What is in the name?...

As April 24th, the Armenian Genocide Remembrance Day, is fast approaching, it is appropriate to ruminate on the origins of the word 'genocide.' The word 'genocide' did not exist until 1944. It was invented by a lawyer named Raphael Lemkin, a Polish Jew who fled the Germans during World War II. Genos is the ancient Greek word for the 'tribe,' and -cide is a suffix that means killing. It was his term to describe the barbaric 'crime without a name.' His focus was on the idea that this 'crime' was the destruction of entire peoples, not just a number (even large) of human beings. When in 1921, Soghomon Tehlirian shot and killed Talaat Pasha, one of the masterminds of the Armenian genocide, in Berlin, Raphael Lemkin began his campaign to have genocide declared a crime. Allegedly Lemkin as a student asked his professor why Talaat Pasha had never been prosecuted. When he was told that there was no law that technically prohibited states from killing their own nationals, he was shocked, "It is a crime for Tehlirian to kill a man, but it is not a crime for his oppressor to kill more than a million men? That is most inconsistent."

It was Lemkin's efforts that made 'genocide' an international crime, codified first in Nuremberg indictments and later in the Convention on the Prevention and Punishment of the Crime of Genocide. The definition of 'genocide' legally is very different from other crimes against humanity. 1) Genocide is a specific intent crime, unlike other crimes against humanity, which require only general intent. 2) Genocide requires an attack on specific protected groups-- racial, religious, national or ethnic. Crimes against humanity merely require an attack against civilian populations, even if these are not protected groups. 3) Genocide requires intent to destroy the protected group as 'such.' Lemkin's theory was that destruction of a group, such as a nation, is a profound loss to the humanity and thus, is a crime above all crimes.

"Nations are essential elements of the world community. The world represents only so much culture and intellectual vigor as are created by its component national groups. Essentially the idea of a nation signifies constructive cooperation and original contributions, based upon genuine traditions, genuine culture, and a well-developed national psychology. The destruction of a nation, therefore, results in the loss of its future contributions to the world." "Our whole heritage is a product of the contributions of all peoples. We can best understand this when we realize how impoverished our culture would be if the so-called inferior peoples doomed by Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a Dvorak; the Greeks, a Plato and a Socrates; the Russians, a Tolstoy and a Shostakovich." [Raphael Lemkin]

The distinctive characteristic of the 'genocide' from other international crimes is very important. It was the hatred of a specific group, 'Armenians', by Turks that fueled and drove the annihiliation of 1.5 million of Armenians. It was the targeting of a very specific group, 'Jews,' that resulted in the Jewish Holocaust. It was also the targeting of Tutsis by Hutus that was the force behind the Rwandan genocide. It is a very specific intent, to exterminate a very specific group of people. That factor elevates and distinguishes genocide from the rest. Why is it a 'crime' above all crimes? By its nature it sounds unbelievable. How can a group of people dare to even contemplate to exterminate another group of people! It assails the very essence of humanity... It is so antithetical to the moral 'code' upon which the humanity is established that one cannot comprehend it, nor tolerate it! Well, of course, killing of a single human being is by itself inhuman and beastly.  Wars are crimes by their very nature... In fact, under international law an armed conflict is acceptable only for self-defense! The philosophical distinction of the 'genocide' is in the idea that this crime is targeting a group of people for its destruction... The idea of wiping out an entire 'nation' is mentally and emotionally abhorring. That is the reason Lemkin was so driven to crown this crime with a special legal meaning. The goal was to make it an international crime-- its commision with severe legal consequences, i.e. prosecution by international tribunals. The magnitude of the act of extermination of a single group is such that indeed requires a special recognition in the eyes of the world community. It has received that special meaning and since 1945 the word 'genocide' has achieved a very special and elevated status in the hallways of international psyche... The crime itself preceded the legal term invented to describe it... Unfortunately, it took the world a Jewish Holocaust to coin and recognize the Armenian genocide... Alas, the awe that the very word instills in the minds of people, did not prevent occurrence of genocides afterwards...

Convention on the Prevention and Punishment of the Crime of Genocide: 

Article I: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.
Article II: ... genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.

The most forceful words to me, among others, are in Article I: 'prevent and punish'. That should be the goal!

For more read here.

The surreal task of 'cross-examination'...

A lot of lawyers and scholars have written on the art of cross-examination... Most have agreed that even though cross-examination is an 'art', the techniques can be learned and mastered by almost everyone... I think, along with the closing argument, it is absolutely the most important part of the trial... I knew when I lost or won a trial finishing a cross-examination of the crucial witness... You just know it... But it is a surreal experience... I really call it a 'conversation' by a Socratic method. You are having a 'conversation' with the witness on your terms... Your power and your imagination have to be so strong that you can guide the conversation and shape it in the direction you want!!! I do believe, it involves a lot of artistry... Control the witness? Hmmm... That is certainly the goal... Lead? Yes! Before you even start,  you need to know exactly where you are going, why you are going... But the details and the curves on the road is all that matters... Usually my cross-examination has been of very hostile witnesses, officers. It turns into a duel sometimes... 'Officer, if what you just testified is true, I would like to bring your attention to page 5 of your report, where you said exactly the opposite. You testified earlier that you are trained to write all material and significant facts accurately and fully in your report... '  I rarely have cross-examinations where judges, prosecutors and officers do not get angry... It simply amazes me... Almost always I get a prosecutor making faces, judge getting angry and officer wanting to tear me apart... This is when I accomplish something... When I don't accomplish anything, it is because the DA is screaming 'Objection' in anger and judge sustaining it in anger... I ask for grounds for objection, the judge adds them for the prosecutor... Everyone is in a highly anxious state of mind, everybody wanting to end the experience of witnessing my cross-examination... Then they resort to personal attacks, trying to stop me any possible way, 'Counsel, your question is unintelligible.' Then I cut my question into three pieces in plain vanilla English and serve it on a silver platter to the officer... But they are never quite happy with anything I do.

Why? Because I go there with a plan, with a map... I have different scenarios of possible answers... The main thing is to make sure that the witness does not have a way out of the corner you are trying to set him up to. You have to lock him! If you know what you are doing, you will lay the groundwork with the witness before you get to the main issue you are getting to. This is so when you are at the destination, he doesn't have a safety valve to escape from there...

For example:
Q: Officer, when you came to the room, you saw the purse where you found the drugs, laying on top of the bed, correct?
A: Yes.
Q: Do you recognize that purse on this photo?
A: Yes.
Q: Please circle that purse for me.
Q: Was there any other purse in this room with drugs inside?
A: No.
Q: This was the only purse with drugs inside?
A: Yes.
Q: When you entered the room you saw this laying like this on top of the bed, like it is depicted in this photo?
A: Correct.

When that officer testifies on redirect that in fact the purse with drugs was found in another purse (which you anticipated), you come back and hit him hard with his earlier testimony that the same purse was laying on top of the bed as it was depicted on the photo when he entered the room. It is the most fascinating experience when you get the officer admit that he had been 'mistaken' in his testimony... Hmm... Mistaken? The more appropriate characterization is 'lying,' and 'falsifying.' Officer, you won't get away with that with me...

In one of my DUI cases, a client was charged with driving under the influence of legally prescribed medications, very strong painkillers, including Hydrocodone, Benzodiazepine, etc. The expert for prosecution testified that the level of drugs found in the bloodstream of my client on the day in question was lethal, highly toxic and therefore, it was his opinion that the client was driving under the influence of drugs. Most importantly, he just assured the jury that in his thirty years of experience he had never seen that dosage of drugs in someone alive. He said, 'lethal' several times in his testimony. I started cross-examination and had the jury laugh with me:

Q: Mr. ... you heard my client's doctor testify that he had been presribing the same dosage of drugs to her for about 20 years, didn't you?
A: Yes, I did.
Q: Do you have any information to make you believe that on the day in question she misused any of the prescribed medications by her doctor.
A: No.
Q: In fact, you heard from her doctor that the amount of drugs found in her bloodstream on the day in question is consistent with the prescribed dosage allowed to her.
A: Yes.
Q: You testified that amount is lethal?
A: Yes.
Q: You are sure about that?
A: I am positive!
Q: Well, Mr. ..... if that amount is lethal (pause), she is sitting right there in the courtroom... (pause) She is alive?...  Do you see her? (I turned to my client with a surprised smile on my face.)
A: ..... (He simply didn't have an answer to that, while the jurors started laughing with me and my client.)

This was one of the most hilarious moments I have ever had! The expert after that simply did not know where to look and left the courtroom with a red face and utterly confused! He lost all his credibility and the jury hung not believing the prosecutor's expert...

It can't always be pleasant though.  You can have a witness that outsmarts you because you don't have a clear plan or goal... A witness may simply refuse to answer your question, can give evasive answers, etc. I have cross-examined officers who would never give a straight answer to any of your questions. At that point you have to balance your interest in accomplishing certain things through that witness against your interest in not looking like an 'idiot'  before the jury. They will hold it against your client if they believe you are an 'idiot.' The witness may very well drive you to the corner if the answer is not what you were looking for! That can happen! Ooo... You have to shut up and sit down without showing your frustration to the jury! 'No more questions, thank you!' And smile... Incidentally, judges don't like even when I smile. I had a judge tell me in open court in the presence of the jury, 'I don't like that grin on your face. Don't have that expression when cross-examining!' I couldn't help smiling to that! All of a sudden, you can be found in contempt of court for 'smiling,' literally!

The problem is that you get so caught up with your plan and theory and you get so angry that the witness is not giving you the answers you wanted, you can't disengage and you want to fire all your bullets! It becomes very personal to you! You are so invested that you can't let go! It is very dangerous because then it becomes all or nothing and you may lose all! It is like charging your cavalry without infantry support in the face of oncoming artillery fire! That is reckless! (Remember the 'Waterloo'). Caution dictates to draw a line and withdraw when you are realizing you can't accomplish much with that witness... But before you draw a line, you must make sure the jury sees that you are trying to get important questions out there and the witness is refusing to answer! The jury wants your questions answered too and most probably will get frustrated with the witness too! Then in your closing argument you use the witness' evasiveness and unwillingness to give a straight answer to your benefit! 'Ladies and gentlemen, didn't you want to hear why the officer decided to do x or z... I asked him all those questions... He didn't want to give a straight answer to any of those questions! Why? What do you make of that? Well, because he is afraid to provide an answer for you to judge clearly as to the reasons of his behavior... How can you believe this officer if he doesn't want to answer very logical questions here in court under oath?'

So, you can use a bad witness to your benefit too, but only if he had not sunk your ship... You have to make sure a witness does not make you sink... If you know what you are doing, you don't go into areas recklessly with an adverse witness... Your first goal is to accomplish something through the witness... If you can't, move on...

The right to cross-examine is very important to me. I take it very seriously! In one of my trials, when I was impeaching the credibility of the officer by his written reports, the DA was consistently objecting on various grounds, the judge was sustaining, I finally asked for a sidebar! I was in a fury. I told the judge outside the presence of the jury, 'Your honor, you are not letting me to cross-examine this officer and impeach his credibility. You are denying my client a fair trial!' I laid out for the record the areas where I was trying to go into and the judge was not letting me... When I repeated, 'I want to cross-examine this guy...' several times, the judge finally gave up on me and said, 'Do it!' It was hilarious. We went back and I finished the cross-examination... But I will never forget that moment. I simply did not expect him to say that! I thought he was going to say, 'Counsel you are going into improper areas. Under 352 I am going to limit your cross-examination.'

It is definitely a battle you have to win in order to have a chance at winning the war! I have to say, it is not magic, yet it does entail a certain amount of 'magic.' Sometimes I myself don't believe what I accomplish! I go home and think, 'How did I do it?' I really can't explain... Probably it is a combination of preparation, passion, persistence... When you do it right and when you succeed, it is the most thrilling experience an attorney can live for!