Edward Bennett William's Close Argument
Edward Bennett William's Close Argument
'OUS to
1t. The
text in
~torical
ursting
.sifying
to the
. up a
vere of
)W.
tvinced
ibvious
scene 1
merican
Persuasion
176
nen of the
weeks in
iers of the
1structions
: this case
all to the
and just.
to me to
:!nee, and
e instrucu, so that
Jecause I
:o you in
ogether
s going
-using
,ver the
: you for
the past
; and at
le.
in cirsearch
sand
illiams
,ver to
going
Many
.g that
make.
Most of the time you will get through it, because your plan of
attack gives you several places to fall back and gives you a good
ending no matter what happens.
And I know I speak for all the parties when I say to you
we are deeply grateful to you for your service.
I have never served as a juror and I suppose I never
shall, because I am a trial lawyer, _but I have always deeply
believed that it is the highest form of public service, that
it is the highest function a citizen can perform. It is the
most God-like function that you will ever be asked to perform in your lives, because you are being asked to make
judgments on a fellow human being.
COMMENTARY
Note the progression here. He thanks the jurors, without sycophancy. Jurors do believe their job is important. Even those
reluctant to serve come away with a sense of pride and a new
attitude toward service. In a celebrated cas~, jurors feel this sense
of pride more easily. Indeed, during voir dire you may want to
weed out those who are too eager to serve. You will seldom
want a juror who comes to the case with an agenda already
fix.ed.
In a case that has not attracted media attention, one purpose
of voir dire is to tell jurors just how important the case is-to
your client and to the justice system. You pick up this theme in
argument.
The final step in this progression is to speak of the "God-like
function," which one would do often in criminal cases but less
often in civil ones. This jury included deeply religious people.
Their faith may cause them to hesitate to "judge" another human
being. If you were not going to use this image, you could use a
softer one to the same effect: "The importance of this case is
shown by the very fact you are here. For all the most important
decisions in our society, in all disputes between individuals, or
between individuals and corporations, or individuals and the
government; we don't trust the lawyers, the judges, and the
bureaucrats. We trust you. We ask for people from the community to come and give up their time and render judgment."
Persuasion
178
first is 1
the Tre:
Jacobs<:
And
charge,
He ii
24th-,
Septern
Now
when l
burden
you, m
that Jol
He~
jurors t
by all <
that roe
ecution
a reasc
and to,
you m,
same tl
How
word
chos{
tion.
Unle
Connal
bargair
under 1
verdict
~
~
COMMENTARY
.I
1at
tice
1g
ntis
~y
d-
n-
at
m
1e
Persuasion
180
note
how(
not,:
point
This :
A~
a per
dusk
Tr.
usual:
ing ir
did n,
MR.
offered
to avoi<
misdee<
been 4!
bore wi
I say
den tha
justice,,
happen
Supp
nal con
told, oh
sequenc
lay culp
Have
scoundr
pate ot
today it
This is
though
X; the
lS is
'barthe
:) of
tion
1ext
with
)utset .
sand
ed in
rden,
tIIlent
irized
they
nited
, and
ment
:nder
~n of
of a
:able
:ores
t
the
that
Persuasion
182
First of all, let's look at Mr. Jacobsen, the man. The evidence has shown, members of the jury, that on February
6th, 1974, he was indicted. Normally it wouldn't have significance in a case that a witness had been indicted, but it
[ want
,ut Mr.
ut Mr.
falsify,
native
1ality
-aph,
I the
deft
.seThe
o be
rises
: )Ved
;vord
nony
ghed
com.sked
; told
lly the
nature
he evi!bruary
Lve sigl, but it
COMMENTARY
Williams is careful here. An indictment is not proof. Jacobsen is
still .presumed innocent of these charges. One cannot undercut
that presumption, for it is important to Connally as well.
Persuasion
184
at
it '
ha
th~
lip
me
We
WC
pe1
l
COMMENTARY
Is an indictment an admission by the government that certain
conduct happened? If so, this is evidence under FED. R. Evm.
801(d)(2)(D). The cases say that the indictment is usually not evidence in that sense, but that many other statements by government counsel, such as those in jury argument, would be. See
United States v. GAF Corp., 928 F.2d 1253 (2d Cir. 1991); United
States v. Salerno, 937 F.2d 797 (2d Cir. 1991), rev'd on other
grounds, 505 U.S. 317 (1992). When the government-or any
adversary-takes an inconsistent position, even through counsel,
this is a powerful subject of comment. We are not contradicting
the presumption of innocence here, only raking the adversary for
its own inconsistency.
of C
can
or a
con
but
rais(
trutl
des1
he jury,
e move
ling his
unds of
825,000
ner, Mr.
by Mr.
~nt said
:ertain
Evm.
ot evi)Vern-
e. See
Jnited
other
ir any
unset,
licting
1ry for
and to
lictment
e in the
m then?
ore the
money
is safe' Texas,
Persuasion
186
COMMENTARY
The characterization of perjury is a rich vein in the history of trial
law. The perjurer is, in one view, worse than the assassin, for he
commits his crime by sullying his oath to God. Williams evokes
the biblical tradition in the next paragraph with "false witness."
Of course, the "informer" in Irish literature is the most
despised . of creatures. And Irish advocates have given us the
richest rhetoric on the subject. In our play, WARRIOR BARDS (1989),
Kevin McCarthy and I put these words in the mouth of Daniel
O'Connell, the great Irish advocate, though in truth we took
them from the actual arguments of both O'Connell and his colleague John Philpott Curran. They are typical of Irish lawyers'
attacks on informers:
If it was not known by unfortunate experience, and
particularly in many recent instances, it could scarcely be
conceived that such abominable turpitude could find place
in any human being. It could scarcely be conceived, that
any being, imbued with a rational and immortal soul,
would deliberately come forward to forswear himself in
the a court of justice when if he is believed the life or liberty of the accused will be forfeited.
Look at him. He admits to treason and proudly carries
the pardon in his pocket. Yes, his pardon in his pocket, so
that he will not be executed as a traitor. And more, his
bribe-not yet in his pocket. Yes, yielding up the tie of
friendship, to watch the steps of his friends for the bribe
of government.
I have heard of assassination by sword, by pistol, and
by dagger; but here is a wretch who would dip the
Evangelists in blood; if he thinks he has not sworn his victim to death, he is ready to swear, without mercy and without end: but oh! do not, I conjure you, suffer him to take
an oath; the hand of the murderer should not pollute the
purity of the gospel: if he will swear, let it be on the knife,
the proper symbol of his profession!
a
s
C
I)
story of trial .
assin, for he
iams evokes
;e witness."
s the most
:iven us the
,ARDS (1989),
th of Daniel
.th we took
and his col'ish lawyers'
nee, and
arcely be
ind place
ived, that
rtal soul,
,imself in
ife or libly carries
,ocket, so
nore, his
:he tie of
the bribe
istol, and
dip the
n his vieand withn to take
ollute the
the knife,
Jr informit reward.
I speak of what your own eyes have seen, from the box
where you are now sitting; the number of horrid miscreants, who acknowledged, upon their oaths, that they had
come from the seat of government-from the very
Chambers of Dublin Castle [headquarters of British rule in
Ireland]-where they had been worked upon, by the fear
of death and the hope of compensation, to give evidence
against their fellows . Oh, yes, the mild, the wholesome,
the merciful councils of this government are perched over
catacombs of living death, where the wretch that is buried
a man, entombed till his heart has had time to fester and
dissolve, is then dug up a witness!
Persuasion
188
"ANSWER: Yes.
"QUESTION: Were you asked about money on that
occasion?
"ANSWER: Yes.
"QUESTION: Did you tell the truth about it?
"ANSWER: No, I did not."
At page 280:
"QUESTION: Did there come a time subsequently when
you testified before the Senate committee under oath?
"ANSWER: Yes, sir.
"QUESTION: Once again, did you lie?
"ANSWER: Yes.
"QUESTION: Did there come a time when you
appeared before the grand jury here in Washington for a
second time?
"ANSWER: Yes.
"QUESTION: Do you remember when that was?
"ANSWER: No, sir.
"QUESTION: Was it in January '74?
"ANSWER: I believe so.
"QUESTION: Did you testify falsely on that occasion?
"ANSWER: Yes.
"QUESTION: Were you questioned about the $10,000
which was in your safe-deposit box?
ppearance
about the
., I think
ring week,
;uit, Nader
y on that
::ntly when
~r oath?
Nhen you
1gton for a
vas?
::>ecasion?
he $10,000
"ANSWER: Yes.
"QUESTION: Did you say that the .$10,000 which was in
your safe-deposit box was the same $10,000 that you
received from Mr. Lilly in May, 1971, and you left it there
untouched?
"ANSWER: Yes, sir.
"QUESTION: Was that truthful?
"ANSWER: No, sir."
Now, you will all remember that Jacobsen went into
bankruptcy in June of 1972 .
COMMENTARY - - - - - - - - ,
Williams is turning the corner here. First, we have the government and Jacobsen admitting he is a liar. The specific lie Williams
chooses is about whether or not Jacobsen left the AMPI money
"untouched." Of course Jacobsen went on to say that in fact he
took the money and gave it to Connally. That is the problem
with many examples of turncoat testimony-the proponent can
claim that there is a simple change of story occasioned by nothing more than a desire to "come clean." Williams is going to
argue that Jacobsen lied about touching the money to protect
himself from charges of embezzlement, not to protect Connally.
Hence, the transition from lying to bankruptcy. He will now
show just how desperate were Jacobsen's financial straits.
Persuasion
190
lion, and I asked him about that, and he said, oh, well all
this had taken place in six months.
He had gone from plus $3 million to minus $8 million.
And then I showed him a letter and I asked him if in
fact he hadn't begun his bankruptcy in March, and at page
309, he said: "Yes, that refreshes my recollection."
Now, I'm not surprised that counsel for the government spoke for almost two hours this morning to you
reviewing the facts of this case without ever referring to
this document which is in evidence for reasons that you
will see.
COMMENTARY
These bankruptcy exhibits are "markers." Williams wants the jury
to remember them. He is handling, among other exhibits,
Jacobsen's bankruptcy petition and its attachments. These show
a detailed history of Jacobsen's finances during the months just
before his 1972 filing. The jury will remember these papers, and
ask to have them identified for them during their deliberations.
We were heartened when the jurors focused in a note on the
very payments that Williams is now discussing. Note that he
repeats the identification of the crucial section. As it happened,
the exhibit went to the jury room with the paper clip still
attached to the important page.
Sigr
after h
gave r
even r
tion fc
empty
he we
ruptcy
Tha1
We
Attach1
a note
wild e<
from Iv
$100,0(
of Corr
It sh
he tool
in fron
nowsa
say, on
did he
Hep
Bank,~
At tl
Connall
$10,000
Bank ir
Mem
pages l<
being fc
in Texa:
and did
Schee
because
four pa!
order tc
i, members of
;. What did he
Persuasion
192
"
wh,
whc
whi
cas<
"
abo
nun
oth<
kno
wer
T
e:
fr
cl
SC
tl:
S(
d,
ar
cc
D
th
w
H
m
bt
tit
te.
in
:mpire was
uring 1971.
dnesses, all
was taking
part in the
\J"umber 2,
Because it
25, 1974, in
:his case he
1.at '71 peris.
tbattled and
ss-examinawhether or
.n Angelo. I
were nego1r testimony
ases against
,rhether they
t were being
Persuasion
194
resea1
plead
Texas
woul<
sure J
Defe
felony
case th:
And De
lowing
Wet
cerrn
told
have
quen
scant
pleac
time
mear
into,
This I<
terms
ing th
era! fr
crime
unlaw
the let
misde1
which
that tl
Jacobs
I say
practicil
195
m who was
asks you to
:yond all reacharged with
charged with
uggest to you
moment.
is man? Well,
rges pending
e to drop the
1ey agree not
foch we will
on the stand.
jefiled a hunin a verdict of
testimony of
.e Court of the
te bedrock of
Under Law."
, neighbor or
)Wn or white,
;tice. I see no
nent asks the
able doubt on
alleged and
his way out of
mt whom the
is law license.
>italize on the
rosecutors did
Persuasion
196
Nm
ask,
a S<
vie,
had
that
use
He
Nove
"It
want<
to do
ed to
"W
"W
Or
"AJ
Secre
"Y<
"AJ
COMMENTARY
A transition-the before and after of Jacobsen is a basic contradiction, but the treatment of Jacobsen is a triplet-the man, the
witness before, the witness after. Williams has finished one topic
and uses a transition to introduce the next one. This is essential
to the flow of the argumentSometimes you will add to _the verbal transition by turning a page of notes and sometimes by some
other gesture.
"Tl
"Q
"A
got a
Or
"~
form
"N
Th
Selec
view,
Chiru
WI
"Ir
$10,C
able
) was an
!efrauder
y would
for himkind of
m. They
ed the
h.ewas
nue to
ook at
,tance,
.e held
>icking
l justice
of that
dded in
jtness.
ontran, the
topic
;ential
eversome
e man.
n intersordid
hich is
COMMENTARY
Now Williams will read from a series of prior statements. He
asked Jacobsen about each of them. He did not simply single out
a sentence or paragraph of each Jacobsen appearance of interview. He read from them at length and simply asked Jacobsen if
had said these things. This was the part of the cross-examination
that some found dull. Now, in closing argument, is the time to
use them and make the point.
Persuasion
198
h
I
n
R
rr
jL
C
p
C,
ti
st
tc
al
199
cash to
sit boxes
1ally that
says that
ey either
,sen said
nally left
1 says he
nally did
> smaller
box."
1th? First
er oath:
l by Bob
transac-
)r
TAPE
ittee on
tvailable
e it to."
ake any
1e avail-
Persuasion
200
and he was asked about the money that had been given
to him by Lilly in 1971, and this is what he said:
"In May or June of 1971 I received $10,000 in cash from
Bob Lilly. This was delivered to me personally. I still have
this mo:
to AMP
Mitchel:
Nationa
to Johr.
wanted
money
cal pur
didn't~
"Late
for a cc
Connal
"I w:
John G
going t
That
Now, n
Let's
tence, i
~
~
I thit
poet, S
what a
deceiv<
when,
Not i
will.
in hi:
the C
thes~
That
jury.
1 said to
1e said to
able from
ed, thinkis with it.
:ributions,
1, and that
,utions to
inistration
f
say and
:)Crats for
tat capacdn't want
to falsify.
~r he was
. He was
'right,
ption of
stopped
!en given
:ash from
still have
Persuasion
202
"OJ
"Be
excus
whetr
1971,
"Ne
He
indee
got w
He
zling
so, a
Thii
To i
clai:
Will
that
ffiOJ
hoc
diff,
zlin
Jacc
app
Lill)
Will
Cor.
illef
mis:
WO!
nee
mai
No
before
troubl
indict
, and they
t extricate
dhow he
:iespicable
nan under
i jury, and
.0,000 that
Secretary
d lie. The
ly to you
de for the
jury they
)-"in my
1tion was
{our safe-
;n't that a
Persuasion
204
Mr.
law
ing,
cee
me<
Md
h
it
(
p
j(
tl
p
b
p
C<
ti:
o:
F,
hi
H
ec
C.
\l(
ing i
abo1
and
didr
H
and
witn
mor. That
1g.
,u to bring
you, ladies
indicted in
esumed to
reasonable
:an considt that case
:re.
Fu! to the
: jury just
ent is just
ment that
gh to Mr.
the judge
may, nay
1dicted for
ry 6, 1974,
lumbia on
g that the
And he
: from that
:osecutor's
X.
What does that tell you? He was tentative, he was trying it out. But if it didn't work, he didn't ever want to hear
about it again. He didn't ever want anyone coming forth
and saying he told this story about John Connally if he
didn't wash himself out of all his troubles.
Here was an embattled, beleaguered man, bankrupt
and indicted, driven by his initial lies, even bearing false
witness against his friend, but only if it worked.
Persuasion
206
Th
inatic
the tt
Th
is rec
the C
exam
Susar
accm
detail
beau1
demr
exam
Tht
but
abc
Bib
twc
unc
cor
Jarr
Is;
of Ja1
natio1
been
happ1
I h:
elm
diff.
pot
to 1
Let
meml
tl is cut. And
tim there day
,aring him for
his visits over
they put him
he record of
, all sorts of
lly in public
n recounting
made.
.e Texas case.
r. The $5,000
acobsen now
an aggregate
1 plea to an
is two years,
e may hopestified, I say,
hour and 20
tshion, things
Thank goodness there is the instrument of cross examination, the oldest instrument in the world for getting at
the truth.
The first cross-examination in the history of the world
is recorded in that book on which you took your oaths in
the Old Testament, the book of Daniel, when he cross
examined the accuser of Susannah, the famous episode of
Susannah and the Elders. He showed by the fact that her
accusers couldn't tell a straight story when pressed for
details, that they were bearing false witness against a
beautiful and virtuous women who was about to be condemned under the law of Moses. The first recorded crossexamination in the history of the world.
COMMENTARY
The story of Susannah and the Elders, not a part of King James
but in other editions of the Bible, was Williams's favorite story
about cross-examination. See Daniel 13:51-62 (Oxford Annotated
Bible, 1962). This is an abbreviated version. Daniel separates the
two witnesses and asks one where the act took place. He says
under one tree, while the other says under a different tree. The
contradiction dooms the accusation. The story is not in the King
James version.
Persuasion
208
And he said:
"I fixed the amount in my mind of $10,000."
It doesn't say that John Connally said any amount. He
says:
"He asked me for some money for the help he gave on
the price support question."
He doesn't explain to you why this conversation was
put on April 28th, a month and three days after price supports were raised, when he had seen John Connally on
March 30th for an hour, on April 16th and talked to him
on April 19th.
Now, explain that. He has to put it on April 28th
because he has to tailor his sto1y to fit as closely as possible to the time he took the $10,000 from Lilly which
was May 4th. The same day he made a $100,000 loan
from the bank in Dallas about which the bankruptcy
shows you.
He says he fixed $10,000. Then why in the name of reason did he take $15,000 from Lilly if he fixed $10,000? And
if he fixed $10,000, why in the name of reason did he
carry $5,000 to Connally? Oh, well, he came up with two
envelopes and one was .empty and one was full, and we
heard the greatest mumbo-jumbo on that to which you
were exposed during the trial.
And what does he say $10,000 for? Because at that time
when he first told the story, he didn't know that they
knew that Lilly was talking about the third five. That's why
he said ten. He was trying to explain that ten that he got,
and that he said he kept.
Nm
whole
the re,
by dat
to do,
corrot
Let'
1971,
hande
came
This
Jaco
retai
sum
the,
the i
sion
whil
inst,
Jaco
He
whyt
He
Securi
box a:
Wh
Sale? l
straigl
No,
with t
The
bys
dep,
Treasury
od given
, been to
1, which
tount. He
!
gave on
ltion was
>rice -supmally on
d to him
oril 28th
r as posy which
)00 loan
1kruptcy
e of realOO? And
l did he
vith two
and we
.ich you
hat time
tat they
tt's why
he got,
Persuasion
210
'
i
i:
(
d
tr
tt
V.
g,
h,
D
ra
pl
at
St
kc
la1
wl
en
tw
co
Oc
211
i no
: as .a
rable
JUnt-
, give
story
ank's
f day
of the
)ffer of
id you
.Uy the
te lavawn the
is that
saying
you .in
nagina)X? We
xis the
as such
Persuasion
212
third
ques1
"D
thing
$5,0C
"A
him
":C
H<
granc
lam
"T
Ne
"I
must
Wasl
N<
jury,
arch:
with
Tl
Si:
an
tia
of
re
m
pr
ec
re
a
aske
reco
still
ition
told .
had
you
1ber
k to
1rns
on
tave
the
l he
,hat
n
lt
>r
s
g
,f
)
md
)t a
third $5,000 from Mr. Lilly, and at the very end, as a last
question, he's asked by Mr. McBride:
"Does anything refresh your recollection? Does anything refresh your recollection that you asked and got
$5,000 from Mr. Lilly in 1971, in November?
"ANSWER: No, sir. Absolutely not."
Then he goes up to the Ervin Committee and they ask
him two times:
"Did you get another $5,000 from Mr. Lilly?"
He denied it. He denied it. Then he went before the
grand jury on May 23rd of 1974, and after a process which
I am going to show you, that is what he said:
"The records reflect I did get $5,000."
Now, he has been confronted with the records.
"I don't remember giving it to Secretary Connally, but I
must have given it to him, because I brought it to
Washington for that purpose."
Now, let's look at this memorandum, members of the
jury, because here is proof positive of the way this man
architected his story over a period of months in meetings
with the prosecutors.
This is Defendant's Exhibit 15.
"John
COMMENTARY
Speaking of John Sale, a prosecutor. Note again that these notes
are an invaluable guide. If one cannot have them produced initially, one might take the witness through the developing version
of the story as reflected in the material at hand and then call
repeatedly on the other side to produce any evidence that the witness's version of his changing story differs from what was told the
proponent's lawyers. They have an ethical obligation to acknowledge such contradictions. The passages on which Williams is now
relying identify what is said as coming from Jacobsen, so there is
a strong Jencks Act argument for their production.
Persuasion
214
COMMENTARY~~~~~~~
James Quarles, the junior prosecutor and scrivener for these
meetings.
We
that o
note t,
in Am
Wh
the ju
third~
in the
it.
This
migl
but
Wo1
A gc
and
out
som
rest
THl
We
MR
THl
MR
Jacobi
He
Septer
Will
inve
give
coul
~ver, he had an
~ had a gnawing
1ad a feeling that
: brought cash to
overnight at the
Id now state that
1 made to John
mt for his seem:ed that his men1g manner.
that if he asked
hat it would be
d it.
n whatsoever of
ed the fact that
illy in the manof coming to
td keeping the
!lated to a third
! to reconstruct
transfer of the
Persuasion
216
They put in a telephone bill that showed a call to 713-2362222, and from that telephone bill he spun out a conversation, he spun out a long conversation with John
Connally, just the way he spun his story from everything
to which he could find a point of departure.
What do the facts show? When finally Jacobsen comes
up with the only record that he has been able to produce
of his activities for the relevant years, a scratch sheet of
phone calls for October 1973, it shows that on that day he
talked to Beverie Ware, Beverie Ware, but maybe that's
not persuasive enough.
Maybe he writes down names of the secretaries of the
persons he calls, maybe that's the way he keeps his
records.
COMMENTARY
This may be difficult to follow. The phone company records
show a call from Jacobsen's number in Austin to this Houston
number. Jacobsen says it is a call to Connally. But his own notes
reflect that he spoke with Beverie Ware, Connally's secretary,
and the phone itself would have rung at her desk or that of the
other secretary Cynthia McMahon. And the records show that
Connally was not in Houston at that time but in his hometown
of Floresville, Texas, south of San Antonio, attending a bank
board meeting.
appoir
every
we ge
found
exp re~
The
we go
No
experi
forth '
phone
Willi
cour
the J
ever
ever
pile
take:
Wan
ger;
Nm
29th,:
office
Mr. Cc
cigar l
gloves
box,,
says,,
to Am
On
the fir.
Alw
about
somec
hand 1
any records
his Houston
sown notes
's secretary,
r that of the
s show that
; hometown
ling a bank
ed yesterday
a McMahon?
have develon to go to
n Floresville
hat is belied
I that he has
vestigation.
have heard
nnally, logs,
Persuasion
218
When he thought about that one he changed it. He colored his story, he architectured a new story so by the time
he came to trial it was two gloves.
me
pil
Ge
COMMENTARY - - - - - - ~
See the Preface for a discussion of this episode.
the
me
sto
kei
the
Co
the
ma
He
tol,
J
de1
oh.
if t
sor
Jao
gra
qm
219
le cole time
1e was
- meet-
e cigar
rnd he
, briefxget if
Austin,
1 John
s.
:n John
:nough.
. he say
it's old,
mally a
::mt him
:t and a
e pretty
e is stu),000 to
:h to be
money that was passed from Lilly in 1971, and have in that
pile of money 49 bills signed by his successor in office,
George Schultz, who didn't take office until June 12, 1972?
I ask you.
Now, it might be that if he were of such a mind to do
that that he wouldn't have thought about whether the
money was old enough. That might have gone by his mind.
But to say it's all old -enough, and Mr. Tuerkheimer
stood here this morning and he caressed these bills and
kept telling you how crisp they were, how new they were,
they are all new and crisp.
And he tells you, Mr. Jacobsen tells you, that John
Connally gave him $10,000 with all new, crisp bills saying
they are all old enough and 49 of them are signed by a
man who didn't take office until Connally was back in
Houston practicing law.
I say that beggars intelligence, but that is the story he
told on the witness stand.
It's all old enough. And then he says something else.
He tells you that while he had that money in his [safedeposit] box in Austin, Texas, that John Connally says, Oh,
oh, there are some Schultz bills in there.
COMMENTARY
In an effort to explain the presence of bills too new to have been
in circulation when Jacobsen said he gave Connally the money,
Jacobsen said Connally had called him to tell him that there were
Schultz bills in the box.
Persuasion
220
COMMENTARY
Jacobsen's bank officer and director positions let him use his
safe-deposit boxes without signing in on every occasion.
Are they going to ask you to take the word of a selfstyled perjurer, of an alleged swindler, of a man who has
testified perjuriously by his own affirmation, scores of
times over two secretaries who came in here and testified
under an oath which they respect?
Every time that there was an opportunity for someone
to see Mr. Jacobsen do what he said he did, it was false.
Corroboration? There is no corroboration for Jake
Jacobsen except what he architectured to cover up his
embezzlements.
That is what they ask you to do, make no doubt about
it.
tari~
und
seer
due
seer
lab
mig
ton
at tt
as giv
perjur
burde
tial el<
No,
a trail
said tl
The
that it
For
on, It:
us to
prove
The
that it
lation
gave i
This
to IT
ness
ness
to it:
is e;
smal
and
re.
:i, it's
iffice
) his
m.
thon
this
selfhas
, of
fied
one
se.
ake
his
,out
ject
taries on the other must mean that the secretaries are lying. Juries
understand that employees may lie for their employers and that
secretaries may . routinely do so when the employer wants to
duck a telephone call or an appointment. But in this case the two
secretaries made an excellent appearance, and pinning the liar
label on them is more than the prosecutor needed to do. They
might have stepped out for a bit. They might have had an errand
to run. It was a long time ago. They had no reason to remember
at the time.
Persuasion
222
J
J
s
j1
ti
V
223
)ney
and
and
the
to
[ am
>n
The
tys.
day,
bills
~ an
fake
X in
son- .
ton
Persuasion
224
was an accomplice, all the cautions about taking the testimony of a man who has made a deal.
COMMENTARY
When an admitted or convicted perjurer testifies against your
client, you are usually entitled to a cautionary jury instruction
that such testimony must be received with caution and weighed
with care. When a plea-bargainer testifies, the standard instruction speaks of such a wimess having a motive to falsify. A similar instruction is given when an alleged accomplice testifies. In
this case, we tendered and were granted all three instructions.
Under FED. R. CRIM. P. 30, the trial judge had made those rulings
before final argument. Now Williams is weaving them into the
fabric of his presentation.
Hei
all, be<
of the
Texas,
don't v
~.
L:1_
I Sa)
only 01
came i
is this:
I
SUJ
numbe
his hor
minds,
come i.J
Six f
Lyndon
Grahan
from hi
The c
courst
ity-fi
crimir
to a
uncha
Miehe
ing ca
the in:
doubt
pie of
rible ti
Int
difficu
225
:he testi-
t your
uction
~ighed
1struc' sirniies. In
:tions.
ulings
:o the
:!ir case
sis the
nake a
to get
; is a
ould
re is
that
tion
em to
, give
: him
n the
only one thing which every other man and woman who
came into this courthouse would be entitled to, and that
is this:
I suppose that some of you wondered when I called a
number of witnesses to the stand the other day to attest to
his honor and his integrity it may have gone through your
minds, oh, well, anybody can get five or six people to
come in and say that he is an honorable man.
Six people came in here, Congresswoman Jordan; Mrs.
Lyndon Johnson; Secretary Rusk; Secretary McNamara; Dr.
Graham; Mr. Rose, chairman of the opposite political party
from him.
COMMENTARY
The character witnesses were a tour de force . One may, of
course, in any case, put on character witnesses to testify to veracity-from opinion or reputation. FED. R. Evm. 404(a), 608. In a
criminal case, character evidence is risky, for it opens the door
to a "have you heard" cross-examination that can reveal
uncharged and even lawful misconduct. Justice Jackson's
Michelson v. United States, 335 U.S. 469 (1948), remains the leading case. But as Williams points out, most judges will give you
the instruction that character evidence alone raises a reasonable
doubt. Prosecutors will argue in rebuttal that we all know people of the most sterling character who turn out to have done terrible things, against all expectation.
In the Connally case, the selection of character witnesses was
difficult, but our search focused on those who had known
Persuasion
226
Connally in different capacities and who disagreed with him in
important ways. Barbara Jordan, an African-American member of
Congress, had been a state senator when Connally was governor
of Texas. They had political disagreements, but Connally seemed
to her a person of honor in all their dealings. Her appearance in
the courtroom was a dramatic moment, and a District of
Columbia jury knew her from her bravura performance on the
House Judiciary Committee during the Nixon impeachment
inquiry.
Lady Bird Johnson was another star witness. She enjoyed great
popularity in Washington, D.C. , independent of her husband. On
the stand, she answered the questions about Connally's character,
giving her opinion and speaking of his reputation for honesty and
integrity. She then turned to the jury, without a question pending,
and said, "There are a lot of people who don't like John, but
nobody ever said he isn't honest." In that sentence, she captured
a major aspect of the case. Connally was in many ways more
articulate-some said smarter-than Lyndon Johnson, but some
thought of him as somewhat cold, arrogant, and distant. Mrs.
Johnson captured a point we were trying to make.
Reverend Billy Graham was also an impressive witness,
although one took a risk putting him on. He had been identified
closely with the Nixon administration and if pressed in a certain
way would defend Richard Nixon in ways that would harm his
credibility with this jury. No such questions were asked, however. Graham is most memorable for his answer to the question
"And what is your business or occupation?" He replied, "I preach
the gospel of Jesus Christ all over the world." One juror said
loudly, "Amen!"
Many of them had differences with him, they had logical political differences, but every last one of them said his
reputation for integrity and honor is unquestioned when I
put them on the stand under the rules of this Court.
If there had been one mark on his life, if there had been
one ugly rumor, if there had been one accusation, if there
had been one scandal, if there had been anything that
stained or sullied or tarnished his name in the slightest,
they could have brought it forth before you, and with the
vast resources at their command, the FBI, their own staff,
you
hav,
F
mar
the
whc
A
fact
of a
a re
l\
x
gav,
wer
I\
one
ple
evi<
A
k
a
n
s
a
1
C
V
,itness,
!ntified
certain
.rm his
1owev1estion
preach
Jr said
ad been
if there
ing that
lightest,
;vith the
vn staff,
you can be sure that if there had been such they would
have brought it out here in this courtroom.
From the fact that they did not, you can infer that the
man on trial who has been made the object of obloquy,
the target of slander by this self-styled perjurer, is a man
who has had no stain in 58 years of his life on his record.
And His Honor will tell you as a matter of law that the
facts alone, apart from other considerations or in the light
of all the evidence, may be sufficient to raise in this case
a reasonable doubt.
Now, let us talk about John Connally, the accused.
Yesterday they brought out, oh, well, you know, he
gave all those records, but they were subpoenaed. They
were s_u bpoenaed.
Members of the jury, under our system of justice, no
one is forced to give evidence. It's an elementary principle of our criminal justice system that no one has to give
evidence in an investigation of himself.
COMMENTARY
Anyone who read Williams's book One Man 's Freedom would
know of Williams's eloquence about the adversary system. This
argument is a spirited defense of a prospective defendant's right
not to testify or produce personal records. Let us examine its
parts.
Williams first takes the position that Connally had a right not
to produce his diaries, telephone call records, and similar documents. There was in 1975 more to that position than perhaps
there is today, for there are sharp limits on Fifth Amendment
protection of papers. See generally WAYNE R. LAFAVE & JEROLD H.
ISRAEL, CRIMINAL PROCEDURE 8.12-8.13 (2d ed. 1991) [Lafave &
Israel]. But one can still make something of not resisting a subpoena, of voluntary acts of cooperation.
This leads to the second point: What do jurors think about a
suspect's obligation to come forward and help the authorities,
and how do they judge him if he slips up on some detail?
Testifying or being interviewed raises the stakes considerably, for
one may be charged not only with the substantive offense but
with lying about it as well-as though one's defense is already
certified unbelievable by the grand jury or prosecutor.
Persuasion
228
he
to,
'j
ofl
bot
vat{
1-
tion
and
y
Joh1
T
a fc
mor
Tl
SU
hi1
tOJ
tin
Te
pit
wa
sis
hours and they had him in front of the grand jury, and they
took his whole defense and then they charged him.
COMMENTARY
That is, the prosecutors already kne~ what they were going to
do, and they simply wanted to get some discovery to which they
were not entitled. There are some older cases on the "perjury
trap" grand jury subpoena, but most courts think that the Fifth
Amendment privilege is protection enough. A perjury trap refers
to the subpoena of a witness solely for the purpose of eliciting
testimony that is intended to be used in a later perjury prosecution of the witness. See In re Poutre, 602 F.2d 1004, 1005 (1st
Cir.1979); Bursey v. United States, 466 F.2d 1059, 1079 n. 10 (9th
Cir.1972); Brown v. United States, 245 F.2d 549, 55455 (8th
Cir.1957).
)le
to
:!r-
altat
1g
1g
1't
to
p-
:e
at
)r
1,
1-
:e
Persuasion
230
At the end, at the very end, what were they reduced to?
When John Connally sat on the witness stand yesterday,
in one of the greatest demonstrations of nitpicking that I
have seen in my 30 years in courtrooms, they picked at
little answers here and there that he had given in hundreds of pages to try to suggest that there were inconsistencies.
And they brought out that he neglected to tell them
about the October 26th meeting in Austin, Texas, with
Jacobsen.
And he said, I understood the question, sir, to mean
what was my last meeting.
There was no reason for him to .c onceal it.
Now, what do we have? We have the summary that
John Connally dictated when he came out of the grand
jury room on November 2nd of all the questions and
answers that were put to him which he sent off to Temple,
COMMENTARY
Larry Temple, a prominent Austin lawyer and friend of Connally,
to whom Connally sent the summary.
<)
which]
sitting l
to see..,
"Wh~
"ANS
and so
It wa
tion, ar
here ye
And
whenh
afternoc
Here
record i
erary sa
This
Jacobse
Whet
rememt
tion on
and the
invalid
Williai
ment
when
anoth<
is dis~
the gr
under:
under:
talk to
the di
Th<
the 101
on a<
memo
him a
was no
taped
> any
.'s offering,
t, for three
de here.
educed to?
yesterday,
:king that I
picked at
::n in hune inconsis, tell them
exas, with
:, to mean
lffiary that
the grand
,tions and
:o Temple,
Connally,
Persuasion
232
Connallys were getting ready for a formal dinner. In his mind,
Connally associated the meeting with getting dressed. As it
turned out, Connally was mistaken. He had departed from his
typed itinerary and actually met Jacobsen in the morning, while
he was putting on his tie and preparing for morning activities.
The light went on for Connally, and for all of us, when the room
service waiter, Mr. Barnett, walked in to take the oath. Barnett
had served coffee to Connally and Jacobsen. On direct examination, Connally readily admitted this error, which did not seem
to make much difference anyway. The moral here is that calendars and similar documents can be misleading and can actually
help to create false memories. Admitting such an error at the earliest possible moment is obviously important to the advocate'sand the client's-credibility.
we
far,
I
old
Om
deai
We
you tr
it is o
humili
was rr
Thr,
faded
recess,
your c
matter
But
place:
Notl
traged
this ev
This
"Torr
this c
all of
The '
Mary
This
nitior
some
is to
It is :
you dis
burden
at
~n
)ft
1is
1n
::>e
in
ur
er
)n
Persuasion
234
and that is what the prosecution did in this case, and that
is why their case is in the state it is in at the present time.
This case is styled United States, United States against
John Connally, but I want to tell you something. The
United States will win this case. The United States will win
this case.
I saw
courthot
of justict
ty of an
Crown v
After 1
al court]
States nc
of one c
the Unit,
This is
crimim
courth,
Justice
I thin
the gre;
human
anguish
I ask
humiliat
accusati
John Cc
States v,
I ask
acquitta
charged
235
~s.
gain for and buy
1d buy mansions
1 can bargain for
:omforts that you
:::m can't buy and
bargain for wis:, because if you
ugain for love,
:t. And you can't
1e truth that you
n over it.
wisdom" means
1ere is no counand truth. In the
nmon images of
~stimony,
, sharp and dra-