Ethics

[posted by John Steele]

The horrific fire, which killed over 140 garment workers, led to workplace safety laws and to the rise of unionization. The subsequent trial is sometimes discussed in legal ethics circles, both because of the ethics of defending the owners (who were certainly unpopular and were possibly aiders and abetters of human death) and because of the issue of witness preparation.  The story of the trial was given a spin by Irving Younger's famous speech, "The Ten Commandments of Cross-examination," but in that speech Younger somewhat embellished the story of the actual cross-examination.  (Younger's speech is entertaining and instructive, so I'm certainly not faulting him for being a poor historian.  It's just that I often hear Younger's account retold and thought I'd do a post the actual cross.)

In Younger's account, the prosecution's key witness was "Sophie," and on direct examination she told a heart-stopping account of being trapped in the fire with her co-workers.  Defense counsel, Max Steuer, realized that Sophie's testimony had been memorized word-for-word and he exposed that by asking her on cross-examination to tell her story again -- normally a big no-no on cross-exam.  When her re-telling inevitably varied by some small word (e.g., "that" for "which") Steuer pounced and Sophie's response -- to retell that passage using the same word, "which," that she had used the first time -- demonstrated that she had indeed memorized the prosecutor's script.

In reality, the cross-examination was more subtle.  The witness, actually named "Kate," may well have been over-prepared and she did repeatedly use certain cliches like "curtain of fire," and that the manager was running around "like a wildcat."  While her repeated tellings of the story were not word-for-word identical, they were close enough to suggest that  something like a script was being presented.  Steuer exposed the over-preparation, the cliches (which presumably didn't sound authentic from Kate), and the amount of time the witness had spent with the proseuction.

For some reason, I can't find my copy of the cross-examination, but these two sites have reasonably good accounts of the trial.  Doing the actual cross out loud in trial advocacy class is well worth the time.

UPDATE:  In the comments, Steve Lubet was kind enough to offer this link, from Doug Linder's site, which has excerpts of the trial, including much of the cross-examination of Kate Alterman.