Ben and Me_ From Temperance to Humility - Cameron Gunn [22]
Easier said than done.
Once, in the not-too-distant past, I prosecuted a trial in which two otherwise upstanding university students were accused of fondling a young woman in a dorm room. It was shaping up to be a typical he said-she said scenario. The victim, a young woman who was still haunted by the betrayal of two men she had considered friends, was a good witness. She told her story clearly and completely without embellishment. It was moving but uncorroborated. Given that I expected both accused to deny her allegations, I was unsure of a conviction. Certainly no one was going to break down and confess on the witness stand to this or any other crime in the real world.
Except that is exactly what happened.
When the first accused took the stand, he did what I had expected: He denied the accusation. The thing was, he seemed very uncomfortable in his denial. As he testified, there was something in his tone, or the cadence of his speech, that seemed wrong to me. I could not put my finger on it immediately, but as he spoke, I knew that something was different here than in almost every other trial I had prosecuted. Finally, it struck me. This young man wanted to be honest. He knew what had happened and he wanted to tell the truth and it was killing him to lie about it. This was very unusual.
I began by having the witness confirm innocuous details, eliciting admissions on things that had little significance. Then I sought some common ground on matters that were not very contentious but that did advance my case. As I wound my intellectual way to the real heart of the story, the allegation of a sexual assault, I ratcheted up the tone of the examination, building it like the crescendo of an opera. Finally, I could sense his defenses weakening, and I put it directly to the accused. Standing just a few feet away from him, I asked in my loudest baritone:
“You’ve heard what Ms. X. said. She said you fondled her breasts. And she was telling the truth, wasn’t she? She was telling the truth, and your denials have been lies?” There was silence for a moment. Even that might have been a victory in any other cross-examination. The accused looked down. He refused to look up at me or anyone else in the courtroom.
Finally, after what seemed like an interminable pause, he lifted his head and, barely above a whisper, replied, “Yes.”
So there I was. The one and only witness-stand confession of my entire career, and I didn’t know what to do next. A little voice said, “You’re brilliant! Now you’ve got him. Ask him another question. Get him to admit to something else. Make him tell you where Jimmy Hoffa’s buried.”
Fortunately that voice (which sounded exactly like Peter Lorre) was drowned out by a far louder, less Casablanca-like voice that said, “SIT DOWN AND SHUT UP.”
“Um, no more questions,” I said as I sat down clumsily. I didn’t know the significance of it at the time, but I was practicing Ben’s virtue of Silence. Anything else I asked was not going to benefit anyone. There was nothing else to say.
I’m not disclosing this because I’m looking for praise or a pat on the back. In fact, the manner in which I asked the question was at least ham-fisted and maybe even legally impermissible. I’ve disclosed this little snippet because during the week of Silence I got to use the lesson it reinforced.
There were, on that day as on all days, opportunities for the types of conversations that Franklin sought to eschew: a judge with a new car, the absence of a player at noontime basketball (who had been suspended for unsportsmanlike conduct during one of our league basketball games), and various other trifling conversations that were anathema to Franklin’s ideals. I avoided these topics as best I could. The real test, however, came when a friend confided her fears about the nature of her daughter’s marital relationship.
These, as you may have experienced, are dangerous waters. I never know if someone actually wants advice when they become confessional, or if they