New Gloucester, Maine
My son is a young trial attorney. He’s a natural. To further his education, I recently gave him my well-worn copy of Francis Wellman’s “The Art of Cross-Examination”. It’s a classic and was recommended by my trial advocacy professor when I was in law school. Wellman cites numerous examples from famous and not so famous trials, giving credence to John Henry Wigmore’s assertion that “Cross examination is the greatest legal engine ever invented for the discovery of truth.”
As a young criminal defense attorney I witnessed its power. My client, an eighteen year old boy, was charged with first degree murder in the death of his girl friend. He swore it was an accident following a night of drinking at the neighborhood bar. The prosecutor saw it otherwise and was seeking life in prison without parole. The state’s key witness was the coroner who testified on direct examination that an intentional blow caused the girl’s death. I was convinced the coroner had botched the autopsy but he stuck to his opinion. It was only through cross examination that the truth came out. The jury returned a verdict of involuntary manslaughter and the young man was given a five year sentence.
Trial by jury is a foundation of our democracy. It is designed to reveal the truth to a panel of the defendant’s peers. But it’s not perfect. Over reaching prosecutors or incompetent defense attorneys can lead to a result that fails to reflect what actually happened. Complicit oftentimes is cross examination, that great engine of truth, which can be lethal when employed by the experienced, “win at all cost” lawyer or by his counterpart, the novice. Even when the playing field is level, the “real truth” may never come out.
I was thinking of this during a phone conversation this morning with Frank Cordaro. Frank, a former priest, founded the Des Moines Catholic Worker Community in the late ’70’s and has seen more than his share of trials. For more than thirty years he has exercised his conscience and been charged on numerous occasions with criminal offenses arising out of his protest activities. Like many of this country’s great dissenters, Frank has served jail and prison time in cells throughout the country.
Unlike others who break the law, dissenters want to get caught. They stage their actions before reporters and cameras, hoping the brief news coverage will somehow influence public opinion.
I once prosecuted Frank. He and other Catholic Worker protestors had crossed the line at the Iowa Air National Guard which deployed fighter jets to the mideast. Twenty were arrested but by the day of trial all had entered guilty pleas but one. Michael would tell the story of the international law violations that occurred as the result of the “no-fly zone operations” over Iraq conducted by our government.
The jury trial lasted five days. Constitutional law experts testified as well as National Guard attorneys and other personnel. The jury returned a verdict of trespass and the judge imposed a small fine. A judge, a prosecutor, a defense attorney, expert witnesses, a court reporter, a court attendant, and six jurors had been employed in order to obtain the result.
This past St. Patrick’s Day another Catholic Worker action was held at the Air National Guard, now a drone site. Seven were arrested and trial is set for late June. I’ve been asked to assist in the defense. A few weeks ago Frank began to consider another way for the truth to be told. He called this morning to continue the conversation. He wondered about mediation. I said I didn’t think there was anything to mediate and that a compromise wasn’t possible. We then talked about the use of a Peacemaking Circle. What if the seven defendants and an equal number of guard personnel sat in a Circle with a Circle Keeper present to facilitate the conversation? And what if, like a trial, the process was open to the public? Anyone could attend, sit outside the Circle, and listen to everything that was said.
There would be truth telling – by the defendant and by the National Guard. There would be no attempt to reach consensus. It wouldn’t be possible. The protestors abhor the use of drones. The Guard personnel, while perhaps sympathetic to the protestors, have chosen to join the Guard and have a job to do.
Each side has a truth. Each side is unwavering. But unlike cross examination, and its potential for abuse, the Circle process is a sacred one and honors each person’s truth no matter the chasm between.
And wouldn’t a great service be rendered by the sharing of these truths in the presence of the community at large?
– Fred Van Liew