Ringside Seating, Anyone?
So, Dick Cheney is likely to take the stand in the Libby case. But what does that mean, in terms of testimony? We've discussed that a little bit, but I wanted to take it a step or two further, by highlighting some very astute reader comments. First, this one from Caoimhin Laochdha:
While Cheney may “be able to have a lawyer present,” his attorney won’t be able to do anything other than sit back and watch. No smirks, hand signals or head nods either.
As a non-party, Cheney has no right to an attorney and the only participating attorneys will be Libby’s or Fitz (and maybe a ? or two by the Judge). Libby’s attorneys likely won’t risk speaking (directly) w/Cheney pre-trial because any hint that they have and those discussions are subject to cross examination since no testimonial privilege is in place between Cheney and Libby’s attorneys.
Unlike in the grand jury room, at the Libby criminal trial the prosecuting attorney has another attorney representing the interests of the defendant, who will challenge what the prosecutor is doing. However, neither advocate has Cheney’s interest at stake. And in fact, Fitz may have an interest in making Cheney look good on some questions and Libby’s attorney may have incentives to make Cheney look bad on some issues.
That could make for some very interesting back and forths on the direct examination — and even more intriguing back and forth on cross.
I've been promising you all some detail on the differences between direct examination versus cross examination of witnesses. Essentially, direct examination is where an attorney representing a party on the same side/perspective a a particular witness asks that witness questions. The questions must be open-ended, cannot be leading (as in giving the witness any hint as to the answer), and must be fact-oriented, to the extent possible.
What you want as an attorney asking questions of a witness on direct examination is to guide the witness, step by step, into telling the story for the jury — in their own words, not yours — so that the witness lays out the narrative for you. You do this by structuring your questions in such a way that the answers you anticipate lay the story out a piece at a time. This can be extremely effective, especially if you have a witness who is honest and open with the jury about all of the facts.
But it can be very tricky when you have a witness who is squirmy, dishonest, hostile or, even worse, holding things back which can then be picked apart by opposing counsel on cross-examination.
Cross examination is where opposing counsel gets to ask questions — often very leading questions which, when structured carefully, can be asked in such a way that there is really no good answer for that particular witness. There is an article on the ABA website that hits the high point on this:
The closing argument is the last occasion for the jury to learn why they should find liability and award substantial damages. A good closing argument reiterates the theme of the case, gives a summary of the facts, and tells the jury what it should decide. It is argumentative in that it states inferences which should be drawn from the facts and therefore why certain facts should be believed over others. It is an opportunity for the attorney to tell the jury the story they should believe. Because the story is in conflict, the story is not really important. It is the credibility of the attorney trying to convince the jury what to believe that’s important. Credibility of the attorney is enhanced by use of actual and demonstrative evidence, which are essential to the art of persuasion.
A good cross-examination is similar. It makes the witness admit or focus on the plaintiff’s theme of the case. It tells the jury what it should decide. It is argumentative. It states inferences which should be drawn from the facts and therefore helps to persuade the jury which facts it should believe. The attorney, not the witness, is the star. Use of actual or demonstrative evidence may be vital.
Thus, the good cross-examiner asks long, narrative, leading questions. The witness answers yes or no. The attorney stands in the center of the court room, often directly in front of the jury, so that the argument/question of the attorney is the focus. The witness is subservient, almost unnecessary. The attorney is paramount, the star. The attorney says a lot, the witness says little.
To be sure, the attorney must argue in a question and answer format. But that is simple. The attorney makes the argument directly to the jury, just as will be done later in the closing argument, and then the attorney turns to the witness and asks “isn’t that true?” or “you agree with that, don’t you?” or “that’s a fair statement, isn’t it?”
The very heart and soul of an effective cross-examination is in selecting those arguments where it doesn’t matter whether the witness agrees or not. If the witness agrees, great. If the witness doesn’t agree, the jury will still believe the argument for other reasons.
There is a point in this with which I do disagree — and strongly. The attorney is not the star of cross-examination if it is done well. It is the facts that shine out, and shine out strongly, in a well-done cross. And the fact that the person on the stand is a prevaricating smarm merchant who has spent all of direct examination trying to manipulate the jury by telling half-truths and attempting to produce sleights of hand with the evidence.
Of course, that is only true if you have a witness on the stand which fits that prevaricating, manipulator of the facts scoundrel bill. Since we are talking about Dick Cheney in this particular instance, I'll let you be the judge on whether that will come up for cross-examination.
The thing to remember about direct and cross is this: opposing counsel is limited on cross-examination to asking questions which are related only to those issues which are raised in direct examination. Nothing more, nothing less. But witnesses on direct cannot be led by the attorney asking the questions, and they do tend to ramble on occasion, which can lead to a lot of interesting avenues and opened doors for opposing counsel to peer into on cross.
Which leads me to an interesting vignette that James Robinson posted in the comments:
Cross-examining someone who’s stonewalling is actually pretty easy. David Boies did it to Bill Gates in the Microsoft trial: Upon realizing that Gates was going to answer every question with “I don’t know,” Boies began crafting more and more telling questions that he knew would elicit that answer after consideration, forcing Gates to say “I don’t know” over and over again. At one point, it took Gates over 20 minutes to finally answer “I don’t know.” The judge dismissed his testimony as unreliable and seriously considered taking Gates down for perjury.
The best thing that could happen is Cheney believing that he could lie or bluff his way through cross-examination with someone as careful as Fitzgerald. I think it’s more likely that he’ll stall and stonewall so as not to give Fitz any handholds; but as Gates learned, that’s not a foolproof strategy.
Which leads me to the final nugget, from LHP, from the comments that is well worth considering in the context of these particular actors, and Dick Cheney especially:
I actually wasn’t thinking of authorizing lying to the GJ, but now that you mention it, could be.
Back in the 80’s, Adnan Khashoggi and a retired Israeli general (why can’t I remember this guy’s name?) were indicted for violating a US ban on selling arms to Iran. The Israeli General claimed that he had been in meetings with Poppy Bush (then VP, former CIA Director) and that he (the Israeli general) had been “authorized” by Bush to sell the weapons to Iran.
In fact the weapons, in some cases turned out to be US weapons. They were being “laundered” through a couple of front companies and had false information about who the end purchaser was supposed to be. In at least one chain of invoices, IIRC, the end recipient of the arms was supposed to be Israel.
The fact that an former Israelii General was part of the transaction helped to disguise the fact that the arms were, in fact, going to Iran.
The general wanted to call Poppy Bush to the stand so that he could be confronted about having “authorized” the violation of US law.
At the time, the AUSA prosecuting the case thought it was greymail. And grandstanding–trying to capture press attention with a bright shiny VP.
She litigated the shit out of resisting the defense attempt to compel Poppy to testify. She had no idea that there might be any truth to these claims. She won. Poppy never got called to the stand. If memory serves, the subpoena was quashed.
This particular defense is well known to the Bushies.
[edited to correct some typos]
You do not claw your way to the top of the power heap in Washington without stepping on a lot of toes along the way. Dick Cheney has been around this block a number of times — and knows the ropes altogether too well, some might say. Patrick Fitzgerald has stared down terrorists and mafia dons — and Dick Cheney is small time compared to what some of those folks are willing to do with their own, bare hands. This is going to be one battle worth watching, though.
Don't know about you guys, but I bought some extra popcorn…ringside seats, anyone?