The Art of Advocacy

Dana Milbank has a revealing sketch of the ongoing "D.C. Madam" trial in today's Washington Post. The prosecutors seem to be holding nothing back in building a case against Deborah Jeane Palfrey. Indicted for allegedly running a prostitution ring made infamous for attracting several Washington luminaries, Palfrey watched as the prosecutors grilled several of her former employees about the services they performed for clients. From Milbank's perspective, these direct examinations were so humiliating, needlessly detailed, and invasive that they discredited the prosecutors.

Here's some of the testimony that got Milbank's attention:

Yesterday, it was the turn of a young naval officer to take the stand; the case will almost certainly end her career. The prosecutor, Daniel Butler, had the woman spell her name slowly and clearly, then had her talk about when she was "aggressive" with a client, when she was "more submissive," when she had a difficult client ("he tried to remove the condom") and how often she got "intimate."

"What do you mean by 'intimate'? "

The soon-to-be-former naval officer looked at him in disbelief. "Touching, caressing," she explained.

"What happened" after that? he demanded.

"Sex."

"What type of sex?"

"Sometimes it was oral sex; usually it was normal."

"Normal?" Butler persisted.

"I'm not sure what you're getting at," the stricken witness pleaded.

"What's normal sex?" Butler again demanded.

Judge James Robertson intervened. "He wants to know if you mean intercourse."

Butler pressed on with more humiliating questions until the judge cut him off. "That's enough," Robertson said. Minutes later, the dazed woman was helped out of the room.

If that's how it truly played out, you have to wonder what the prosecutor was thinking. By simply having to show up and testify, the witness had compromised her dignity. The aggressive questioning was just rubbing salt on the wound. And what were the jurors thinking? It could very well be they sympathized with the woman and wanted the lawyer to sit down.

Prosecutors should be wary of even appearing like they might be abusing their significant powers. A few questions too many can cause the prosecutors' courtroom ethos to plummet. Whether that has happened in this trial, we can't know, but if the defense puts on a strong case, any ill will the jury feels toward the prosecutor could come back to haunt him.

One of challenges of direct is being selective--paring the testimony down to the essential and letting those points speak for themselves. "Less is more" serves as a helpful axiom particularly in examinations involving sensational or emotional testimony.