Cross-Examining Smith:What's Wrong With This Picture?

American Lawyer, April 1992

by Victoria Toensing

"Mrs. Lasch," lectured Judge Mary Lupo during a court-imposed interrup­tion in the cross-examination of William Kennedy Smith, "this is not a course in trial practice."  With all due respect, Your Honor, yes it was.

Lasch's cross-examination of Smith recalled that childhood game in which one is shown a picture, such as a living room with a three-legged table and curtains that do not match, and is asked to list “what's wrong with this picture.”  Everything was wrong here.  Her questions were wrong; they were argumentative, repetitive, based on facts not in evidence, and asked to elicit the witness's opinion of the credibility of other witnesses.  The technique was also wrong: By asking open-ended questions, Lasch lost complete control of her witness.

But let's be fair. The prosecutor was at a disadvantage.  For weeks before the trial, defense counsel Roy Black pos­sessed every statement that every government witness had given to the police and prosecutors.  Lasch, on the other hand, had no idea what Smith's version of the evening would be until he took the stand.  Black cleverly omitted any details from his opening statement.

That handicap, however, can be minimized if it is understood that cross-examination starts long before trial, during trial preparation, when the lawyer decides the central message to be conveyed by a particular witness.  Throughout it all, the cross-examiner must maintain control - control over the direction of the cross, control over the defendant witness, and control over those final questions, which leave a lasting impression on the jury.

Lasch began the cross-examination with a direction in mind, but it was clearly not an effective one.  She first asked Smith numerous questions about his physical size and asked him to list the sports that he played.  By the time he had gotten to tennis, horseback riding, and diving, the jury must have felt he was the All-American boy.

What should she have asked?  Other introductory themes were obvious pre­trial and could have at least set a dif­ferent tone.  For example, what about the cavorting on Good Friday, the most solemn of holy days for Catholics?  You were raised Catholic, weren't you, Mr. Smith?  The Kennedys are very devout Catholics, aren't they?  And Good Friday is a day of atonement, isn’t it, Mr. Smith?  In fact, isn’t it a day when many serious Catholics would not think of drinking at a bar?  The answers do not matter as much as the theme established by the questioner.

This litany style of questioning builds and repeats, leaving an impression embedded in the juror’s minds.  How could a juror not be affected by the powerful impression Roy Black created during his cross-examination of Anne Mercer?  Again and again, Black drove home the point that Mercer had gone outside, where it was dark, with his so-called rapist, and went down the stairs, where it was dark, alone with this alleged rapist. . . .

Control over any opposing witness is important; over the defendant it is cru­cial.  An experienced trial attorney knows to keep such tight control of cross that the witness should not even be given a Magic Marker to indicate a position on a chart.  But that's hardly what Lasch did when she asked Smith (Dr. Smith) his opinion about how Patty Bowman got her bruises.  Smith smirked and responded, "If you are asking me how a person who is on blood thinner got bruises. . . . "  The jury probably did not care what the rest of his answer was.

But the worst open-ended question came when Lasch asked Smith what motivation Bowman could have had for saying he had raped her.  Smith looked like he had been let loose in a candy store.  In shades of Clarence Thomas, Smith said, "I do not understand why somebody would destroy someone's ca­reer . . . attack someone's family. . . .  But that's not the issue here. The issue here is, I'm innocent.  And how do you defend yourself from someone who says the word rape over and over again?"

Another obvious technical failure on Lasch's part was overkill.  On direct Smith had testified that he felt he had been "picked up" by Bowman.  Lasch pursued the theme with a mallet, argu­ing with Smith, improperly, about his "animal magnetism."

Instead, Lasch could have taken a different approach: Mr. Smith, you claim you were picked up by Ms. Bowman, but you just testified that you said "hi" to her first, didn't you?  You claim you were picked up by Ms. Bowman, but you testified it was you who offered to buy her a drink, wasn't it?

If the witness has revealed no smoking gun, the cross-examiner should at least have prepared a final set of ques­tions designed to make a good point, even a nice safe one.  And whatever the witness says, the examiner's last look and words should leave the jury feeling that she liked the answer.

Lasch, in her last six eternal minutes with Smith on the stand, flipped through pages and pages of legal pad, apparently making sure she had not skipped something.  She asked only three questions during these final moments, none of which made any thematic point.  Yes, Smith admitted to Lasch, he did have sex on the grass near his mother’s open window (my gosh, we react, but would he rape someone under Mother’s window?) and no, as a medical doctor he had no opinion (for about the eighth time) about how she got her bruises.

The mark of a fine trial attorney is that she never permits the jury to know when something goes wrong.  Whatever the witness says, counsel should look as if it was a favorable response.  Throughout trial, but particularly during Smith’s cross, Lasch forgot the audience factor.  Instead, she projected defeat.  It’s surprising it took the jury as long as it did to acquit.