Cross-examination, trial lawyers say, is the greatest test of an advocate's skill. If so, then Moira K. Lasch, the prosecutor in the William Kennedy Smith rape trial, failed dramatically on Tuesday.
Although a trial is deadly serious business, it is also a show, a production in which each attorney is scripting and directing a drama for presentation to a select audience--the jury. And in a criminal case, the heart of the show is when the defendant takes the stand and confronts the prosecutor.
Faced with that key moment, Lasch was disorganized, artless and ultimately ineffective.
One can never know for sure how a jury is reacting to the testimony it has heard. But if the standard rules for effective trial advocacy are valid, then the prosecution in Smith's case would appear to be headed for failure when the case goes to the jury today.
The one major uncertainty for any observer outside the courtroom is that jurors often draw strong conclusions about truthfulness based on how people look when they are on the stand. And in this case, only those inside the courtroom have been able to see the face of the woman who is accusing Smith.
But given the standard for conviction in a criminal case--a judgment of guilt beyond reasonable doubt from each and every one of the jurors--the accuser's demeanor will have to have indeed been remarkable to make up for the weaknesses in the prosecution's presentation of its case.
Perhaps the best example of Lasch's difficulty came toward the end of her cross-examination of Smith. The implicit issue was Smith's character, a key element in any rape case. The point Lasch was trying to make was that Smith is a callous and indifferent person, precisely the kind of man a jury might believe capable of rape, and the subject was Smith's widowed mother.
"You say you chose to have sex on the lawn while your mother was asleep upstairs," Lasch demanded.
"Yes," Smith replied.
But then, rather than press ahead, Lasch paused. She thumbed through the ream of papers in front of her, looking for her next question. As she stood there, Smith was able to rehabilitate himself, at least partly.
"I'm not proud of it," he said.
The exchange illustrated one of the cardinal principles of how to cross-examine: The lawyer's job is to keep control of the pace and focus of the exchange. Lawyers are taught early on that a witness should never be given time to stop and think, to collect his thoughts or to bolster his story.
Only in that way can cross-examination serve its purpose as what the English jurist William Blackstone called "the great engine of truth."
Lasch's difficulty with cross-examining Smith in part illustrates the imbalance between the two sides in the case. As recently as a few weeks ago, Lasch was busy trying another case. Defense attorney Roy E. Black, by contrast, has been able to have lawyers in his office working full time on Smith's defense for months.
Moreover, the defense has had far more to work with. Because the police interviewed the alleged victim five times--an extremely unusual procedure that may have reflected the reluctance of Palm Beach authorities to bring charges against a member of the Kennedy family--defense attorneys had numerous statements from the woman that they could use to attack her testimony as well as a lengthy pretrial deposition from her. Prosecutors had no comparable statements from Smith, who was protected by the Fifth Amendment.
But many of the prosecution's wounds have been self-inflicted. Black's direct examination of Smith was a masterfully concise 45-minute presentation that laid out the defense side of the case clearly and precisely, ending in the strongest possible way with Smith's flat-out denial of the rape charge.
Lasch's cross-examination, by contrast, took more than three hours and appeared to have been hastily put together, more a list of questions than a carefully planned exposition. Twice, Lasch nearly caused a mistrial by asking clearly improper questions. And rather than work up to a conclusion, Lasch simply reached the end of her questions and stopped, allowing Smith to finish his cross-examination with the innocuous statement that he is indeed a medical student.
Even the timing was poor. Last week, Lasch put Smith's accuser on the stand in the late afternoon, giving Black the entire night to prepare for his cross-examination the next day. By contrast, Black arranged for Smith to testify first thing in the morning, forcing Lasch to cross-examine him immediately after hearing his detailed statement for the first time.
It is possible that prosecutors believed Black's earlier assertions that his defense presentation would last a week or more and were not expecting Smith to testify for several more days. If so, however, the prosecution's falling for such a well-worn defense trick would be the final indication that in this case, the two sides have simply been mismatched.