Failure is an Option

January 7, 2015 Cross-Examination
Photo of Doug Wilder

Doug Wilder

Some days cross-examination doesn’t work. No matter how well planned, no matter how well the strategy executed, nor how tight the questions, the witness beats us. One particularly insidious type is the witness with an agenda. They won’t follow the rules and simply answer the question. They volunteer their personal agenda whenever possible. It is as if they know we can’t stop a speech. We have to stand there and take it, with a silly smile plastered on our faces, trying to appear that it didn’t hurt. We see this from the cooperators who are anxious to impress with their “honesty,” but it is hardly confined to them.

A good example occurred yesterday at the sentencing of former Virginia governor Bob McDonnell.1 AUSA Michael Dry, despite following all the rules, and being well-prepared, was bested by a witness with an agenda.

Dry had declined to cross examine a series of defense witness until former Virginia governor Doug Wilder. Wilder testified that McDonnell had suffered enough from his conviction and the destruction of his political career and deserved some mercy. Dry made the mistake of taking on the veteran politician:

Dry: “Isn’t it true that all public officials who accept bribes are stigmatized?” Wilder: “Yes, sir.”
Dry: “Isn’t it true that there’s a problem in America with cynicism toward the political process?”
Wilder: “yes.”
Dry: “And that when elected officials accept bribes, they deepen that cynicism?”
Wilder: “Yes, sir, I would agree with you, so much so that it’s dangerous.” [Perfect, if he stopped here, but of course he didn’t.] “In this case, the public also sees something else. They see that the ‘progenitor of the bribe’ — [businessman] Jonnie Williams — walks away clear.” [Williams was given immunity in exchange for testimony against McDonnell.]

The courtroom, packed with McDonnell’s supporters, erupted in applause. Not the result Dry wanted.

Dry was smart enough not to fight with the witness, which usually is a losing battle. Instead, he bided his time. He got a measure of revenge in his sentencing argument: “The Jonnie Williamses of the world are a dime a dozen. Corrupt governors are not. But when we find one, he must be brought to justice.” Sometimes we have to lose gracefully for the greater good.

1My teaching method is to use concrete real world examples from court proceedings or our moot court trials. Trial skills can not be taught in the abstract like most legal subjects.