I apologize for posting this blog so late, but I really wanted to write this week on my mother’s reactions to Murder in Tombstone…which I could not do until she had gotten the book. But now, she has received the book at last, and last night we were able to finally discuss it.
Her first reaction, and the tidbit from the book that struck her the most, was simply the fact that cross-examination is new. “Cross-exanimation is kind of your only hope” to put a dent in the opponent’s case, she said, and that without it, “it is very difficult to try a case.” Cross-examination, and the ability to poke holes in shaky testimony, is one of the most important things a trial lawyer today has to learn, mom said, and so the fact that Tom Fitch was “the only guy who knew how to do it” gave the defense an immense advantage right from the start.
The second thing that caught mom’s eye is how the defense was able to present their case as a unified theme, while the prosecution was all over the map. “You simply do not try a case without a theme. It is Trial Lawyer 101,” mom said. “You do not walk into a courtroom without one, and every argument, every everything has to fit that theme, and at the end of the day that theme has to get you where you want to go.” The fact that the prosecution completely lacked a theme, a unifying, coherent argument, sabotaged it from the start. The prosecution simply could not present any evidence for why the Earps suddenly, on this day, decided to go shoot the cowboys, especially considering how opposed to their usual modus operandi lethal violence was.
Why was the prosecution so divided? Mom lays the blame squarely on the shoulders of Will McLaury, who was emotionally involved that he “lacked the objectivity to step back, and say ‘we have a pretty solid manslaughter case, but a pretty crummy one for premeditated murder.'” By focusing so much on obtaining the death penalty for the Earps, McLaury ensured that the Earps would get off altogether. “They never had premeditated murder,” mom commented, “so from the very beginning the prosecution was on losing ground.”
All was not lost for the prosecution, though, and it was possible that they could have changed course. “As a trial lawyer, you have to have the intellectual honesty to change course if necessary.” But Will McLaury, so fixated on avenging his brothers, simply could not step back and examine the case. “It’s the best example,” mom commented, “of why you don’t try a case for your family. You have to be fabulously objective to be a decent trial lawyer.”
It was interesting to me as I spoke with mom was how, despite being a former defense attorney, most of what she talked about concerned the prosecution. To mom, the story was some of how the defense completely demolished the prosecution, but for the most part the story was of how the prosecution completely bungled up their case. At the end of our conversation, mom summed up her thoughts, and her closing argument is damning.
“The prosecution was screwed up in the following ways: they were outgunned, I mean sometimes the lawyers on the other side are just better, and the defense council was just better. Defense council had training and experience in cross-examination and used it well, and the defense had a theme. Those things…will carry the day. And the prosecution, you know, outgunned, yes, but also inflexible. they needed to take the bad stuff that came out in the defense and use it, and neutralize it, and call more witnesses, and put on a rebuttal. They didn’t even try. You need to be flexible as an attorney and you need to be willing to hear what’s coming in and do something with it. Or go down fighting; you know, it doesn’t always work but at least you go down fighting. [Me: Instead of just watching it shoot past?] Yeah, they just watched. I mean, their rebuttal case was pathetic. That’s a ‘we’re not even going to try.'”