Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 1
Chair’s Report to Members
By RonaldC. Smith
Ask Not What Your Mistakes Can Do for You . . .
Y ears ago—long before AARP began flooding my mailbox with insistent demands that I join up—I asked one of Chicago’s top trial lawyers how he had learned to try cases. A graduate of a prestigious law school in the early 1950s, he was like most of us who went to law school before, say, 1980—he had received no trial skills training before entering the practice of law. His training? He told me that he went to work for a high-volume law firm. He took everything to trial. Everything.
He learned from his mistakes.
Years later I attended a three-day NITA advocacy teacher training program. One memorable tip was don’t tell courtroom "war stories" about your victories. Do tell your students about the times you really screwed up! Have the students learn from your mistakes.
Inspired by this precept, I asked a few practitioners of the art of criminal trial advocacy to share their best (or worst) stories. In case you are wondering where this is going, it is my way of telling you about some important law school programs that are sponsored by the Criminal Justice Section.
Here are four stories.
Twenty-five years ago a colleague (who does not want the acclaim that goes with my mentioning his name) began his career as a staff lawyer in the federal defender program. One day he was handed a case in which three government agents had witnessed the accused sign his full confession. The accused agreed that he had voluntarily signed the confession, but said he was not going to plead guilty because he had not committed the crime. He also was not too bright.
Efforts to keep the confession out of evidence failed. Efforts to impeach the witnesses seemed futile. When the defendant took the stand, he denied committing the crime. Asked why he signed a confession without (as he claimed) even reading it, he said "because the FBI put it in front of me. They are the FBI!"
Having wrung what he could out of his client, the attorney asked what he thought was the concluding question.
"So, as you sit there, are you guilty or not guilty?"
"Guilty!" came the response.
Stopped in his tracks, the attorney stared at the witness for a moment, then asked the forbidden Why Question.
"Why" he said, desperately, "why do you say that?"
"Well," the defendant said, seeking to understand why he had said that, "if they got that confession, doesn’t that mean I’m gonna be found guilty?"
The jury returned a verdict of not guilty. In an instant they had seen how dense and gullible he was. So much for the golden rule of cross-examination.
What did the lawyer learn? Ask a Why Question if you absolutely have to.
Perhaps it is a matter of knowing what the witness will say in the first place.
I was in the U.S. Navy when I tried my first case. I had no legal background, but worked with "cocounsel" who had some training at the Naval Justice School. We represented a wayward sailor who concededly had been AWOL (absent without leave) for 29 days—one day short of his being declared a deserter, a much more serious matter. His defense, for what it was worth, was that he needed to drink away his sorrow after his fiancé broke off their engagement. He rented a room for a month and went on a bender. His landlady testified that, although he had been constantly drunk, "he was a very nice young man the whole time." We subpoenaed the former girlfriend who, chewing gum as she testified, told the several young officers on the court martial panel that she had promised to marry him when he returned from his long cruise. Yes, she had accepted the love letters and gifts he sent from the occasional port the ship had visited. No, she had not alerted him that she had changed her mind about marrying him. Yes, she told him the bad news on the day he returned from five months at sea.
Finally, we put the defendant on the stand. I brought out his sad story of great love followed by dashed hopes. I looked at the members of the jury. I thought they looked pretty sympathetic. Who hasn’t felt the pain of unrequited love? They were going to find him guilty, but they would mete out minimal punishment. I had not only survived my first trial. I had performed well. Hey, I was born to do this stuff.
"Mr. Smith," the accused asked from the witness stand, "Can I say just one more thing?"
And do you know what I did? I said yes!
He spoke for only a minute. He blamed everything on Mr. Witherspoon, who was senior to all of us.
They gave him the maximum sentence.
Albert Krieger tells of the time he was "stringing" out an impeachment of a police witness. Krieger hammered away at a flaw in the arresting officers’ stories.
In his own words:
"So, in a prosecution for possession of a gun by a previously convicted felon, a DEA agent on interview shortly before taking the witness stand told me that he had not seen the gun in the room where it was allegedly found by his partner. It was a clear contradiction and the only resemblance to a defense that was available.
"On cross, the agent responded consistently at first with our interview. To drive the point home, to underscore all that I had going for the defendant, I came back to the point and prodded the agent with:
Q. Nobody said, "Hey, look what I found!"
Q. Nobody said, "Bingo, look here!"
A. (!) That reminds me; something like that happened."
To this day, Krieger is convinced that he had asked one question too many, and had provided the witness with the chance to sabotage the impeachment.
Moderator: "What is one question too many?"
Chorus: "We can’t tell you, but you will know it when you ask it."
Even then, as Terry MacCarthy says when he holds his tent meetings on cross-examination, no matter how badly things go, "Look good!"
Chorus: "Look good!"
Terry acts as a judge or evaluator each year in the Criminal Justice Section’s National Criminal Justice Trial Advocacy Competition. His exhortations are always lively and instructive. The law students sometimes are treated to a nice debate between MacCarthy and Krieger (and the other evaluator-jurors, too). But MacCarthy often trumps with his mantra, "Look good!"
Well, sometimes you just can’t look good. You’ve already dug too deep a hole for yourself.
The late Liam Hamilton, Chief Justice of Ireland’s Supreme Court, loved to tell the story of the pompous barrister who set out to prove that the deceased (call him James O’Brien) was incompetent at the time he signed his will. Waving the will in front of the witness who had notarized it, the barrister asked:
"About the time he signed this document, isn’t it true that the decedent and testator, James O’Brien, was given to soliloquizing?"
The witness stared back, perplexed. Hamilton, then a trial judge hearing this case in a small town in Ireland, advised the barrister to rephrase the question.
The barrister offered: "Didn’t James O’Brien, about the time he signed this will, speak in soliloquies?"
Again, no response.
Judge Hamilton gently instructed the barrister to put the question into plain English.
"Isn’t it true that Jimmie O’Brien used to talk to himself when he was alone?" came the question.
The witness lit up with understanding. "Oh," he replied. "To tell you the truth, I was never with him when he was alone."
Learning from our mistakes is good, learning from other people’s mistakes is better, and teaching from our mistakes is wonderful. If the mistakes are funny, all the better. Plato reportedly said that we need to understand what is funny so that we can understand what is serious. I suggest that the place for us to begin is in law school, where experienced trial attorneys can shape the habits and attitudes of the upcoming crop of lawyers.
As we know, it was not always that way. In our lifetimes, we have seen the law school curriculum accept and adopt trial skills training. Those of us receiving those AARP membership materials have seen this shift during our legal careers.
With the emergence in the 1970s of the National Institute of Trial Advocacy’s programs for training lawyers and, later, teachers of trial skills, and (spurred by some chance remarks by then-Chief Justice Warren Burger) the adoption of realistic trial advocacy training methods and materials in many American law schools, by the 1980s law schools began to provide NITA-style advocacy courses to their students.
Contemporaneously, the Texas Young Lawyers’ trial advocacy competition expanded to become a national program, sponsored in part by some ABA sections. ATLA soon followed with a similar competition.
In 1992, the report of the ABA’s Task Force on Law Schools and the Profession (the so-called McCrate Report) maintained that law schools must teach skills with theory and doctrine. The McCrate Report set forth a template for law schools and the practicing bar to follow in bringing the lawyering process into the curriculum of law schools. Soon, virtually every law school provided (and many required) trial advocacy courses.
By then, the Criminal Justice Section and The John Marshall Law School had inaugurated the National Criminal Justice Trial Advocacy Competition. Each year since 1991, the competition has received heady acclaim for the excellence of its program. Almost 1,000 students have participated. They have come from over 100 different U.S. law schools, as well as from Ireland (Trinity College School of Law and University College of Dublin School of Law) and New Zealand (University of Canterbury School of Law). Hundreds of attorneys and judges, mostly from the Chicago area, contribute their time and talent to evaluating these student competitors. Each year many prominent members of the Criminal Justice Section travel to Chicago to assist.
In 1998, the competition won the Section Officers Conference "Best of the Sections" Award.
As good as the other trial competitions may be, the consensus among the nation’s law school trial advocacy advisors is that the Criminal Justice Section’s program is, by far, the best. Indeed, each year the competition can only accommodate about one-third of the applicants seeking an invitation to participate.
Recognizing the Section’s commitment to encouraging student interest in criminal justice, the Section also sponsors the annual William W. Greenhalgh student writing competition, which encourages law students to think and write about current concerns in the area of the Fourth Amendment. The Criminal Justice Section now sponsors another criminal trial competition (with Quinnipiac Law School, under Professor Elizabeth Marsh’s direction), the North East Regional Criminal Trial Advocacy Competition.
At the April meeting in New Orleans, I am asking the Council of the Criminal Justice Section for advice on how to implicate more law students in the work of the Section. We already have a student liaison on the Council. Perhaps we should expand the opportunities for students to participate in the work of the committees. Perhaps other law schools are willing to cosponsor criminal trial advocacy competitions.
Professor Christopher Slobogin, chair of the Section’s Ad Hoc Committee on Law School Outreach, is developing a proposal for the Section’s Council to consider: to create a law student research program in which students—under the supervision of law school faculty members—would research and prepare publishable papers on current criminal law issues.
To complete the title of this report: " . . . Ask What Your Mistakes Can Do for Others!"
The Criminal Justice Section does remarkable work. Look at the typical agenda of the ABA’s House of Delegates to see the end product of the efforts of Criminal Justice Section committees and members. The Section has so much to give to those law students and novice lawyers who want to participate in the criminal justice system, all we need do is find the means of making this possible. Consider all the mistakes (and victories) we have experienced. We should share them. I like to think that if we succeed, someday the students and newcomers will be better lawyers than we are. Nice legacy.
Ronald C. Smith is the chair of the Criminal Justice Section and a law professor at The John Marshall Law School in Chicago, Illinois.