Sanctuary in the Jungle

Reimagining Cross Examination | Jim McComas

• Aaron Nelson • Episode 9

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So you've learned how to be comfortable in cross examination. Now what?

Jim McComas has spent decades redefining what's possible in the courtroom. Between leading the trial division at the Washington D.C. Public Defender Service to becoming a legendary homicide defense lawyer in Alaska, Jim didn't just master cross-examination. He reimagined it.

Building on the fundamentals explored in our previous episode with Matt Dodd, Jim introduces his next steps: dynamic cross-examination. Forget rigid scripts and predictable patterns. Jim argues that the lawyers who win hard cases are the ones willing to take calculated risks — turning witnesses into active participants in cross.

Drawing from his book Dynamic Cross Examination, Jim reveals how to gather your own facts, pull them out with precision, and stay fluid when the unexpected happens. If you've ever wondered what separates a good cross from a great one, this episode is your answer.


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SPEAKER_00

My goal was to embolden lawyers, empower them not to be afraid, to think of questioning in ways other than the yes-no method.

SPEAKER_01

Welcome back to another episode of Sanctuary in the Jungle. I'm your host, Aaron Nelson. In today's episode, we're diving further into the world of cross-examination with our guest, Jim McComas. Jim quite literally wrote the book on how to level up your cross-examination. As chief of the trial division at Washington, D.C. Public Defender Service, and later as an iconic homicide defense lawyer in Alaska, Jim created new dynamic methods for the courtroom. In our last episode with Matt Dodd, we explore the fundamentals of cross. Mastering these techniques of control are essential. But once you've mastered them, where do you go next? Jim says to truly excel, you must embrace flexibility and make the witness an active participant in advancing your story. Hard cases are won by taking calculated risks. In a dynamic cross, the lawyer designs their approach and questions to take full advantage of the witness's predisposition, needs, and agenda. Keep listening to hear Jim McCamas explain some teachings from his book, Dynamic Cross Examination. Here's Jim. Well, welcome to Sanctuary in the Jungle. I'm so excited today. Our guest is Jim McCamas. Welcome, Jim. Thanks for joining me here in Hudson. Thank you, Aaron. It's a pleasure. Yeah, Jim is one of my heroes, a mentor from far away. Jim's been a longtime criminal defense attorney. He wrote, I think, the book on cross-examination, dynamic cross-examination, which we'll we'll get into longer. And the quick version is I read the book, I found out you lived in Wisconsin, I hunted you down, uh, maybe stalked you to some extent, and uh drove up and you helped me with my first homicide trial, and uh, we got a knock guilty, and my client came home. So thank you, Jim. You are more than welcome. Yeah. So tell us a little bit about yourself, Jim. Let's just start. You you grew up here in Wisconsin, is that right?

SPEAKER_00

I grew up in uh suburban Milwaukee and uh went to a small school uh in Ohio. Growing up in uh suburban Milwaukee, where in Milwaukee did you grow up? Uh Whitefish Bay. Okay. My dad was uh a civil lawyer uh at the Foley firm. And this is Foley and Lardner. Yes. And I think they're the largest firm in Wisconsin now, are they? I'm sure they are. So your dad was there. He did some trial work, he told me. Okay. But it was defending uh the gas company uh when uh there'd been explosions. And so that didn't appeal to me. That wasn't something that was not something on my radar.

SPEAKER_01

But what was that like growing up with uh I mean you you must have then grown up in uh uh uh you know, with your dad's a lawyer, education is important.

SPEAKER_00

Was that something that was part of your youth? Oh yes, absolutely. Uh education. And uh there was a lot of uh free range of discussion and ideas uh in the family. Uh a lot of what I read back then, uh uh the civil rights movement was really kicked into high gear then, and uh it became obvious, both from the news and from books I was reading, that the criminal so-called criminal justice system was basically being used as a political tool. Is that something that like through high school, before high school that even before then I I used to say uh about the book and the movie that I I wanted to uh like in To Kill a Mockingbird, represent uh the client, uh but uh get him acquitted so that he wouldn't have to, you know, run for his freedom and be shot in the back. Yeah. Albeit in the fictional county in Alabama at the time, I doubt anyone could have got him acquitted. Because of the way I was brought up, I believed uh at the time uh in the principles of Christianity I was brought up in, although I currently uh don't believe in any organized religion. And that was important to you when you were growing up, some of those values you got from those books? Exactly. Uh from there and then also from si civics classes and being interested in law and criminal law in particular, you know, seeing every day the difference between the news and and the theory I was being taught.

SPEAKER_02

Oh.

SPEAKER_00

Or the way I felt about it, they were promises. Promises had been made. And if you can't fulfill your promises, then you're not the country that you claim to be.

SPEAKER_01

And there's nothing like a child to not that you were a child there, but there's nothing like youth to say the adults are saying one thing and they're doing a whole different thing.

SPEAKER_00

Exactly right. And that's what you had. Exactly right. So I knew from high school at the latest that I wanted to be a criminal defense lawyer, and uh my goal was to get the credentials I needed to get the best possible placement I could to start my career and and to do that work uh as long as I could do it.

SPEAKER_01

Yeah, one of the I've heard you talk to others about that you'd go to the courthouse when you were in Milwaukee there. Would you go to the courthouse and watch?

SPEAKER_00

Yeah, on Saturdays, uh I'd go down there uh sometimes with some friends and we'd we'd just watch arraignments.

SPEAKER_02

Okay.

SPEAKER_00

Uh and uh it was pretty uh it was pretty shocking. If you were a defendant of color, uh you weren't released and you were sent to jail on some maybe small amount of bail, but one that you couldn't pay. Yeah. And on the other hand, if you're one of the few white defendants that had ended up in the in the holding area, then you were sent home with your parents or or whatever. And it was just another another reiteration of what was so wrong with the uh with the country. Aaron Ross Powell What how old were you when you did that? Teenager? High school? Yeah, maybe twelve to fourteen.

SPEAKER_01

What would I mean I'm just something that's fascinating to me that somebody would have the vision.

SPEAKER_00

I already had a deep interest in in law and being a lawyer. I d I didn't desire to be a politician. But I thought if I can have an impact that will make some of these issues better, that will keep some of our constitutional processes, that will reduce some of this uh racial bigotry and and discrimination, uh the law seemed to be the way to do it.

SPEAKER_01

Wow. So now, you know, I'm 54, been doing this about 29 years, and when I talk to people in the in the public about the court system, one of the things that I often say is, look, you need to go and watch. If you want to know about justice in your community, if you want to know what's really happening, can't trust this TV, you can't trust the news, you gotta go and watch. And here you are, a 13-year-old, and you figured that out.

SPEAKER_00

Yeah. Well, and that's right. I mean, there's nothing like seeing it actually happen. And as it turned out, the only court I could get into on the weekend other days I was at school uh was uh was a Rainman Court. Uh but that turned out to be a very good one because there was a wide range of alleged crimes and decisions were made very quickly, and so you really could understand what it was what was happening.

SPEAKER_01

Um so I want to get back to a bunch of there, but I still want to follow the to to your your uh journey through here.

SPEAKER_00

Okay, because you left uh you left Milwaukee and you went to to school outside of Wisconsin, uh Yeah, College of Wooster and Worcester, Ohio, and then went to uh back back to Madison. My both of my parents went there to a small liberal arts school.

SPEAKER_02

Okay.

SPEAKER_00

Then we then we were at Harvard, and uh when I got to PDS in 1978, there were only maybe four black lawyers out of the whole staff of thirty-five or so. Okay. All the clients uh were African American, uh almost all the judges were white. Um and almost all of the PDS lawyers were white. So it really you had to really learn fast that your job wasn't to be a mouthpiece for somebody that you felt sorry for, but if you were going to advocate that that you were going to have to understand as much as you could and use that as the as the wellspring for how you would help them in court.

SPEAKER_01

Understand their experience, understand their culture, their environment, everything. Yeah. Sure.

SPEAKER_00

Exactly.

SPEAKER_01

So you're our uh we had another guest who had uh went to Harvard, uh James Coleman Jr., who's now a professor at Duke, was at Harvard in the early 70s. So I don't know. You guys may have overlapped for a year or two, but you met uh some of I think some of your closest friends there at Harvard, is that right?

SPEAKER_00

Yeah, well uh three of us after graduation went to the public defender service in DC from Harvard. Uh Charles Ogletree, myself, and Jimmy Klein. Okay. Uh and our plan was ultimately that I would be in charge of the trial division, Tree would be the director, and Jimmy Klein would be in charge of appeals, and we almost made it. Oh we got very close.

SPEAKER_01

That was your plan coming out of Harvard?

SPEAKER_00

Yeah, we got very, very close. Wow. Um That's pretty I mean they're both wonderful uh people. Tree died a couple years ago. Yeah. Um Jimmy is I just talked to Jimmy the other day. Okay. Um and and so You all three went to PDS? We all three went to PDS. It was the only place that we wanted to go, basically the only place that we tried to get to.

SPEAKER_01

And uh let me just stop you there, because PDS to people in our world uh is known. That's an acronym that we all know. But what's PDS?

SPEAKER_00

That's the public defender service of uh the District of Columbia. It's the District of Columbia does not have uh, I think it's Article III courts, like the federal system. Because it's a district that it has Article I courts. Okay. And uh Richard Nixon appointed our entire bench in the s early 70s. Uh so we had that going for us too. Yeah.

SPEAKER_01

So because you know I practice in Wisconsin, so we're dealing with Wisconsin law. Right. And I um have friends. Uh Joe Bugney, one of our guests, used to be a federal defender. Some of the people that I admire, Craig Elby, the uh the leader of the Federal Defender Service here in Wisconsin, they do federal law. Yeah. But PDS is something different than both of those.

SPEAKER_00

Trevor Burrus, Jr. It was different, yes. Uh i it was federal in the sense that the prosecutions were done by assistant U.S. attorneys. However, it wasn't governed by the federal statutes.

SPEAKER_02

Okay.

SPEAKER_00

Uh there was a more or less common law of evidence. There was no rules of evidence, but a common law of evidence, uh, and there were some provisions of law. Um, but it was it was essentially the same as trying cases in your superior court in Wisconsin. Okay.

SPEAKER_01

So tell me a little bit about, because uh uh as an outsider, somebody who's uh all public school, uh all Wisconsin education, and now works in Wisconsin, as an outsider, I look at this and I'm like, wow, there seems to be a a heavy path between Harvard and PDS that continues to this day.

SPEAKER_00

Yeah.

SPEAKER_01

Did were you were you somebody that created that path? Were you following the path of others?

SPEAKER_00

I was following the path. Uh I didn't even know about PDS until I got to Harvard. And then I found out that they sent a higher ranking member of the organization around to schools to interview people. And so that's how um I ended up hooking up with them and also Tree and also uh Jimmy. You know, it was very funny. Harvard claimed that of their nearly 2,000 graduates or whatever, a third of them were going into public service work. Wow. Well, I didn't see them at PDS. I saw Jimmy and Charles.

SPEAKER_02

Well, still the fact that the the thing was.

SPEAKER_00

They were voting clerkships. And clerkships were set up in a way uh so that uh people would go to this judge, and then that would get me to this appeals judge, and that would get me to this Supreme Court judge. Sure. So on and so on. They're working their way up the ladder. I found Harvard to be a a radicalizing experience. I'd never met people who hadn't gone to public school before, except parochial schools. Uh I uh when I saw how they were mapping out their futures and all the rest of this, I it just r was revolting. Oh uh and and so I couldn't wait. I could I couldn't wait to get to DC.

SPEAKER_01

Radicalized in a sense that sometimes, as we do, we're like, I'm not gonna be that guy. I'm not gonna do that thing.

SPEAKER_00

There is nothing here. It's this big to-do about what? Yeah.

SPEAKER_01

Which bank wins. Go into big law with big money. Right? Right. And you picked a different path. Yep. So tell me about that. Starting out at at PDS in the 70s there, how did you get thrown into the deep end? You have some mentors there.

SPEAKER_00

Well, the first thing that happens is you don't touch a client's file when you go to PDS until you've gone through six to eight weeks of training. Wow. Full-time training. It's considered by all of us who've been there to be the most important part of preparation. Because if you go to a public defender service where you just get thrown into the pool and here's 10 files or 15 files, you know, uh go to arraignment and then handle these misdemeanor cases, a lot of lawyers are totally intimidated. They're really afraid that they're going to look like idiots. They don't know what to say, and you know, it's all totally unnecessary. It's like making medical students stay up for 36 straight hours if it makes no sense at all. Trevor Burrus, Jr. And they still do that.

SPEAKER_02

Yeah.

SPEAKER_01

So they still train public defenders sometimes in the with a lack of training in the way that you're talking about.

SPEAKER_00

Trevor Burrus, Jr. So PDS was, as far as I know, at the time, the only or certainly one of the only programs where there was full-time training. At that time it was six weeks, and I I believe it's expanded since then.

SPEAKER_02

Okay.

SPEAKER_00

Um and so by the time you went out of there, you had, first of all, developed cohesion in a class of eight to twelve people, however big the class was, and they were there to support each other. And then they were also given uh a supervisor when they started getting cases, and they started in juvenile court or appeals, and then misdemeanors, and then felony twos, and then felony ones. Well, although, you know, it was a another great advantage that looks like a disadvantage, was there was no Rule 16 discovery. What's that? In Washington. Rule sixteen discovery federally and in most states means the prosecutor has to give over everything. All the uh of the witnesses he's gonna call, or the witnesses that are favorable to you, all their statements, all the police reports, all the lab reports. Uh there was no such thing in D.C. Trevor Burrus, Jr. It's not that it didn't exist, it existed, they just intended to be a few of the things that we're doing. Well, there was no rule. No, that applied specifically to uh to DC. So you would try and get, you know, you'd get very little uh by way of um of formal discovery. So that led to the practice of filing innumerable motions. And as many motions as possible, and demanding hearings on them and creating our own discovery mechanisms. You'd gather facts through the under oath. Yeah, by doing the money. We didn't have a grand jury, but we could always think of a motion that would get an opportunity to get this person up there. Trevor Burrus, Jr.

SPEAKER_01

And we'll get into your book, Dynamic Cross Examination, which was a career changer for me, but just to touch a little bit on it to tease, I think that's part of what allowed you to have to do dynamic cross-examination is you didn't know what the evidence was.

SPEAKER_00

I totally agree, and I say in the book that it's a big disadvantage. I I have seen public defender agencies, and I'm not saying all of them, but I I have seen agencies where if you ask someone to send over their file because you're taking over the case or something, what you get is the discovery. Sure. There's nothing else in there. And the discovery again is just police reports, witness statements, grand jury testimony if it's a felony, lab reports, uh you know, all these things that you need to know and you want to know, that's for sure. But you know, the fact that it hasn't been added to by the defense lawyer who's had the case shows you that they're relying for the statement of what this case is about on government agents who produced it. Sure. And that's that that's uh uh a big mistake at step one.

SPEAKER_01

Yeah. I've always lived in a world in where we get discovery. We get what you call rule sixteen, we get all of those reports. Open file.

SPEAKER_00

Open file. That's what you get. Yeah. Um my mistake. We got rule sixteen, which was only very little, like lab reports and and that kind of thing. We didn't even get without except under the Jenks Act. Sure. Which was an ancient.

SPEAKER_01

But what I think I hear you saying, you know, in the um for there for a while there when I would describe it to my clients, I would I would describe Discovery as the annual Christmas letter. We've all you remember back in the day when families, somebody would write out the the end of the year the holiday letter. Here's what happened with the Nelsons. The children did this, we did this, and it's all the highlights, it's all the great stuff. And there's times maybe when you'd get the letter from the Johnsons and you live next to the Johnsons and you'd go, the letter says this, but the world says this.

SPEAKER_00

That's very apt. Yeah, that is apt. And it's the Johnsons, after all, who are writing their letter. You know, and when is the last time you ever saw a police officer write a report discussing credibility or pending charges against the witness, or you know, there's all that stuff out there to be found out that uh you you gotta go out and find yourself.

SPEAKER_01

Yeah. And so part of it is what I think I hear you saying is when we got the letter, some people would just be like, we're just gonna use the letter. Yeah. As opposed to go and talk to the actual neighbors, talk to the people that were involved, the the people that might be able to add to some of that story. You can't do that.

SPEAKER_00

You can't do that. And um boy, we we're at a point now where we know so much more than we did when I was coming up about why eyewitness identifications can be wrong, uh, why perception can be wrong. You can even learn that muskie fishing. You're reeling in a bucktail and you see the muskie behind it right next to the boat, and you never see the fish open its mouth and grab the bait. You just feel your rod going down. Okay. And that's happened to me on more than one occasion. Your eye won't process something that happens that fast. It happens too quickly, yeah.

SPEAKER_01

And so now you put yourself on the street and guns are going off, and you know Yeah, that's your own experience in saying, look, I can't I can't rely upon my eyes and my ability to describe what I saw because I didn't see it. It happened too fast. Yeah. So tell me a little bit about those early years then at at PDS. You're there with again uh Jimmy and Tree, as you say. Yeah. Working with uh Mr. Coleman as your uh is your mentor, right?

SPEAKER_00

And uh what was just great. We did we did a bunch of cases and we didn't make any money. I mean it was the worst paying job in the world. Uh but it we uh stuck we stuck it out there and uh and uh uh uh Tree ended up as the deputy director and Jimmy ended up as the head of uh trials, or I the head of appeals, and I was the head of trials, and then we had a horrible political problem that occurred. Then I came to Milwaukee and thought maybe I would practice here, but uh there was a contract murder case in Alaska that uh uh Jim Sheller's firm had, and so uh I tried that case.

SPEAKER_01

So you left PDS, started to do practice in Milwaukee, and pretty quickly you got dragged up to Alaska.

SPEAKER_00

There was a mistrial after the first three month trial. And uh then I retried it uh alone and got an acquittal the next year uh also in the winter in Fairbanks. And by then I loved Fairbanks and Alaska. It's the most beautiful place I'd ever been, even including my beloved North Woods.

SPEAKER_01

Thanks for listening. Hope you're enjoying this episode so far. If you haven't already, make sure to subscribe. We've had a lot of new people join us recently. I'm glad you're all here. My goal in this project was to grow a community of people who care about humans and treating them better. So if you're new here, thanks for joining us. And subscribe now. Well, let me just pull out the book here. Okay. Um, you know, this is your book Dynamic Cross. This is this is my uh well-worn version of the book. Well-worn in and marked off. This is this comes out in like 2012-ish?

SPEAKER_00

Yeah, 11, I think. 11 is the date in the book.

SPEAKER_01

Sure. And so you wrote this after you'd uh retired.

SPEAKER_00

Yeah. I retired in 2000 end of 2007. And then um I was still doing CLEs and still going back and doing training at the DC Defender Service, and I just felt like there were some things that I'd figured out and was able to articulate in a way that no one had been able to articulate it to me.

unknown

Yeah.

SPEAKER_00

And so that led me to write Dynamic Cross. And as I started writing Dynamic Cross, I realized I was also going to have to write case analysis.

SPEAKER_01

That's the second book over here.

SPEAKER_00

Because, yeah. Case analysis. Because that's that's the fountain that the the content, as you said, uh of Dynamic Cross comes out of.

SPEAKER_01

Yeah. And so, you know, both of these books are written after you're done practicing. Right. But it's uh it's a manner of uh it's a method, it's a manner that you you did throughout your career. Yes. And so this isn't that you came up with it in 2011, you're just capturing what you've been doing for 30 years.

SPEAKER_00

Well, I devel uh yeah, I develop I developed it as I went along. I I will say, even before my eighth year in practice when I left DC, I had already figured out that the yes-no method of cross-examination, I'd already figured out that that wasn't sufficient. You know, it was as good to learn and that you had to learn it because you couldn't spend six years or five years in a tutorial as an apprentice in this world. So it was good to learn how to ask questions that minimized risk, but at the same time, you were minimizing opportunity.

SPEAKER_01

And so the just to for the for the non-lawyer listeners or for even some of the lawyer listeners, what's the yes-no method when you talk about that?

SPEAKER_00

The yes-no method is uh the method uh that is that we all grew up on, in which we're supposed to ask only leading questions and only questions we know the answer to. Uh and therefore the answers from the witness will be mono-syllabic. Yes, no, I don't know, uh, I forget.

SPEAKER_01

You're Jim McComas. Right. You grew up in Milwaukee. Yes. You went to Wooster. Yes. You went to Harvard. Yes. You're a lawyer.

SPEAKER_00

Yes. That's exactly, exactly. So that it's the lawyer that's the that the jury is focusing on, not the witness. Um and the the great story that gave rise to this concern was about some people have even attributed to Abraham Lincoln doing a trial, but I can't verify that. So it's a mayhem trial. Uh two guys are brawling in the street that's barely lit with oil lamps. One bites the other's ear off, supposedly. That's the challenge. Allegedly. And so leading questions come up, and you know, so the uh it was dark, wasn't it? Yes. And uh there was almost no light, true. Uh it would be hard, you'd say, to say more than uh to see clearly more than twenty feet. Well, maybe maybe twenty-five. Okay, twenty-five. And there were what, four, five, six rows of people between you and and where they were fighting, eh, probably four. I mean, this goes on and on and on. And so, sir, it's true, isn't it? That from where you stood, you could not see the client's ear bitten off. No, I couldn't. And according to uh the yes-no method, you're supposed to sit down and declare victory. Uh instead of Because you don't want to ask one question too many, right? That's one of the instead you ask a non-leading question, then how can you say he bit it off? I saw him spit it out.

SPEAKER_01

It's very much a straw man story that I think that that talks about one of these things. Don't ask questions that you don't know the answer to. Right. Trevor Burrus, Jr.

SPEAKER_00

And the problem, of course, is uh and so this terrifies young lawyers. They can just imagine being in that position, you know. So they must maintain over control. But the problem is that answer is coming out on redirect. Yeah. If it didn't come out on direct examination in the first place.

SPEAKER_01

First question I ask if I'm the prosecutor is Mr. McComas had asked you about this, and you said you didn't you didn't see that. What did you see? Yeah. Right? And so it so it all comes out. Um so this is something you developed probably, it sounds like back at PDS. You were watching Gary.

SPEAKER_00

Yeah, watching Gary do uh cross-examination.

SPEAKER_01

What would Gary do? Was Gary doing things that when you saw him do something, was he doing something a little bit different than the training of the yesno method that you had?

SPEAKER_00

Yes, he was. And I uh I I'm not entirely sure of the extent to which he he was aware of it. It was just that he knew he had to do more than what would have been permitted. And he wasn't trying to do a cross-examination so that those of us watching in the audience would give him an A on the yes-no method. He was trying to do a cross-examination that would break down the witnesses and and result in acquittal.

SPEAKER_02

Yeah.

SPEAKER_00

And so that was, yeah, and in fact, he says in the forward to Dynamic Cross that, you know, most good lawyers who are experienced uh vary from the yes-no method. Um, but nobody had really tried to articulate the why and the when and the how in the same way that I presented in there. The other thing about that book is it's not dispositive or definitive on this method of cross. It my goal was to embolden lawyers, empower them not to be afraid to think of questioning in ways other than the yes-no method. And having done that to provide them with the tools that they would need so that they could do that, which is why almost every chapter in there has examples after it. Absolutely. Uh lengthy examples.

SPEAKER_01

One of the things that that struck me with Gary Coleman's comments in the in the uh preface or intro there uh in your book is he says um the method, the yes-no method, uh is based upon attorneys always needed to be in control to be comfortable. And it's so much related to our own ego, right? It's not that the control is what's valuable, it might be, but if we are in control, we as human beings, we as lawyers, we feel more comfortable. And that's really at the core of what it is, is the attorneys are making their decisions sometimes under this, or at least that was your premise, I think, is that it wasn't about the case, it wasn't about winning it, it wasn't about persuasion, it was about doing what the attorneys are comfortable with.

SPEAKER_00

Right.

SPEAKER_01

And that's not always the most effective.

SPEAKER_00

An unfortunate um method of describing this method, which I will not attribute to the person who said it, is uh that the yes-no method is uh look good cross-examination. I think the lawyer scores a few points, uh doesn't ask anything, they can't be backed up with prior statements or discovery or or whatever, and sits down without having lost the case. Sure. Well, I have to I I I have to say this. If ever juries were so committed to the presumption of innocence and proof beyond a reasonable doubt that yes, no would accomplish the job, it doesn't any longer.

SPEAKER_02

Yeah.

SPEAKER_00

I mean, we've now lived through fifty years of law and order every night on the television. I mean, it got to the point in Alaska where I'd have to vordeer on that because of the uh the images that were being they're expecting to have it all wrapped up in an hour. Right.

SPEAKER_01

You know, in many ways, you know, um, you know, if if the if it's all about the comfort for the lawyers and asking questions that you know the answer to, you're stuck with the Johnson's letter. That's all you're stuck with is and if the Johnsons get to submit their letter and that's the only evidence, we're gonna lose our cases because that's the story that the state wants to do. And that's if we if we stick with that, we we lose.

SPEAKER_00

And so we're particularly true in uh homicide cases. Tell me more about that. I have pondered that. Uh when I left uh PDS, I'd kept track of all the trials in the two years I was the trial chief. And um it was very clear that in non-homicide cases, those cases could be won usually without the client testifying. Unless it was something like self-defense or something. In homicide cases, it was very unlikely to win unless the client testified. And I've discussed it with people over the years, and then I found the same thing in in Alaska and and uh limitedly in Milwaukee. And I think the reason is that there's no complainant. You can't cross the decedent. You can't cross the decedent, uh although sometimes in Dynamic Cross you do. Theoretically, yeah, you can't. At least in non-homicide cases, there's an accuser. And so there is a this versus this. And if the accuser, if you can create s sufficient doubt about the accuser, then it's not necessary.

SPEAKER_01

Yeah, it's an it's you you're winning your case by uh uh uh taking apart the accuser's testimony, right? But you don't get to do that in a homicide. Right.

unknown

Right.

SPEAKER_01

If you're enjoying this episode so far and you want to learn more, check out Jim's book, Dynamic Cross-examination. In the book, he shows us new ways to create opportunities to win, like how to build trust with witnesses, how to push cooperation as far as you can, and when and how to use non-leading questions. Jim's book changed my career. Dynamic Cross will revolutionize how you think about cross-examination. It's helped me win hard cases that otherwise could not have been won. It's a must-read for any serious criminal defense lawyer. Yeah, we were talking about um the value of being able to cross-examine witnesses, and that's sometimes taken away in homicide cases for the obvious obvious reasons. Is that part of what helped you to develop the dynamic cross in those through those cross-examinations?

SPEAKER_00

Well, I I mean, to the extent it's uh it's somewhat harder uh to uh to achieve the acquittal that we want if we don't have an accusing complainant, yeah, that increases the importance of using a dynamic method uh in order to find the opportunities uh that are presented uh in court. Sure. And let me just mention one other example that uh I thought of uh when you were mentioning something before. Among the things that I noticed in DC when I was in appeals for a year was that most of the best lines for the defense did not come out of cross-examination, but instead were like you modeled before, when the prosecutor would say, Well, why did you tell two different stories on redirect? And some great answer would come out, like uh, well, I'm really not sure. I I I just don't know what to say, or something. You know, or so there are great answers for the defense. Yeah, great for the defense, great for the defense. Because the prosecutor didn't know what you know what the witness was going to say because they have not spent the time in analyzing the case. Interesting.

SPEAKER_01

I wonder if I'm uh like everybody, right? Always a student, never the master. I'm always I'm always learning. Um I'm definitely I think I'm using dynamic cross as much as I can. But now that you say that, I've always said my best crosses are on recross. And I wonder if that's not because my initial cross is a little more yesno. And then in the redirect, there I'm getting these great answers, and then from those great answers, I'm getting up and being able to do some other stuff because it's right, it it's that is that that second stuff where you feel like you're in the moment and you you hear people giving explanations and you just take something from that and you're like, ah, yes, that helps me.

SPEAKER_00

And let's look at the functionally why why that happens. First of all, your context is already established. The subject's been discussed. It's you know, it's now within a circle like this. And you can you can go right into the heart if you want. Um a big point, though, is is to make sure you know uh from the beginning of the trial before the first witness takes the stand, whether this judge allows recross as a matter of right. Oh, absolutely. Many judges in D.C. did not allow a recross examination, which again was a major uh of major assistance to uh uh prosecutors. However, it further legitimizes using a dynamic method on cross. Absolutely. You got one shot. This is your time, you know.

SPEAKER_01

And up in the Northwoods here, I've always had two rounds. Each each side gets two rounds. But my good friend Jessa, who I tried some cases with, and unfortunately she's recently passed, but she was telling me in her jurisdiction, it was the state went, the defense went, then the state went, and there wasn't recross. If the state got two chances, and that just exactly like you say, then you better be dynamic in that first chance. That's right. You can't you can't wait and uh to do it. So the the yes-no method, we've talked about it a little bit more, but the basic, some of the basic rules are, you know, uh always use a leading question, right? Always one fact per question. And generally speaking, I hear the third rule is being, you know, work in a chapter method going from general down to specific. And you're not adverse to those. I say uh you say in your book that that is a that is something that you need to master, you need to be able to absolutely do on your feet before you move into dynamic crossing.

SPEAKER_00

Absolutely. Uh, and there are two main reasons for that. One is you got to walk before you can uh run fast. Yeah. So uh first you first you develop that and the confidence that it's not going to be a disaster every time you stand up to ask a question. Uh the other uh aspect of it, in addition to uh it being uh something you have to do to be comfortable enough to do the job when you're starting, uh then it it moves on into uh a tactical choice. There are some subjects that have to be leading by nature, such as impeaching a witness with a prior inconsistent statement. Sure. I mean, if you try and do that vaguely with or or with an open-ended question, it's gonna take hours to get to the point. Uh whereas if you can just say now, you uh stated under Act X, you gave a statement to the police uh last week, in that statement you said blank you acknowledge that's inconsistent, or so you told two different stories, or the you whatever your third question is beyond that. Uh yeah, that's uh so there are some areas, sometimes technical areas of expert testimony are easier to do using leading questions. But that doesn't mean you can't use non-leading questions when you get to the parts of that testimony where you're going to uh confront the person with the illogic of what they're saying or how it it doesn't fit with the facts of the case. Um especially the best way to start off a uh examination of an expert in many, many cases, uh especially an investigative expert like a police officer or a detective or uh a scene reconstructionist, is to say, okay, so tell me, how do you do a scene reconstruction? That's a non-leading question. And then make sure, because they're not relating it to this case and you're not relating it to this case, you make them provide you with all the things you're going to confront them with later. Would you say that having made up your mind already before you start your examination is the proper way to proceed? Well, no, no, I wouldn't. Well, what what would you say? Is it you have to keep an open mind. And on and on and on.

SPEAKER_01

So we get these w we're talking in a general way, not necessarily about the case in which you're all about different. In almost some ways, you're establishing some rules or some guideposts that you're going to later come back and use uh to impeach you uh for bias standpoint.

SPEAKER_00

Trevor Burrus, Jr. And and you know, sometimes they can't help. I mean, they've if if they want to appear to be um a uh impressive sound expert, they're going to agree with no bias. And well, are you gonna look at only some of the facts? Are you gonna look at all of the facts? Well, of course. All of I mean, have you ever heard of people who look at selectively at the facts? Oh no, I wouldn't do you would never they're just setting up the standard, and you already know what you're gonna do with their answers, because you can read their report and their testimony if they gave any.

SPEAKER_01

We can see where their flaws are going to be based upon this general to begin with.

SPEAKER_00

There's an example like that in the dynamic cross book. Uh yeah.

SPEAKER_01

Well, let me let me pull you back a second because I we've talked about some some training and maybe this relates to it, but you also said your your wife is a uh a language specialist, speech pathologist. Um one of our other guests uh that we had on uh Joe Bugney, an attorney from Madison, noticed here on my uh shelf a bunch of books from David Foster Wallace. He's one of my favorite authors, and he pointed out to me that I was missing the book Quack This Way. Uh uh a book uh about uh David Foster Wallace and Brian Garner who talk language in writing. And Brian Garner is a famous uh legal writer who wrote a book uh with Supreme Court Justice Scalia on how we should write. And there was something in here that just struck me as uh uh similar to you with this yes-no method that we wanted to talk about. And so I'm just gonna read a portion of this, all right? So uh Garner asks Wallace uh why children are taught not to begin sentences with conjunctions. And Wallace says, Well, teachers have a larger agenda, they're trying to beat out of students certain habits, therefore they say, Don't do this, it's nothing but trouble. When the truth is, you're probably gonna want to do the other thing some of the time. But let we do Have three hours to sit down and talk to you for three hours as a third grader about the times when adverbs are okay to use in this manner or when conjunctions are okay to use in this manner. And Foster Wallace says, Well, it would have been nice if she would have said, For now, don't do it. Later on, as part of your lifelong apprenticeship, you're going to learn there are certain adverbs, or in our case, certain manners that are in fact graceful and better ways to do things. So in language, when we teach children language, when we teach them how to write, we teach third graders rules, but as they get older, we expect them to be able to know when the rules don't apply. And I feel like for whatever reason, maybe it's because of age, when we're teaching lawyers, they're 24, 25, 26, they're educated, they're smart, but they're really third graders in law.

SPEAKER_00

Well, the problem is that they are third graders when it comes to trying cases. So we need to give them these rules. And there's nothing wrong with when you're just coming out of the gate having those rules. Trevor Burrus, Jr. No, absolutely. And like I say, I mean, they can be extremely helpful later on, too, because it's the fastest way to get to a point many times.

SPEAKER_01

Sure.

SPEAKER_00

It's just that because you shouldn't try and develop dynamic cross-examination in the first year of your practice doesn't mean that you should be unaware of it. And it doesn't mean that by the second or third year you shouldn't be identifying opportunities where you could use it. And and then and then you're gone. Then you're gone.

SPEAKER_01

Wish we had back was you back teaching Dynamic Cross. Because as I as somebody now who is still always trying to develop my cross-examination, we have so many programs that are out there that are wonderful for attorneys that have one to five years of experience, maybe even eight years of experience. But some of the stuff in the Dynamic Cross book, this is something that even 20-year attorneys, 30-year attorneys, we can still be developing and growing on. But there's other than my reading the book in the in the individually here in my own office, there's not these same workshops, the workshops to do. What are your how do we get to that place?

SPEAKER_00

Well, um one of the last things I did in uh Alaska when I uh was out of cases and I knew I was going to be retiring, um, was that I held uh dynamic cross-examination week sessions, week-long sessions for however many lawyers, I'm thinking there would be at least six, maybe eight.

SPEAKER_02

Okay.

SPEAKER_00

Uh and that meant that I had to uh find witnesses and arrange to have them available and all the rest of it. And we'd spend it was it was a fascinating process. Uh after the first day, there was a lot of grumbling. From the attorneys. Yes. Can't do anything. I only lost one person, though. I must I must have run four or six weeks of these. Only one person left. Uh the second day, where uh we're still talking about the method and examples, uh and they're just starting to try it themselves, uh there was still some mumbling. By the end of the third day, there was genuine excitement. And by the end of Friday, they couldn't wait for court the next Monday to go and try all these new methods. Because now they saw how it worked, now they had done it themselves in a setting where nobody's life was at stake.

SPEAKER_01

And uh, you know, how much do you think is important? Yeah. How much you were talking about at PDS? They have this six to eight week training method, right? Right. And that's unique to public defender systems or when I was there in the 70s. Uh you know, I again I don't know. I'm happy to be proven wrong, but I I I I don't know that a lot of those uh public defender uh services have the ability to do that. They don't have the resources, whether it be uh Actually everybody has the resources.

SPEAKER_00

I did manage to get uh two-week program, the first ever in Alaska, uh started before I left. Wonderful. They would only allot two weeks, which I said wasn't enough, but at least we had that, and and uh they had a training director who was supposed to uh keep that going. But the the bottom line is you're taking these people out of service for six weeks. Once you do that one time, it catches up with itself. It's like you know, they're coming in now and they're doing a better job and they're enjoying it more, and everybody is gonna be more successful and less fearful. Uh and all it took was a dislocation of the first group. You also have to do your hiring in a way that uh you have one or two groups a year so that you can have a training period. Sure. So, but you know, and it doesn't matter what your resources are, your resources are going to be the same except for that period, and that period of training.

SPEAKER_01

Yeah. How much do you think, you know, like I said, uh Coleman put in your book about the comfort level of tourneys, right? And obviously, I would imagine the comfort level is oftentimes based upon the training, the the training that we do. So it would seem to me, logically, then, that like if we make give more training in dynamic, we make people more comfortable with the dynamic crosses, that's now all of a sudden we're going to be able to do that.

SPEAKER_00

There's no doubt about that. And the failure to do so, this is this is the sad thing. The failure to do so in criminal defense law leads, and it doesn't take five years, it can take a couple of years, leads to a resentful feeling by the lawyer towards the client because I lost your case because you had your case. Sure. And now I'm a failure, you know, and it's your problem. We never permitted any, and I've never permitted in my presence, any bad mouthing of clients or making jokes about clients or anything like that. I mean, if if you want to be that way, go and work for the prosecution. That's where that's where most people like that do go. They want all the odds in their favor, they want the judge in their favor, they want, you know, society in their favor, you know. If that's if that's what you think you should do, then go and do that. You know.

SPEAKER_01

I mean, it really comes down to I think the um the quote that you had said before that's in your maxims, but I know uh your friend Rick Friedman put it in his book here. Um, and because it's just it's a such a wonderful quote, and I have it, I have it written down on one of my cards here, right? Uh your words, every human being deserves at least one other human being on their side. The more reviled and despised, the more they need and deserve at least some human connection. I fight for the humanity that is within everyone. I insist that it be respected. Right? Our dignity and humanity always needs to be recognized. Those are your words. And that that this podcast is called Sanctuary in the Jungle. And we've talked a little bit about sanctuary, you and I have off record, but to me, that's the essence of sanctuary, right there. Yeah. Those words that you that you've shared. And uh because of that, you need to take some risks.

SPEAKER_00

Yeah. Well, absolutely. And you know, they need to be intelligent risks. And on the other hand, once you start doing it and getting used to it, you find out that really it's not that risky at all. You know, you become comfortable with a different way of asking questions, and then you can intersurse both. Sure. And and then at that point, you basically are getting where you want to be.

SPEAKER_01

Yeah, I mean in your book you you lay out the different ways in which you can do it. And even though it's not yes-no, you know, I think you have uh all types of other methods, right, that you can use, you know, where uh even as we go through here, you're uh restricting the witness to one subject, right? Yeah. You're developing.

SPEAKER_00

I never understood why that wasn't done. I mean, there that takes a leading question. Sure. Okay. Okay, sir. I am now going to ask you not about what happened at the time of this so-called robbery. I'm going to ask you about what you were doing between lunch and two o'clock that afternoon. Do you understand the area I'm asking you about? That greatly reduces the likelihood that the witness is going to go running off into some detrimental uh outburst or whatever. And you use a leading question to do it. I'm going to ask you some questions about safe to proceed.

SPEAKER_01

So I'm going to ask you some questions about muskie fishing on the Lake de Flambo, Lake de Flambo. Right? And so if you go off talking about deer hunting in Montana, I can be like, no, Jim, we're over here.

SPEAKER_00

And you know, the judge knows as well. It's helpful to the judge, because if the judge is called upon, a lot of judges will reflexively uh sustain objections by prosecutors. You know, if if you if uh the prosecutor objects to um something being beyond the scope or something like that, if you've set the scope and identified it and the witnesses accepted it, your likelihood of winning on an objection is better.

SPEAKER_01

Yeah, absolutely. One of the other things that I found, I think you talk about it in here, but uh I may have just intuited from other times that you and I have talked, is if you can do that with an ESL, and you can put some of the words that they've set up there so that anytime they go off script, off you're like, nope, we're we're talking about this, and you can almost just point to the ESL as a as something that allows you to, as you say here, right? You're we're talking about this one subject. I wrote the subject down on the board. Let's talk about this. Right. Um, so again, that and that gives you a safe zone, right? Yep. And what I've noticed part of this practice is it's going to be different with citizen witnesses as opposed to police witnesses, as opposed to expert witnesses, the where you move on the continuum between yes, no, and dynamic. Sounds like you disagree.

SPEAKER_00

I think I think what I'm gonna say is uh although it would be nice to be able to have categories uh and say more one than the other here, that it's not necessarily gonna follow. I mean, you can have a civilian witness with an enormous bias. Sure. You know, uh one that's not been even disclosed before examination. Uh that person uh is a person that you may need to use a lot of dynamic cross-examination with. Experts in general, a lot of the questions might be yes-no questions when they're technical questions. But the construction or deconstruction of that witness part isn't gonna be phased by the fact that they're an expert.

SPEAKER_01

Yeah. And maybe really, you know, trying to do some self-reflection here. Maybe it's really just about my comfort. Obviously, I'm more comfortable, probably because I feel uh it's my world when I'm cross-examining a citizen witness, and a police officer is gonna feel more comfortable in that witness chair, or an expert's gonna feel more comfortable.

SPEAKER_00

That's an interesting thing to say. I have always thought that uh police witnesses were easy witnesses to examine. In some ways. Because they're so predictable. They're totally predictable. You can, you know, you can look at their report and you can hear on direct where they've stretched things for the prosecution that's not even in the report, and now you know everything you need to know about who this officer is. And you you could do it like we uh uh mimicked earlier on an expert wit witness with a police officer. Sure. You know, let's talk about your report. Why do you bother writing a report? Why is it important to write a report? You know they're gonna they're gonna validate their own. They're gonna validate their own report, and you know, and I I take it that at least any possibly important fact or observation will be in your report, you know, and and like that. So I I I'm not I'm not a big one for categories. I it's more one for taking the witnesses as they come.

SPEAKER_01

Yeah. Well, I could go I I could talk for hours about the technical parts of dynamic cross, but I want to uh focus on move on a little bit from that, and you and I can do that perhaps at a at another time, but some of your maxim, you know, this maxim that you already talked about um with the the the dignity um that humans uh have. Tell me about when you first started out doing this work and your family, how did your family feel about you and and the work that you're doing, even though you come from a background in which clearly they see everybody, but you got some pushback initially from some people you love. Well loved you.

SPEAKER_00

I'm not so sure it was pushback as hope hope that there would be a change. My dad used to refer to me when I came home uh from DC and and uh we met some of it as friends or colleagues or something, as my son Jim, who works for the government in Washington, D.C. And then I would stick out my hand and say, Yeah, I'm a assistant public defender. Yeah, yeah. So um did your grandpa Yeah. He th I can't uh remember the exact date, but I had been a lawyer, and um he w he lived uh in Evanston, Illinois. He'd been a um a Presbyterian um uh theologian. Okay. So we had talked about uh the Bible quite a bit when I was growing up, and then I visited him, and he was at this stage an old man, he wasn't working anymore, and uh crime was an issue in Chicago. Sure. And he was afraid. And he said, uh Jimmy, I don't understand how it is that you uh are representing these people, you know. I mean, the crime is terrible. I said, Grandfather, I think I'm doing it because you taught me to. What did he teach you? He said, What do you mean? And I said, Well it's in it's in the New Testament, uh something about even as you do for one of these, the least of these my brethren, you do unto me referring to Christ. And he got this look over his face and understood that uh that was an apt uh quotation. I think it's from Matthew, I could be wrong. Uh but in any event, uh about uh a month later, I got a book in the mail called Attorney for the Damned. And it was closing arguments and speeches of Clarence Darrow, sure, who had grown up in Chicago at the same time my grandfather had. And uh and he wrote in it uh something uh he wrote uh um the Greek word for advocate. And he says, You are an advocate, this is yours, you you speak for another. Uh and then he put in some more Bible verses, and then he signed it senior partner.

SPEAKER_01

Love it, love it. We've got a copy of Attorney for the Damn, right? Attorney for the Dam on our bookshelf here as well. I don't have the wonderful inscription from from from grandpa, but the but that's okay. Um there was a there was a time uh when you left the PDS right the what 1986 they did a celebration for you and and uh they gave you a gift. Let's see what that gift is.

SPEAKER_00

And the background on this is like I mentioned earlier about the hug your lawyer. There were all these t-shirts that have gone around at various NACL type events that say, uh, have you hugged your lawyer today? Okay. Well, this is what the shirts that were distributed at my going away party said. Have you hugged your client today? And that's a picture of you hugging your client. Yeah, I'll tell you about that in a minute. And here's here's my effort at an emblem. Uh no, no prison, no jail. So that was on the front page of the Washington Post. It was a horrible, horrible case. Uh my client was 50 some year or 60 some year old man. He was accused of stabbing to death the daughter, the two and a half-year-old daughter and the babysitter of a couple of DC police officers. And there was really no evidence against him except he confessed. And it was the first videotaped confession that was admitted in Superior Court, the first one that the police, I think, had done. And um he was going into alcohol withdrawal, obviously, through the questioning, and made statements, claims of injuries he'd inflicted on the child, which were categorically false based on the autopsy photos and the medical examiner's test testimony could not have happened. Okay. Um trial, the motion to suppress hearing lasted a month. Wow. I had a neurologist that I'd found who got involved and subsequently lost all his government contracts because he had testified for the defendant in this case. Um the judge let most of the confession in uh enough enough for him to be convicted. After he was convicted, the trial took a whole uh took a whole month uh after that. Uh the paper said that the jury reported that they were split six to six at the beginning, but then degenerated into guilt.

SPEAKER_01

Ugh.

SPEAKER_00

So this is heartbreaking. So anyhow, so I I I put my arm around this guy, and it ends up in the paper. I I actually think the arm around the client was probably at the sentencing. Um and the judge that I appeared before is outraged that I put my arm around the client and the judiciary public defender wire back and forth to the courthouse, if you try that in my courtroom, blah, blah, blah, all this other stuff. And I'm just saying, he's gonna die in prison from two life sentences, you know, unless his appeal goes through. He needed a hug. Yeah. He needed me to stand up for his humanity. So that was you know, even that's the ethos.

SPEAKER_01

That absolutely the ethos. So, you know, that's what. Why do you think that is? I mean, you know, you you represented him, dude, you're you know, for for moral reasons, for legal reasons. The process resulted in him being convicted. Not the result you wanted, but apparently the result the judge or the prosecutor wanted. Undoubtedly. Um and yet they're still mad at us just recognizing their humanity that they're mad at you in that moment.

SPEAKER_00

Yeah what why do you think that is? I personally think that for many judges they have to feel that way so that they don't have to look into themselves. Because it's and grapple with the amount of suffering that they that they create. Sure. You know? I mean it's hard. Especially in DC where prison sentences were. You know, I've heard of some of these sentences in New York and even in Wisconsin that seemed awfully light to me. I mean, if you were convicted of murder, you were going for life. Ugh. I mean, no doubt about it. There was no death penalty, thank God, but uh uh very heavy sentences.

SPEAKER_01

So basically, your recognizing the client's humanity in some ways affected the consciousness or the conscious or the guilt of other people who were now going to need to do something to this human. That's my guess. Um well this has been fantastic, Jim. I really appreciate it. Thank you so much. Like I said, the your books, they changed my career. I still, they're my go-to uh any time that I have a a trial, and I'm hoping to continue to build off of those because as you say, it it never ends.

SPEAKER_00

That's right. That's right. And I thank you very much. Uh the whole reason I I guess I should say that when I retired after 30 years of murder, 30 years was enough, and we came back to northern Wisconsin uh largely because the intensity of the focus that was necessary and the effort uh both physically and mentally was so great that I owed my wife and boys more than I can ever repay them. Sure. And so I just decided I'm not gonna keep going. I've I've done what I could do, but then I thought a couple years later I really ought to write these books because at least it seems to me that what they're saying hasn't been laid out quite so clearly and uh usefully before. And the fact that you have found them to be helpful makes me just feel tremendous.

SPEAKER_01

If you're a criminal defense attorney out there right now and you haven't got those books, you need to get those books. You will save clients' lives. So thank you, Jim. Appreciate it.

SPEAKER_00

Thank you, Aaron.

SPEAKER_01

Thanks for listening to Sanctuary in the Jungle. This episode was brought to you by Nelson Defense Group and made daily. Subscribe to Sanctuary Now and never miss another episode. You can also sign up for our newsletter on our website and follow us on social media for new bonus content. We'll see you next time at the library for another episode. Until then, stay strong and carry the hope.