”  The letter was dated March 7, 1957.

Years later, going through my father’s things, we came across one of my father’s rejection slips, this one from the Atlantic Monthly.  The year was 1938.  “Not quite right for us,” the note said, “but please try us again.” We joke that 70 years is not too soon to give it another shot. 

So many ways to fail.

* * * * *

We decide it was the first office, the one that felt right to Maggie, and the certainty makes us all feel better.  It was this one, we say.  It was definitely this one.

We photograph ourselves at the spot where the desk would have been, first Meg and Laura, then Maggie and me.   We can feel his presence in the room even if we are wrong, even if we are standing in someone else’s office. Because this is a dilemma he would have appreciated. This is a dilemma that would have inspired one of his poems.  

My father had a problem with goodbyes.  Whenever we said goodbye, he wrote, it was like this, and he never needed to explain what this was.  He thinks of tail-lights, the car braking at a curve, and the phone more quiet now.  Maybe this explains what my nephews and nieces call the “Koehler goodbye,” an extravagant spectacle in which everyone comes out onto the street to wave goodbye.  My brother could have some fun with this when he was the honoree.  He would veer off course or stop the car at the curb to prolong things.

Our break-in today, I guess, must be our four-person “Koehler goodbye” to Bartlett Hall. 

Meg takes the small rectangular clasp from the front of the door.  She, the middle cousin, understands the significance of these things.  There is, of course, always the chance that this piece of metal once held an index card with my father’s name on it, identifying the office as belonging to him.  We will assume it did.  I add theft to my list of criminal offenses we committed today, but it doesn’t really matter.  The building is about to be torn down.  No one will miss what we have reclaimed.

“Bye Dad,” my sister says, with as much finality as she can muster.  Meg has her souvenir.  We shut off the lights and close the door.  We head back toward the exit.

“He does not see the bend, behind, that will take him from view”

January 26, 2018

“Davon” is dead. This is what his former social worker tells me. I don’t ask for details. That would be rude. Besides, I am pretty sure I already know the answer.

Davon was 13 years old when I first represented him. He and his mother, a woman who referred to herself as “Danger” on her voice mail, moved across town to take advantage of a better housing deal.   Davon was bored at the new location, and he kept returning to the old neighborhood to hang with friends. First he was warned: You can’t loiter at a public housing complex. Then he was barred. Then he was arrested for unlawful entry.

At 15 years old, Davon picked up a “purse-snatch robbery.” Except it was a cell phone. Using GPS, police tracked the phone to Davon’s new home, to his school, and, yes, back to his old neighborhood where he was again arrested for unlawful entry.

At 16, Davon was arrested for armed robbery. Reading the allegations, I had a pretty good idea then what might lie in his future.

If this were a Disney movie, Davon and I would have overcome age, racial, and socio-economic differences to forge a bond between us. That proud and dignified little boy would have let down his guard. We would have become, if not friends, well, at least closer. He would have trusted me.

This is not a Disney movie. That impassive face with the dull eyes never once brightened to see me. He never confided in me, even when his defense depended on it. When I visited him at the Youth Services Center or at a group home, he would sit as I talked. Or we would look across the table at each other in silence.  His mind was already on other things – what was going on at his unit, perhaps what was on the menu for lunch.

Once, if only for just a moment, I saw a different side of Davon. He had been placed at the Kool House, a juvenile facility in Virginia with a good reputation, and his progress reports were glowing. He got along with his probation officer. More importantly, his father was back in his life.

We were at a commitment hearing to review his progress. I was waiting outside the courtroom with his mother when I saw his father and him walking down the hallway toward us. His gait was relaxed. The two of them leaned into each other as they talked about something. And, for the only time ever, I saw him smile. It was the easy, unguarded smile of a little boy. For that moment anyway, I thought he might be okay.

I don’t represent juveniles anymore, but I occasionally run into former clients in adult court. They call out to me in the courtroom or hallway – “Mr. Koehler, Mr. Koehler!” — and I am always pleased that, after a moment’s hesitation, I can remember their names. Mr. Smith! How are you? How is your mother?

Sometimes they are there supporting a friend. Sometimes they tell me they are there supporting a friend when in fact the docket shows they face their own charges. In either case, I pretend to believe them. It is a fiction that works for all of us.

We catch up. We reminisce. And the moment passes. We shake each other’s hand or fist bump one last time. Then, smiles fading, we turn back to the day. I follow their cases through the system.   Until I don’t anymore.

More like this:

Juvenile Court Forever

He is 12 Years Old

“No Questions, Your Honor”

January 24, 2018

When it comes to cross-examination, I consider myself a minimalist. I figure out what I need from the witness. I tell my version of the story. And I ask the witness to agree with me.

Some lawyers have the witness repeat the testimony from direct. This is inconceivable to me. It was bad enough to hear the bad facts the first time. Why would you ever want to put them back in front of the judge or jury?

Some people repeat the testimony from direct while lacing their questions with skepticism or sarcasm. I think in particular of Cristina Gutierrez.  Gutierrez was Adnan Syed’s lawyer in the murder case made famous by the Serial podcast. My colleague Howard Margulies assures me that, back when he shared an office with Gutierrez many years ago as a public defender, she was a first-rate lawyer. But that was before she was stricken with disease and debt. Every question she asked of the government’s witnesses in Syed’s case was dripping with sarcasm.

When warranted, skepticism or sarcasm can be effective but even then, only in small doses. Tone does not convey on the record. This is important for appeals. More importantly, it is rarely effective. Like me, many people are contrarian. We don’t like to be told how we should be reacting. If you tell me I should be skeptical, even outraged, I will look for a reason to prove you wrong: What are you talking about? I don’t think the witness’ testimony is that far-fetched.

My colleague here in D.C., Bryan Brown, does the whole Peter Falk/Colombo thing: “Officer,” he says. “Let me see if I understand you correctly.” He gives you the impression that, of all the people in the courtroom, he is the person who most wants to believe the witness. We are right beside him, rooting for the witness. Like him, we are repeatedly surprised by – and disappointed with — the witness’ vague or contradictory answers.

The final risk of trying to do too much with cross-examination is that sometimes you can end up making the government’s case for it.   I have learned this from bitter experience. The burden is on the government to prove its case beyond a reasonable doubt. Don’t fill in holes for the government. Sometimes the best thing – also often one of the most satisfying things – is to say “no questions, your Honor.”

I didn’t say, “Simon says”

July 24, 2017

Q:            Officer. You testified on direct that my client was talkative when you first approached his car.

A:            Yes. As I began speaking with him, he was repeating himself quite a bit, wasn’t really answering my questions, just kept repeating himself. He kept talking and talking and just wasn’t really cooperative at the time that I walked up to the vehicle.

Q:            He was expressing concern about his girlfriend, right?

A:            While he was in the car, he was just, he was very talkative as I believe I said, he kept repeating himself. His speech was slurred. He wasn’t directly answering questions. He was uncooperative.

Q:            He told you he was looking for his girlfriend —

A:            — he kept saying the same thing over and over, he kept repeating himself.

Q:            You have just repeated yourself a number of times, Officer. Are you impaired today as you sit on the witness stand?

THE PROSECUTOR: Objection. Argumentative.

THE COURT: Sustained. Next question? . . .

An Ethical Prosecutor Confronts Her Own Witness

May 10, 2017

BY DEFENSE COUNSEL ON CROSS

Q: Ms. Smith, do you have an email account?

A: Do I have an e-mail account?

Q: Yes.

A: I do.

Q: Is it a Yahoo account?

A: No.

Q: What is your e-mail?

A: It’s –

Q: Actually, let me ask you this way. Are you familiar with an e-mail account Tamara1540@yahoo.com?

A: I am not familiar with that account.

THE COURT: I’m sorry. Counsel, could you say it again or spell it out so that we are clear about the spelling of it.

DEFENSE COUNSEL: Absolutely.  It’s the email account T-A-M-A-R-A 1540 at Yahoo.com.

Q: That doesn’t ring a bell with you?

A: No.

Q: You have never used that email account?

A: No . . .

PROSECUTOR ON RE-DIRECT

Q: Okay. Ms. Smith, you do have a Yahoo e-mail account, right?

DEFENSE COUNSEL: Objection. Leading.

PROSECUTOR: May I approach with counsel, Your Honor?

THE COURT: Sure. (To witness). If you would step down to one of those jury chairs again, if you would. Thank you.

THE COURT: Okay.

DEFENSE COUNSEL: Two things. First, it’s leading. This is the government’s witness, not mine. Second, she never acknowledged that she had a Yahoo account.

PROSECUTOR: And, Your Honor, I am attempting to impeach the witness. I do have – I would just like to ask her if that is her e-mail account because I have communicated with her through that e-mail account, so if I could just be allowed to ask her again to give the email account with the numbers and ask her if she uses that account. It’s leading, and it would be my intent to impeach my own witness, and it’s just my responsibility as candor to the Court.

THE COURT: Okay.

(Open court.)

THE COURT: Okay. You can come back up to the chair, please. Thank you.

BY THE PROSECUTOR:

Q: Ms. Smith, do you use a Yahoo account?

A: No.

Q: Have you ever used a Yahoo account T-A-M-A-R-A 1504 at Yahoo.com?

A: No.

Q: Have you ever communicated with me through the Yahoo account?

A: I used my school account.

Q: Okay. If I showed you something –

PROSECUTOR: Showing defense counsel what’s been marked for identification purposes as Government’s Exhibit 3. May I approach, Your Honor?

THE COURT: Yes.

BY THE PROSECUTOR:

Q: I’m showing you what’s been marked as Government’s Exhibit 3. Do you recognize this at all?

A: Yes, I recognize it from my I-Phone, yes.

Q: Okay. What is it?

A: It’s a subpoena.

Q: What is this piece of paper right here?

A: It’s a piece of paper from you.

Q: Is it an e-mail?

A: Yes.

Q: Did you respond to that e-mail?

A: I did.

Q: And from what e-mail account did you respond?

A: Well, it says the – it says Yahoo.

Q: Does it say T-A-M-A-R-A 1450 at Yahoo.com?

A: Yes.

Q: Okay. Do you use that e-mail?

A: Yes. . .