Good cross-examiners know that what is unsaid is sometimes more important than the testimony. A question can frame all that follows. Listen to the tone of voice of the questioner. Look, if you can, at his eyes. There are no innocent questions in an effective cross-examination. All is bent to the purpose of making a point.
Today, one of the best cross-examiners in New England will face one of the most sympathetic witnesses imaginable: When Jeremiah Donovan rises from his seat to confront Dr. William Petit, Jr., the sole survivor of the home invasion that left his wife and two daughters dead, Donovan will have but a moment to reframe the doctor’s testimony.
Dr. Petit enjoyed the kid gloves treatment in the first trial, the one that resulted in a sentence of death for Steven Hayes. Donovan has signaled a more aggressive strategy in the second trial, involving his client and Hayes’s co-defendant, Joshua Komisarjevsky. The defense strategy has at least two components in this second case: first, minimize Komisarjevky’s role in the actual killings, and second, humanize the defendant with what will be as sophisticated a psychological defense as any presented since Clarence Darrow’s defense of Leopold and Loeb nearly a century ago.
The question for today is whether there is a third prong to the strategy. Will the defense seek to reframe this prosecution as fueled in substantial part by the rage associated with survivor’s guilt?
Here’s what such a cross examination might look like as delivered by Donovan.
Donovan: “Good morning, doctor.”
Don’t underestimate the significance of this from Donovan. I’ve seen witnesses turn evasive at “Hello” with Donovan. Try as you might when talking with him, you never really hold his gaze. His eyes are deep-set and always wandering, engaged in a private reverie. Some witnesses view his cerebral detachment as an insult. “Look at me,” they seem to scream. Donovan knows how to let silence speak.
Donovan: “Now where were you when your wife and children were being assaulted?”
The question is an insult. If the doctor says “I don’t recall” or “I was outside” or “I fled” Donovan will have succeeded. Expect him to follow up on any such question with what will sound like a dismissive “I see” and then silence. Donovan will be looking for the tiniest sign of anger here, something to seize on for the next set of questions.
Donovan: “You want to see my client dead, isn’t that right?”
The state will object on relevance grounds, but bias and interest in the outcome of a case are always proper grounds for impeachment. Dr. Petit’s decision to lobby state lawmakers to prevent the death penalty from being repealed opens the door to this attack.
The doctor will be well prepared. Expect an answer in which he talks about wanting to see justice done.
Donovan: “It is just to kill, doctor?”
The state will object. The question is argumentative. Judge Blue will sustain the objection.
Donovan: “You are aware, sir, that most nations regard the death penalty as barbaric?”
The court will sustain the objection, but the point will have been made.
Donovan: “You think justice requires killing my client, correct?”
The doctor will reply that this question is up to the jury.
Donovan: “Yes, it is. After they have heard all of the evidence in this case, and heard from Mr. Komisarjevsky, too. But you decided you wanted my client dead a long time ago, without the benefit of evidence about what happened after you left the house?”
At this point, Judge Jon C. Blue will intervene, and perhaps admonish Donovan, coming to the doctor’s assistance at a critical moment. Donovan will mumble a muted apology with a quick glance at the judge.
The lawyer will be silent now. The trap is set. A man left his home as his wife and daughters were killed. He escaped with his life. No one wants to require him to answer questions about that. Those are the sort of questions that follow a man to his own grave.
Donovan: “And you decided before hearing anything from Mr. Komisarjevsky, isn’t that right?”
Again, the doctor’s answer or the judge’s fury at this point hardly matters. Donovan’s goal is to impress upon the jurors their role as decision makers, to put distance between them and the doctor, and, if possible, the judge.
Few lawyers could pull this off without appearing to be unduly hostile. Donovan has the necessary temperament to pull this off, if he dares.
Why risk offending the doctor?
There is a powerful undercurrent among judges and lawyers, including staff within the New Haven State’s Attorney’s office, that the state should long ago have accepted guilty pleas in this case in exchange for the state’s foregoing the thrill of the kill. I’ve heard more than one judge in New Haven grouse about the waste of judicial resources. Donovan has heard this, too.
If Donovan wants to argue in his closing that the doctor’s rage is understandable but not a reliable guide for what the jury should do, he has a chance to lay the foundation for the argument today. No man can be a judge in his own case, we teach lawyers. The maxim is now centuries old.
But we have empowered complaining witnesses today. We call them victims even before there is a finding of guilt. Some complaining witnesses have more clout than others. They lobby lawmakers. They appear on Oprah Winfrey. They demand for reasons all their own the execution of others. And no one questions why we are so quick to regard the cry of the wounded as a reliable guide to what justice requires.
Will Jeremiah Donovan risk suggesting that survivor’s guilt and the rage associated it with it are private sources of sorrow that do not bear the weight that true justice requires? I’d be willing to bet he makes a feint or two in this direction.
Of course, the boldest stroke of them all would be for Donovan to sit out a frontal assault on Dr. Petit and to send in the former Marine, Walter Bansley. Such a move would signal a division of labor along the classic "good cop/bad cop" lines. Bansley is every bit the Marine, a blunt, even brutal attack done with the confidence of a professional boxer. Bansley may not be the real Tom Cruise, the lawyer who inspired the film A Few Good Men, but he could erase the foul taste left in the minds of some by claiming to be Jack Nicholson's nemesis by asking Dr. Petit whether the truth in this case is too hot to handle.
Today’s cross examination is one I wish I could watch.