The Art of Cross-Examination Hollywood Style
. . . if you're one of my NITA students, please take the Negotiation and Mediation Justice Survey here (3 minutes max I promise!)
The lengthy cross-examination was written by the man who brought you The West Wing, Aaron Sorkin. Do not attempt this in a court of law without a screenwriter by your side.
And just in case you think you're uniquely insecure, the brilliant Mr. Sorkin, who added, "you can't handle the truth" to the small pantheon of justifiably immortal movie lines has this to say about the process of writing:
"I love writing but hate starting. The page is awfully white and it says, 'You may have fooled some of the people some of the time but those days are over, giftless. I'm not your agent and I'm not your mommy, I'm a white piece of paper, you wanna dance with me?' and I really, really don't. I'll go peaceable-like."
THE SET UP
KAFFEE Colonel, when you learned of Santiago's letter to the NIS, you had a meeting with your two senior officers, is that right?
KAFFEE The Executive Officer, Lt. Jonathan Kendrick, and the Company Commander, Captain Matthew Markinson.
KAFFEE Yes sir. Colonel, at the time of this meeting, you gave Lt. Kendrick an order, is that right?
JESSEP I told Kendrick to tell his men that Santiago wasn't to be touched.
KAFFEE And did you give an order to Captain Markinson as well?
JESSEP I ordered Markinscn to have Santiago transferred off the base immediately.
JESSEP I felt that his life might be in danger once word of the letter got out.
KAFFEE Grave danger?
JESSEP Is there another kind?
KAFFEE holds up a document from his table.
KAFFEE We have the transfer order that you and Markinson co-signed, ordering that Santiago be lifted on a flight leaving Guantanamo at six the next morning. Was that the first flight off the base?
JESSEP The six a.m. flight was the first flight off the base.
THE SEEMINGLY INNOCENT LINE OF QUESTIONING SET-UP
KAFFEE gets a document from his table.
KAFFEE (continuing) After Dawson and Downey's arrest on the night of the sixth, Santiago's barracks room was sealed off and its contents inventoried. (reading) Pairs of camouflage pants, 6 camouflage shirts, 2 pairs of boots, 1 pair of brown shoes, 1 pair of tennis shoes, 8 khaki tee- shirts, 2 belts, 1 sweater--
ROSS Please the Court, is there a question anywhere in our future?
RANDOLPH Lt. Kaffee, I have to--
KAFFEE I'm wondering why Santiago wasn't packed.
THE EXTENDED MONOLOGUE-QUESTION THAT EXISTS ONLY IN MOVIES
KAFFEE (continuing) I'll tell you what, we'll get back to that one in a minute.
KAFFEE holding up a stack of documents.
KAFFEE Your honor, these are the telephone records from GITMO for August 6th. And these are 14 letters that Santiago wrote in nine months requesting, in fact begging, for a transfer.
(to JESSEP) Upon hearing the news that he was finally getting his transfer, Santiago was so excited, that do you know how many people he called? Zero. Nobody. Not one call to his parents saying he was coming home. Not one call to a friend saying can you pick me up at the airport. He was asleep in his bed at midnight, and according to you he was getting on a plane in six hours, yet everything he owned was hanging neatly in his closet and folded neatly in his footlocker. You were leaving for one day and you packed a bag and made three phone calls. Santiago was leaving for the rest of his life, and he hadn't called a soul and he hadn't packed a thing. Can you explain that? The fact is there was no transfer order. Santiago wasn't going anywhere, isn't that right, Colonel.
ROSS Object. Your Honor, it's obvious that Lt. Kaffee's intention this morning is to smear a high ranking marine officer in the desperate hope that the mere appearance of impropriety will win him points with the jury.
ROSS (continuing) It's my recommendation, sir, that Lt. Kaffee receive an official reprimand from the bench, and that the witness be excused with the Court's deepest apologies.
RANDOLPH (pause) Overruled.
KAFFEE (beat) Colonel? Jessep's smiling ... ... and now he can't help but let out a short laugh.
KAFFEE (continuing) Is this funny, sir?
JESSEP No. It's not. It's tragic.
KAFFEE Do you have an answer?
JESSEP Absolutely. My answer is I don't have the first damn clue. Maybe he was an early morning riser and he liked to pack in the nq. And maybe he didn't have any friends. I'm an educated man, but I'm afraid I can't speak intelligently about the travel habits of William Santiago. What I do know is that he was set to leave the base at 0600. Now are these really the questions I was called here to answer? Phone calls and footlockers? Please tell me you've got something more, Lieutenant. Please tell me there's an ace up your sleeve. These two marines are on trial for their lives. Please tell me their lawyer hasn't pinned their hopes to a phone bill. (beat) Do you have any other questions for me, counselor?
CIRCLING THE EVIDENTIARY WAGONS
KAFFEE Colonel, the six a.m. flight, was the first one off the base?
KAFFEE There wasn't a flight that left seven hours earlier and landed at Andrews Airforce Base at 2 a.m.?
RANDOLPH Lieutenant, I think we've covered this, haven't we?
KAFFEE gets the two log books from his table.
KAFFEE Your Honor, these are the Tower Chief's Logs for both Guantanamo Bay and Andrews Airforce Base. The Guantanamo log lists no flight that left at eleven p.m., and the Andrews log lists no flight that landed at 2 a.m. I'd like to admit them as Defense Exhibits "A" and "B".
RANDOLPH I don't understand. You're admitting evidence of a flight that never existed?
KAFFEE We believe it did, sir. (glancing at the paper, then motioning to the AIRMEN) Defense'll be calling Airman Cecil O'Malley and Airman Anthony Perez. They were working the ground crew at Andrews at two a.m. on the seventh.
ROSS Your Honor, these men weren't on the list. Rebuttal witnesses, Your Honor, called specifically to refute testimony offered under direct examination.
RANDOLPH I'll allow the witnesses.
JESSEP This is ridiculous.
KAFFEE Colonel, a moment ago--
CLOSING ALL OF THE DOORS OF POSSIBLE ESCAPE FOR THE WITNESS
KAFFEE A moment ago said that you ordered Kendrick to order his men not to touch Santiago.
JESSEP That's right.
KAFFEE And Kendrick was clear on what you wanted?
KAFFEE Any chance Kendrick ignored the order?
JESSEP Ignored the order?
KAFFEE Any chance he just forgot about it?
KAFFEE Any chance Kendrick left your office and said, "The 'old man's wrong"?
KAFFEE When Kendrick spoke to the platoon and ordered them not to touch Santiago, any chance they ignored him?
JESSEP Have you ever spent time in an infantry unit, son?
KAFFEE No sir.
JESSEP Ever served in a forward area?
KAFFEE No sir.
JESSEP Ever put your life in another man's hands, ask him to put his life in yours?
KAFFEE No sir.
JESSEP We follow orders, son. We follow orders or people die. It's that simple. Are we clear?
KAFFEE Yes sir.
JESSEP Are we clear?
AND IF YOU'VE CLOSED ALL THE DOORS, ASKING A QUESTION YOU DON'T KNOW THE ANSWER TO IS NOT EVEN BRAVE; IT'S EASY
KAFFEE Colonel, I have just one more question before I call Airman O'Malley and Airman Perez: If you gave an order that Santiago wasn't to be touched, and your orders are always followed, then why would he be in danger, why would it be necessary to transfer him off the base?
And JESSEP has no answer. Nothing. He sits there, and for the first time, seems to be lost.
JESSEP Private Santiago was a sub-standard marine. He was being transferred off the base because--
KAFFEE But that's not what you said. You said he was being transferred because he was in grave danger.
JESSEP (pause) Yes. That's correct, but--
KAFFEE You said, "He was in danger". I said, "Grave danger". You said--
JESSEP Yes, I recall what--
KAFFEE I can have the Court Reporter read back your--
JESSEP I know what I said. I don't need it read back to me like I'm a damn--
KAFFEE Then why the two orders? (beat) Colonel? (beat) Why did you--
USING THE WITNESS' "ALWAYS" AND "NEVER" STATEMENTS AGAINST HIM
JESSEP Sometimes men take matters into their own hands.
KAFFEE No sir. You made it clear just a moment ago that your men never take matters into their own hands. Your men follow orders or people die. So Santiago shouldn't have been in any dangor at all, should he have, Colonel?
JESSEP You little bastard.
ROSS Your Honor, I have to ask for a recess to--
KAFFEE I'd like an answer to the question, Judge.
RANDOLPH The Court'll wait for answer.
KAFFEE If Kendrick told his men that Santiago wasn't to be touched, then why did he have to be transferred?
Jessep is looking at O'KALLEY and PEREZ.
KAFFEE (continuing) Colonel?
JESSEP says nothing.
KAFFEE (continuing) Kendrick ordered the code red, didn't he? Because that's what you told Kendrick to do.
KAFFEE And when it went bad, you cut these guys loose.
ROSS Your Honor--
RANDOLPH That'll be all, counsel.
KAFFEE You had Markinson sign a phony transfer order--
KAFFEE You doctored the log books.
ROSS Damnit Kaffee!!
KAFFEE I'll ask for the forth time. You ordered--
THE WITNESS GOES FOR THE BAIT IN THE WAY THEY DO ONLY IN THE MOVIES
JESSEP You want answers?
KAFFEE I think I'm entitled to them.
JESSEP You want answers?!
KAFFEE I want the truth.
THE IMMORTAL MOVIE LINE
JESSEP You can't handle the truth!
And nobody moves.
JESSEP (continuing) Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the marines. You have that luxury. You have the luxury of not knowing what I know: That Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. (beat) You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You me there (boasting) We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. (beat) I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it. I'd prefer you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to.
KAFFEE (quietly) Did you order the code red?
JESSEP (beat) I did the job you sent me to do.
KAFFEE Did you order the code red?
JESSEP (pause) You're goddamn right I did.
KAFFEE Please the court, I suggest the jury be dismissed so that we can move to an immediate Article 39a Session. The witness has rights.