And the Sea Will Tell (91 page)

*
Enoki had earlier entered into evidence a copy of a later will, the probated will of Mac Graham (San Diego Superior Court) signed by Mac on June 26, 1973.

*
Another purpose is to elicit additional facts that will favor the questioner’s side of the case. Cross-examination is a valuable but dangerous art that is mastered by few, and this is why more cases are lost on cross-examination than won. Nonetheless, it remains, as one legal scholar observed, “the greatest legal engine ever invented for the discovery of the truth,” taking the place in our system of justice which torture occupied in medieval times.

*
Published in
Mississippi College Law Review
in Jackson, Mississippi, and
Criminal Justice Journal
, Western State University School of Law in San Diego.

*
E.g., Chief Justice William H. Rehnquist, in
Arizona
v.
Fulminante
, 111 S. Ct. 1246 (1991):…“The central purpose of the criminal trial is to decide the factual question of the defendant’s
guilt or innocence.” Jackson
v.
Denno
, 378 U.S. 368 (1964):…“there must be a new trial on
guilt or innocence
.”

†E.g.,
Texas Criminal Pattern Jury Charges, section 0.05, “Your sole duty is to
determine the guilt or innocence
of the defendant.”

‡See
Perkins on Criminal Law
: “Criminal Procedure is the formal machinery established to enforce the criminal law. It includes 1.) accusation of crime, 2.)
determination of guilt or innocence
and 3.) disposition of those convicted.”

*
This is not the forum to debate whether guilt or innocence should be the issue at a criminal trial. Many philosophical and societal considerations are involved. But since it is
not
the issue, as long as juries are told (along with the correct instruction) that it is, thousands of defendants throughout the nation will continue to be tried before juries who are misinstructed on the most fundamental issue at a criminal trial.

*
But on re-direct I would not have to put out brushfires like Jennifer’s salvage claim of the
Sea Wind
or her “stranded” remark, because Enoki had missed both points in his cross-examination. My gamble in not bringing them up on direct had paid off.

*
And an 1893 case: “It is very difficult for a judge to determine, in advance, what limitation should be imposed upon counsel, what period may be necessary to enable counsel to present, in the aspect deemed by
them
important, the case of their client.”

*
What I have just said may be difficult for the reader to believe, but unfortunately it happens to be true. (There is all the documentary evidence one would need to support this; namely, the trial transcripts.) One could give a great number of examples, but here are a few relatively recent ones. Three different authors comment on three separate summations for the defense. All three cases were sensational, nationally publicized criminal trials, and all three lawyers have not just regional but national reputations.
1. “He rose from the defense table, grabbing an unruly stack of notes. He spoke for less than forty-five minutes, but as I cringed in my seat, trying to follow his disjointed discourse, it seemed like a lifetime.”
2. It was “two hours of rambling, sometimes incoherent, and consistently repetitive harangue. He had not begun to cover most of the specific points he had intended to include in his argument.”
3. “It was generally agreed that his closing argument was remarkable; most remarkable was the fact that no two people who heard it agreed on what was said. The jurors’ faces showed not the slightest indication whether or not they were following his sequence of events.”

*
Throughout the trial, the judge had referred to the prosecution as “the Government.” In fact, the lawsuit was officially
United States of America
v.
Jennifer Jenkins
.

†Not
the normally used “until,” which implies it’s just a matter of time.

*
In summation, on key points, I usually cite and read to the jury the exact language of the judge’s instruction covering the point. When the jurors later hear the judge repeat the identical words I have quoted, it can subconsciously give my arguments on each point a degree of credibility, almost as if the judge is following me.

*
It may be too obvious to state, but whether or not Jennifer
actually heard
gunshots or screams had nothing to do with the issue of guilt. If she didn’t conspire with Buck to murder the Grahams, then of course even if she did hear shots or screams it would be irrelevant. She wouldn’t be guilty. But if the jury felt there must have been such sounds, and that Jennifer would have been
capable of hearing
them from the
Iola
, yet she said she didn’t, then her story about being on the
Iola
and not hearing anything would be viewed as a lie, and if she was lying, this would point to her guilt for the murders.

*
Little could I possibly know (or even wildly imagine) that just six months later in London, England, in an exact replica of a Dallas federal courtroom, and after nearly five months of preparation as intense as I’ve ever done for any murder case in my career, I would be “prosecuting” Lee Harvey Oswald for the assassination of President John F. Kennedy. The twenty-one-hour British television “docutrial” had no script, no actors, a real United States federal judge and Dallas jury, the actual lay and expert witnesses in the case, and a prominent defense attorney (Gerry Spence) representing Oswald.

*
The jury had heard testimony that it takes heat in excess of 1,000 degrees Fahrenheit for approximately four hours to cremate a human body. Buck Walker most probably did not know this.

*
The expert witnesses (in fields such as firearm identification, pathology, photography, handwriting, and neutron activation analysis) were from the House Select Committee on Assassinations that reinvestigated Kennedy’s assassination in 1977–79.