Corey Lewandowski and the media reaction to his testimony

I’d been listening to the Lewandowski hearing before the House Judiciary Committee on MSNBC, primarily because I didn’t know the Spectrum channel for CSPAN.

And I was reading Twitter at the same time.

So not only was I personally reacting to the hearing, I was hearing and reading pundits and experts’ reactions. Experts, for me, are almost always lawyers because when it comes to legal issues — and the impeachment investigation is a legal matter — I want to hear what lawyers have to say.

As to the pundits? I’m interested — I follow them, after all — but consider their reactions to things like hearings to be only slightly more informed than mine. That is, they are in the same vox populi as I am, just elevated by their experience up on a dais while I’m sitting in the audience.

When CSPAN 1 switched the hearing to CSPAN 3, I quickly found my channel for CSPAN 3 and switched, too. So now I’m listening to the hearing without commentary. It’s completely different.

So here’s what I’ve observed:

Both pundits and experts have tweeted “reviews” of the hearing with thumbs down to the Democrats conducting the hearing. I’ve read words like “disaster,” etc., read that the Democrats are utter failures at doing things like this, that they have to hold Lewandowski in contempt, have him arrested, hauled out in handcuffs (not clear whether there’s any legal process that allows for that, and/or what entity is supposed to provide the handcuffs and the hauling out), and blah blah blah.

Exceedingly disappointing.

Moreover, people who should know better seem to regard the questioners as cast members of a drama. Some get good reviews, some don’t. Certain pundit/experts have actually written that particular members of the House Committee should be doing all the questioning, presumably because the questions had, in their perception, an effect.

Here’s the deal. When a group of lawyers gathers to prepare for a trial, they don’t individually go off into corners and decide what each will ask each witness and who will ask each witness. The lead attorney(s) assembles the questions, the follow-ups and the assignments as to witnesses.

So. The House Committee members whom you thought did the best were asking questions the whole Democratic committee — or its leaders — wrote. The questions were probably assigned by an evaluation of the personalities and questioning style of each committee member.

That’s first.

Second, it was not a “disaster,” a “catastrophe” or any other apocalyptic term. What was important was getting the facts, i.e., the Mueller Report facts, out into the open air and then having the answers recorded. Because you don’t know how well an interrogation went until you read the transcript. I’m going back and bolding that.

Third, the lawyers criticizing the Democratic questioning — and they are hugely smart lawyers — were, primarily, prosecutors but I think none of them has had political experience linked to their legal experience, so they can’t know how the law and the politics of a political hearing interlink and what proprieties and regulations must be adhered to.

I.e., democracy is a milles-feuilles. Or a mess, depending upon your tastes.

And gee whiz I have a little life lesson — an incident I’ve written into Part II, The Fakes of Life, of my nearly completed book, How I Learned The Facts of Life — to offer. It’s a lesson about lies, testimony, witness interrogation and how foolish instant media reaction can be.

Lies. A little story

In the 1990s, as many of you know, I was working for terrific lawyers.

Two of them, Peter Neufeld and Barry Scheck, were well-known criminal defense experts on DNA evidence, because of which they were retained by O.J. Simpson for his trial.

You might remember a witness called by the prosecution, a cop named Mark Fuhrman.

Fuhrman looked like a TV cop, a sort of glamor boy, and he became a romantic hero to the sort of people who were – in those long-ago days when there were closets – closet racists.

Fuhrman testified as to a bunch of things and actions in which he claimed to be an active participant. He was a cool, calm witness.

Even when F. Lee Bailey stood up to cross-examine Fuhrman.

Bailey was seriously mocked by the media for his cross, during which he asked Fuhrman repeatedly whether he was a racist. No. Had he ever made racist comments? No. The questioning continued, as did the “No’s.”

Here’s what had happened behind the courtroom scene, before Lee Bailey crossed Mark Fuhrman:

An investigator for Simpson had located a woman who, in preparation for a prospective film or TV show about cops, had at length interviewed Fuhrman as an expert into the inner world of police work. The investigator had gotten a copy of the interview transcript. It sat on a shelf in Peter’s office, in a 4-inch three-ring binder. Big, fat binder.

I read as much of it as I could stand. Which was not much. It was stomach-churning in its offense, riddled with appalling racist terms and comments. Profoundly ugly.

Out of the jury’s ears, a big argument ensued among the defense, the prosecution and Judge Lance Ito, about permitting the hard evidence of Fuhrman’s racism into court.
Eventually, Ito decided to allow only a page or two of that fat transcript into evidence before the jury, maybe one or two racist comments.

I, for one, was indignant about Ito’s decision (not for the first or last time). How could two racist comments fully convey to the jury the impact of that 4-inch binder?

Afterward, Peter explained to me how this sort of thing works. If you can prove to a jury a witness has lied, even if only once, the jury will in their minds throw out the entire testimony of that witness. (There are specific ways a lawyer can mitigate a witness’s lies, but not after the fact.)

Another trial lawyer truism emerged from that incident, and it involved Lee Bailey, mocked for his cross-examination: no smart lawyer ever asks a question of a witness to which the lawyer doesn’t know the answer.

Lies are lies but you don’t always know a lie when you hear it. Sometimes it gets a light shone on it only afterward.

Feel free to apply this useful lesson when you listen to or read these important hearings, and listen to or read comments from pundits, experts and journalists who may be really intelligent and knowledgeable but who may react too quickly to what they see on TV.

And P.S. Barry Berke wrecked Lewandowski who seems not to be very smart. At all. Although he thinks he is. The Dunning-Kruger Effect in action.

The Dunning-Kruger Effect: the cognitive bias of illusory superiority.

The Dunning-Kruger Effect explains that many people are not merely ignorant: they are unaware of being ignorant. Their brains do not accept that they are uninformed.

In other words, they are too intellectually inadequate (to be euphemistic) to realize they’re intellectually inadequate. They don’t know that they don’t know and do not have the capacity to understand their inadequacy.

They think they know all there is to know.

Unlike a lot of us, who spend considerable time reading, absorbing information and double checking the information for accuracy, because we’re aware we don’t know everything.

We know what we don’t know.

 

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