I hate redirect. Any form of rebuttal can be deadly, but redirect under the federal rules is pure torture. A brilliant cross-examination can be entirely unwound with an effective redirect, especially when denied the chance to respond.
I have been following the trial of Don Blankenship, one of the so-called kings of coal, in West Virginia. His lawyer, Bill Taylor, conducted a five-day devastating cross-examination of the government’s chief cooperator. It had some real blockbuster results. However, after 5 days of cross, just as winter follows the fall, came the inevitable redirect.
My title comes from a paper, Fn1, presented by Albert Krieger in a seminar called “Advanced Cross- Examination Tactics.” It was my introduction to the master cross-examiner. I had just left the public defender’s office and thought I was more than adequate to conduct a bruising cross-examination, but he opened my eyes to a new universe of possibilities. Krieger was head and shoulders above everyone else. With his shaved head, unusual at the time, and his booming voice, he would intimidate government informers from half a courtroom away.
I thought of Albert while reading about the trial of Blankenship, the former Massey Energy CEO. Blankenship is charged with lying to investors and securities officials about Massey’s safety record, and conspiring to violate federal mine safety laws. The unstated motive for the prosecution is that his corporate policies led to the Upper Big Branch mine explosion that killed 29 coal miners more than five years ago in Raleigh County, W.Va. The government believes that Blankenship’s leadership and production demands trumped safety at Massey Energy which owned the mine where a fireball of methane gas and coal dust exploded underground.
Fn 1. Cross-Examination and Prior Inconsistent Statements or Try To Leave Before Redirect.
Taylor laid utter waste to the government’s case during a five-day cross-examination of cooperator-in-chief Timothy Blanchard. Blanchard ran the daily operation of the Upper Big Branch mine and he received immunity for his testimony “against” Blankenship. I put “against” in quotation marks because during cross-examination it hardly seemed adverse. Here are some of the highlights:
In conflict with his direct examination, Blanchard testified he had not committed any crimes while working as the president of Performance Coal and did not conspire with nor had any unwritten agreement or understanding with Blankenship to violate safety laws.
He testified that he believed Blankenship cared about safety at the mine, and that Blankenship never specifically directed anyone to violate safety laws.
He and Blankenship did not conspire to impede the Mine Safety and Health Administration.
Taylor asked about his plea agreement: “Did you tell the government that you believed you had not committed a crime?”
“Yes, sir,” answered Blanchard, again denying the existence of a conspiracy with Blankenship to violate mine safety laws.
He further explained the deal. “They threatened to prosecute me sir. I didn’t break any laws, sir.”
Blanchard said that he was given an ultimatum by federal prosecutors. He said he was told if he didn’t cooperate he would be indicted.
“They were two bad choices, sir.” Blankenship was indicted two days after Blanchard signed the agreement.
The defense introduced more than three dozen MSHA citations in an attempt to show that they were often for minor issues, like improperly disposed of lunch wrappers, and also to illustrate that many of the problems identified and cited at UBB were quickly addressed, within a matter of minutes at times.
Taylor asked, “Did you run (the mine) illegally?”
“No, sir,” answered Blanchard. He said that it would be “impossible” to eliminate all mine citations because, he testified, too many citations are “subjective.”
Blanchard told Taylor that while Blankenship was demanding when it came to production, he never once told him to break safety laws at the mine and added he had committed no crimes.
“I didn’t break any laws.”
Blanchard said that while Blankenship was demanding and impatient at times, he never ordered him to break violate mine safety regulations and said neither did he conspire with Blankenship to skirt the law.
“He ordered us to reduce citations,” Blanchard said.
He also testified Blankenship never told him to violate any laws to increase production.
As he wrapped up his cross-examination, Taylor returned to a question he’d asked Blanchard multiple times: “Was there any agreement, unspoken or otherwise, with Blankenship to break the law at Massey’s mines?”
“No, sir,” Blanchard answered.
It would unduly tax my imagination to script a better cross-examination than this, but inevitably the specter of redirect appeared.
Assistant U.S. Attorney Steve Ruby began redirect by asking Blanchard if he understood the definition of perjury. Blanchard said he did.
Ruby then launched into a string of rapid-fire questions about what Blanchard had testified when he appeared before the federal grand jury.
Did he recall telling the grand jury that there was an understanding at Massey that it was cheaper to pay safety fines that spend the money to prevent violations?
Did he remember telling grand jurors that Blankenship participated in and fostered that understanding?
Didn’t he testify that Blankenship told him that fines were just part of the cost of doing business?
How about when he said that Blankenship constantly pressed him for more coal production?
Or when he testified he rarely heard anything from Blankenship about the high number of safety fines UBB was receiving?
Blanchard asked Ruby for a copy of the transcript of his grand jury testimony, and he read his original answers back when Ruby gave him the page numbers for the questions. Each time, Ruby would ask him if his answers to the grand jury was truthful. Blanchard said they were.
The redirect can be used to expressly rehabilitate the witness with prior consistent statements. The advocate can bring up a statement made in a deposition, police report or the grand jury, as done here. Ironically the AUSA wasn’t trying to rehabilitate the witness but rather his case. Whether he succeeded depends on the jury’s verdict.
Ruby asked Blanchard about his testimony on cross-examination that he had never broken the law, and reminded Blanchard that he was the president of a a coal company that was cited for hundreds of violations a year at Upper Big Branch. Blanchard agreed that he had previously testified that the majority of those violations could have been prevented.
Blanchard admitted he testified to the grand jury there was an understanding at Massey that it was cheaper to pay fines for safety violations than to address problems, that Blankenship thought such fines were the cost of doing business, and that Blankenship rarely, if ever, spoke with Blanchard about safety violations at the mines he ran as part of Massey’s Marfork Coal Group, including Upper Big Branch.
“That was the implicit understanding,” was Blanchard’s grand jury testimony.
During cross-examination, Blanchard told the jury there was no conspiracy between Blankenship and himself to break mine safety laws. Blanchard also told the jury he had done nothing wrong. But Ruby asked Blanchard if he knew that a conspiracy didn’t have to come in the form of a formal agreement, but can be part of an unspoken understanding. He said it can be based on what people do as well as what they say. Blanchard said he did not know that.
Ruby challenged Blanchard’s testimony that he operated the mine in compliance with the law by pointing out the hundreds of safety violations recorded under his watch the year before the explosion that killed 29 coal miners.
Ruby questioned Blanchard about individual citations for violations of federal standards meant to control accumulations of combustible materials, maintain proper mine ventilation, and control mine roofs.
With each citation, Ruby would have Blanchard read that likelihood of an injury resulting from the violation, often “reasonably” or “highly,” and then read for jurors what kind of injury could result. In several instances, the dramatic answer was — “fatal.”
Ruby was trying to respond to defense arguments that violations at UBB were relatively minor, or even bizarre, such as for having a propane grill on the mine parking lot. Ruby had Blanchard explain to jurors the particular hazard associated with “float” coal dust, and its ability to propagate explosions.
“It means to allow an explosion to continue, to allow it to grow,” Blanchard testified. “The force will travel faster than the front of the flame. That force will lift dust into the air, and allow the explosion to continue if that dust provided additional fuel for the explosion.”
During a sidebar, the government admitted to the court that they were shocked that their main cooperator had been turned into a stealth double agent by the defense. They sought to undermine the defense efforts.
After initially denying that he prepared for this week’s marathon cross examination by using information from Taylor and Blankenship’s other attorneys, Blanchard, under repeated questioning from Ruby, admitted he had reviewed potential questions and documents the defense provided to his own lawyers.
I was able to do this with the government’s star witness in at least two major trials. However, I was more subtle and the government never discovered then we had undermined his testimony. This always has to be done sub rosa.
AUSA Ruby had Blanchard read aloud from a U.S. Securities and Exchange Commission filing – previously entered into evidence – which showed Massey reported more than $50 million in profits in 2008.
“Was it enough?” Ruby asked.
“Enough what?” Blanchard answered.
“Enough profit,” Ruby said.
“It was profit, sir. I can’t answer that question,” Blanchard said.
Ruby had Blanchard read from another SEC filing that showed Massey reported more than $100 million in profits in 2009. Again, Ruby asked Blanchard, “Was that enough profit?”
“Again, sir, I can’t answer that question,” Blanchard said.
Ruby asked Blanchard if Massey’s level of profits provided any reason to commit preventable violations of safety laws.
Blanchard responded, “No, sir.”
Redirect examination is a powerful yet overlooked weapon. While cross-examination is celebrated and glorified, direct examination is seen as drudgery. If direct gets little respect, redirect is the orphan of trial strategy.
One reason redirect is so deadly under the federal rules is that it is almost impossible to get a re-cross. So the government as usual gets the last word. The psychological concept of “primacy and recency” works in an effective redirect examination. It is the government examinations which the jurors hear first and last, and thus what they remember the most. A dramatic redirect examination will be the last time the jurors hear from a particular witness and will most likely retain in their memory.
Bill Taylor, in order to overcome the recency effect, moved to re-cross examine Blanchard on a number of issues, the first of which was a host of new evidence introduced during the prosecution’s redirect examination.
Ruby gave the typical government response: “It’s often the case that after redirect, the party that conducted the cross examination will be dissatisfied and want another crack at the witness, but if the redirect deals with what’s been brought in the cross, it does not require a re-cross examination.”
Ruby argued while the government had previous conversations with Blanchard’s attorneys, those conversations started only shortly before Blankenship was indicted in November 2014, and the government did not know Blanchard would testify he was innocent.
The government subsequently filed a brief which concludes:
“Defendant’s stated bases for re-cross are unavailing; they all relate to areas of the redirect that did nothing more than test evidence introduced on cross-examination. Defendant has had more than ample opportunity to confront Blanchard. The scope, length and substance of the cross examination went well beyond that which are required by the Confrontation Clause of the Sixth Amendment to the Constitution. With his request for re-cross, Defendant simply wants further opportunity to present elements of his case through the easier vehicle of cross examination of Blanchard. Defendant has already indicated that it intends to put on a defense in this case, and he is certainly able to call Blanchard in his case. Given such an opportunity, and the fact that no new matters were raised on redirect examination, there is no risk of running afoul of the Confrontation Clause. Defendant’s oral motion for re-cross examination should be denied.”
FRE 611 is the rule which governs witness examinations:
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
The advisory committee notes contain the following:
Subdivision (a). Spelling out detailed rules to govern the mode and order of interrogating witnesses presenting evidence is neither desirable nor feasible. The ultimate responsibility for the effective working of the adversary system rests with the judge. The rule sets forth the objectives which he should seek to attain.
Predictably, the judge denied any re-cross saying that the proposed questions weren’t any “new material” that came up on redirect that the defense hadn’t previously been able to ask Ross about. “I find no new material. Both of these areas have been explored both by the government and the defendant.”
And this is why I hate redirect.
The charges against Blankenship are:
Conspiracy to willfully violate mandatory federal mine safety standards or to defraud the United States
Knowingly and willfully making or causing to be made a materially false, fictitious, or fraudulent statement related to a material matter within the jurisdiction of the Securities and Exchange Commission
Willfully, knowingly, and with the intent to defraud making or causing to be made untrue statements of material fact or omissions of material fact in connection with the sale or purchase of securities
After seven full days of deliberations, the jury said it was at an impasse. Judge Irene C. Berger then gave them an Allen charge urging them to return a verdict. “The very object of the jury system is to reach a verdict by a comparison of views. You should not hesitate to re-examine your own views.” There was no reason to believe, she said, that a new trial would include “more intelligent, more impartial or more competent” jurors. William Taylor Blankenship’s lawyer, renewed his request for a mistrial, and he argued that the jury of eight women and four men needed to recognize that its members were not required to compromise their beliefs to reach a verdict. “There are a lot of reasons why in this case you could understand the jury not being able to reach a verdict,” Mr. Taylor said. Steven Ruby, the prosecutor, countered that “a defendant has no right to a hung jury.”
I hate Allen charges because they coerce a jury into a verdict. A jury verdict should be based on reason and debate not coercion just to reach a decision to satisfy the court. And predictability this is what occurred but with a twist. Soon after the Allen charge, Blankenship was found guilty of the conspiracy count but acquitted of the other two counts. This was a classic compromise by the jury and in my opinion the Allen charge frustrated justice. The twist is that the Allen charge worked against the government. The conviction was not for a felony conspiracy such as a 371 conspiracy but a misdemeanor conspiracy for violating mine safety. Blankenship was acquitted on the two felonies that might have put him behind bars for 30 years.