james mccomas| Episode 09

Jim McComas  0:00  
My goal was to embolden lawyers, empower them not to be afraid, to think of questioning in ways other than the yes-no method.

 

Aaron Nelson  0:23  
Welcome back to another episode of Sanctuary in the Jungle. I'm your host, Aaron Nelson. In today's episode, we're diving further into the world of cross-examination with our guest, Jim McComas. Jim, quite literally, wrote the book on how to level up your cross-examination. As chief of the trial division at Washington, DC Public Defender Service, and later as an iconic homicide defense lawyer in Alaska, Jim created new dynamic methods for the courtroom. In our last episode with Matt Dodd, we explored the fundamentals of cross. Mastering these techniques of control are essential, but once you've mastered them, where do you go next? Jim says, "to truly excel, you must embrace flexibility and make the witness an active participant in advancing your story. Hard cases are won by taking calculated risks. In a dynamic cross, the lawyer designs their approach and questions to take full advantage of the witness's predisposition, needs, and agenda". Keep listening to hear Jim McComas explain some teachings from his book "Dynamic Cross-Examination". Here's Jim.

 

Aaron Nelson  1:37  
Well, welcome to Sanctuary in the Jungle. I'm so excited today. Our guest is Jim McComas. Welcome Jim. Thanks for joining me here in Hudson.

 

Jim McComas  1:45  
Thank you, Aaron, it's a pleasure.

 

Aaron Nelson  1:47  
Yeah, Jim is one of my heroes, a mentor from far away. Jim's been a longtime criminal defense attorney. He wrote, I think, the book on cross examination, "Dynamic Cross-Examination", which we'll, we'll get into longer. And the quick version is, I read the book. I found out you lived in Wisconsin. I hunted you down, maybe stalked you to some extent, and drove up and you helped me with my first homicide trial, and we got a "Not Guilty", and my client came home. So thank you, Jim.

 

Jim McComas  2:19  
You are more than welcome.

 

Aaron Nelson  2:21  
Yeah. So tell us a little bit about yourself, Jim. Let's just start you you grew up here in Wisconsin. Is that right?

 

Jim McComas  2:26  
Yeah, I grew up in suburban Milwaukee and went to a small school in Ohio.

 

Aaron Nelson  2:33  
Growing up in suburban Milwaukee, where in Milwaukee did you grow up?

 

Jim McComas  2:37  
Whitefish Bay. 

 

Aaron Nelson  2:38  
Okay.

 

Jim McComas  2:38  
My dad was a civil lawyer at the Foley firm.

 

Aaron Nelson  2:43  
And this is Foley and Lardner?

 

Jim McComas  2:45  
Yes.

 

Aaron Nelson  2:45  
And I think they're the largest firm in Wisconsin now, are they not?

 

Jim McComas  2:47  
I'm sure they are. 

 

Aaron Nelson  2:50  
So your dad was there-

 

Jim McComas  2:51  
He did some trial work. He told me. 

 

Aaron Nelson  2:53  
Okay.

 

Jim McComas  2:53  
But it was defending the gas company when there had been explosions, and so that didn't appeal to me.

 

Aaron Nelson  3:02  
That wasn't something?

 

Jim McComas  3:06  
That was not something on my radar, I-

 

Aaron Nelson  3:04  
But- but what was that like growing up with- I mean, you- you must have then grown up in, you know, with your dad's a lawyer. Education is important. Was that something that was part of your youth? 

 

Jim McComas  3:17  
Oh, yes, absolutely, education. And there was a lot of free range of discussion and ideas in the family. A lot of what I read back then, the Civil Rights Movement was really kicked into high gear then, and it became obvious, both from the news and from books I was reading that the criminal, so-called criminal justice system was basically being used as a political tool.

 

Aaron Nelson  3:50  
Is that something that, like, through high school, before high school, that-

 

Jim McComas  3:54  
Oh yeah, even before, even before then, I used to say about the book and the movie that I wanted to, like in "To Kill a Mockingbird"-

 

Aaron Nelson  4:05  
Yeah.

 

Jim McComas  4:05  
Represent the client, but get him acquitted so that he wouldn't have to, you know, run for his freedom and be shot in the back.

 

Aaron Nelson  4:19  
Yeah. 

 

Jim McComas  4:20  
Albeit in the fictional county in Alabama at the time, I doubt anyone could have got him acquitted. Because of the way I was brought up, I believed, at the time, in the principles of Christianity I was brought up in, although I currently don't believe in any organized religion.

 

Aaron Nelson  4:46  
And that was important to you when you were growing up, some of those values you got from those books? 

 

Jim McComas  4:50  
Exactly. From there, and then also from civics classes and being interested in law, and criminal law in particular, you know, seeing every day, the difference between the news and the theory I was being taught or the way I felt about it, they were promises. Promises had been made, and if you can't fulfill your promises, then you're not the country that you claim to be.

 

Aaron Nelson  5:18  
There's nothing like a child to- not that you were a child there, but there's nothing like youth to say, the adults are saying one thing and they're doing a whole different thing. 

 

Jim McComas  5:28  
Exactly right.

 

Aaron Nelson  5:29  
And that's what you had.

 

Jim McComas  5:30  
Exactly right. So I knew from high school at the latest that I wanted to be a criminal defense lawyer, and my goal was to get the credentials I needed, to get the best possible placement I could, to start my career and to do that work as long as I could do it.

 

Aaron Nelson  5:52  
Yeah, one of the- I heard you talk to others about that you'd go to the courthouse when you were in Milwaukee there. Would you go to the courthouse and watch?

 

Jim McComas  5:59  
Yeah, on Saturdays, I'd go down there sometimes with some friends, and we'd, we'd just watch arraignments.

 

Aaron Nelson  6:06  
Okay.

 

Jim McComas  6:07  
And it was pretty it was pretty shocking. If you were a defendant of color, you weren't released, and you were sent to jail on some maybe small amount of bail, but one that you couldn't pay.

 

Aaron Nelson  6:21  
Yeah.

 

Jim McComas  6:22  
And on the other hand, if you're one of the few white defendants that had ended up in the- in the holding area, then you were sent home with your parents or whatever, and it was just another, another reiteration of what was so wrong with the- with the country.

 

Aaron Nelson  6:39  
What? How old were you when you did that? Teenager? High School?

 

Jim McComas  6:43  
Yeah, maybe 12 to 14. 

 

Aaron Nelson  6:45  
What would- I mean? I'm just, that's fascinating to me, that somebody would have the vision.

 

Jim McComas  6:50  
I already had a deep interest in law and being a lawyer. I didn't desire to be a politician, but I thought, if I can have an impact that will make some of these issues better, that will keep some of our constitutional processes, that will reduce some of this racial bigotry and discrimination. The law seemed to be the way to do it.

 

Aaron Nelson  7:15  
Wow. So now, you know, I'm 54. I've been doing this about 29 years, and when I talk to people in the- in the public about the court system, one of the things that I often say is, look, you need to go and watch if you want to know about justice in your community, if you want to know what's really happening, can't trust this TV. You can't trust the news. You got to go and watch. And here you are, a 13 year old, and you figured that out.

 

Jim McComas  7:40  
Yeah, well, and that's right. I mean, there's nothing like seeing it actually happen. And as it turned out, the only court I could get into on the weekend, or days I was at school was- was arraignment court. But that turned out to be a very good one, because there was a wide range of alleged crimes, and decisions were made very quickly, and so you really could understand what it was, what was happening.

 

Aaron Nelson  8:07  
So, I want to get back to a bunch of there, but I still want to follow the- to your, your journey through here.

 

Jim McComas  8:14  
Okay.

 

Aaron Nelson  8:14  
You left, you left Milwaukee, and you went to school outside of Wisconsin.

 

Jim McComas  8:18  
Yeah. College of Wooster and Wooster, Ohio, and then went to- back to Madison. My- both of my parents went there. To a small liberal arts school.

 

Aaron Nelson  8:28  
Okay.

 

Jim McComas  8:28  
Then we- then we were at Harvard, and when I got to PDS in 1978, there were only maybe four black lawyers out of the whole staff of 35 or so.

 

Aaron Nelson  8:42  
Okay.

 

Jim McComas  8:43  
All the clients were African American, almost all the judges were white, and almost all of the PDS lawyers were white. So it really, you had to really learn fast that your job wasn't to be a mouthpiece for somebody that you felt sorry for, but if you were going to advocate that, that you were going to have to understand as much as you could and use that as the as the wellspring for how you would help them in court.

 

Aaron Nelson  9:17  
Understand their experience, understand their culture, their environment-

 

Jim McComas  9:20  
What they're up against? Yeah.

 

Aaron Nelson  9:22  
Sure.

 

Jim McComas  9:23  
Exactly.

 

Aaron Nelson  9:23  
So you're our- we had another guest who had went to Harvard, James Coleman Jr, who's now a professor at Duke, was at Harvard in the early 70s. So I don't- you guys may have overlapped for a year or two, but you met some of, I think, some of your closest friends there at Harvard, is that right? 

 

Jim McComas  9:41  
Yeah. Well, three of us after graduation, went to the Public Defender Service in DC from Harvard, Charles Ogletree, myself, and Jimmy Klein.

 

Aaron Nelson  9:53  
Okay.

 

Jim McComas  9:55  
And our plan was ultimately that I would be in charge of the trial division. And Tree  would be the director, and Jimmy Klein would be in charge of appeals, and we almost made it.

 

Aaron Nelson  10:05  
Oh, that was your plan coming out of Harvard?

 

Jim McComas  10:08  
Yeah. We got very, very close.

 

Aaron Nelson  10:10  
Wow, that's pretty, I mean-

 

Jim McComas  10:12  
They're both wonderful people. Tree died a couple years ago.

 

Aaron Nelson  10:17  
Yeah.

 

Jim McComas  10:18  
Jimmy is- I just talked to Jimmy the other day.

 

Aaron Nelson  10:21  
Okay.

 

Jim McComas  10:22  
And- and so-

 

Aaron Nelson  10:24  
You all three went to PDS?

 

Jim McComas  10:26  
We all three went to PDS. It was the only place that we wanted to go, basically the only place that we tried to get to.

 

Aaron Nelson  10:35  
Let me just stop you there, because-

 

Jim McComas  10:36  
Yeah.

 

Aaron Nelson  10:36  
PDS, to people in our world is known. That's an acronym that we all know. But what's PDS?

 

Jim McComas  10:42  
That's the Public Defender Service of the District of Columbia. It's- the District of Columbia does not have, I think it's Article Three courts like the federal system, because it's a district that it has Article One courts.

 

Aaron Nelson  11:02  
Okay.

 

Jim McComas  11:02  
And Richard Nixon appointed our entire bench in the early 70s, so we had that going for us too.

 

Aaron Nelson  11:13  
Yeah, so, because, you know, I practice in Wisconsin, so we're dealing with Wisconsin law, and I have friends, Joe Bugni, one of our guests, used to be a federal defender. Some of the people that I admire, Craig Albee, the leader of the Federal Defender Service here in Wisconsin, they do federal law, but PDS is something different than both of those.

 

Jim McComas  11:35  
It was different. Yes, it was federal in the sense that the prosecutions were done by Assistant US attorneys. However, it wasn't governed by the Federal statutes.

 

Aaron Nelson  11:47  
Okay.

 

Jim McComas  11:49  
There was a more or less common law of evidence. There was no rules of evidence, but a common law of evidence. And there were some provisions of law, but it was, it was essentially the same as trying cases in your superior court in Wisconsin.

 

Aaron Nelson  12:07  
Okay, so tell me a little bit about because, as an outsider, somebody who's all public school, all Wisconsin education, and now works in Wisconsin, right? As an outsider, I look at this, and I'm like, "wow, there seems to be a heavy path between Harvard and PDS that continues to this day". 

 

Jim McComas  12:07  
Yeah.

 

Aaron Nelson  12:07  
Did- were you? Were you somebody that created that path? Were you following the path of others? 

 

Jim McComas  12:30  
I was following the path. I didn't even know about PDS until I got to Harvard, and then I found out that they sent a higher ranking member of the organization around to schools to interview people, and so that's how I ended up hooking up with them, and also Tree and also Jimmy. You know, it was very funny, Harvard claimed that of their nearly 2000 graduates, or whatever, a third of them were going into public service work.

 

Aaron Nelson  12:32  
Wow.

 

Jim McComas  12:32  
Well, I didn't see them at PDS. I saw Jimmy and Charles.

 

Aaron Nelson  12:58  
Well, still, the fact that the three-

 

Jim McComas  13:03  
They were counting clerkships and clerkships were set up in a way so that people would go to this judge, and then that would get me to this appeals judge, and that would get me to this Supreme Court judge, so on, and so on.

 

Aaron Nelson  13:33  
They're working their way up the ladder.

 

Jim McComas  13:34  
I found Harvard to be a radicalizing experience. I'd never met people who hadn't gone to public school before, except parochial schools. I- when I saw how they were mapping out their futures and all the rest of this, it just was revolting.

 

Aaron Nelson  13:52  
Oh.

 

Jim McComas  13:52  
And so I couldn't wait, I couldn't wait to get to DC.

 

Aaron Nelson  13:56  
Radicalized in a sense that sometimes, as we do, we're like, I'm not going to be that guy. I'm not going to do that thing. 

 

Jim McComas  14:00  
There's nothing here. There is this big to-do about "what?". Which bank wins?

 

Aaron Nelson  14:02  
Going to big law with big money, right?

 

Jim McComas  14:10  
Right.

 

Aaron Nelson  14:10  
And you picked a different path.

 

Jim McComas  14:12  
Yep. 

 

Aaron Nelson  14:12  
So, tell me about that. Starting out at PDS in the 70s there. How did you get thrown into the deep end? You have some mentors there? 

 

Jim McComas  14:13  
Well, the first thing that happens is: you don't touch a client's file when you go to PDS until you've gone through six to eight weeks of training.

 

Aaron Nelson  14:12  
Wow. 

 

Jim McComas  14:30  
Full-time training. It's considered by all of us who've been there to be the most important part of preparation. Because if you go to a public defender service where you just get thrown into the pool and here's 10 files, or 15 files, you know, go to arraignment and then handle these misdemeanor cases, a lot of lawyers are totally intimidated. They're really afraid that they're going to look like idiots. They don't know what to say. And you know, it's all totally unnecessary. It's like making medical students stay up for 36 straight hours. It makes no sense at all.

 

Aaron Nelson  15:09  
They still do that. Yeah. And they  still train public defenders, sometimes in the- with a lack of training in the way that you're talking about.

 

Jim McComas  15:15  
So PDS was, as far as I know at the time, the only, or certainly one of the only programs where there was full time training at that time, it was six weeks, and I, I believe it's expanded since then.

 

Aaron Nelson  15:15  
Okay.

 

Jim McComas  15:17  
And so by the time you went out of there, you had first of all developed cohesion in a class of eight to 12 people, however big the class was, and they were there to support each other. And then they were also given a supervisor when they started getting cases, and they started in juvenile court or appeals. Okay, and then misdemeanors, and then felony twos, and then felony ones. Well, although you know, it was another great advantage that looks like a disadvantage was there was no rule 16 discovery. What's that? In Washington, rule 16 discovery, federally and in most states, means the prosecutor has to give over everything, all the of the witnesses he's going to call, or the witnesses that are favorable to you, all their statements, all the police reports, all the lab reports. There was no such thing in DC.

 

Aaron Nelson  16:01  
Okay.

 

Jim McComas  16:01  
And then misdemeanors, and then felony twos, and then felony ones. Well, although you know, it was another great advantage that looks like a disadvantage, was there was no rule 16 discovery.

 

Aaron Nelson  16:08  
What's that?

 

Jim McComas  16:08  
In Washington, rule 16 discovery, federally and in most states, means the prosecutor has to give over everything, all the of the witnesses he's going to call, or the witnesses that are favorable to you, all their statements, all the police reports, all the lab reports. There was no such thing in DC.

 

Aaron Nelson  16:31  
It's not that it didn't exist. It existed. They just didn't share it with you. 

 

Jim McComas  16:33  
Well, there was no rule. No, they'd applied specifically to DC. So, you would try and get, you know, you get very little by way of formal discovery. So that led to the practice of filing innumerable motions and as many motions as possible, and demanding hearings on them, and creating our own discovery mechanisms.

 

Aaron Nelson  16:58  
You gather facts through this-

 

Jim McComas  17:00  
Under oath. We didn't have a grand jury, but we could always think of a motion that would get an opportunity to get this person up there.

 

Aaron Nelson  17:10  
And we'll get into your book "Dynamic Cross-Examination", which was a career changer for me, but just to touch a little bit on it and tease, I think that's part of what allowed you to have to do dynamic cross examination is you didn't know what the evidence was.

 

Jim McComas  17:27  
I totally agree, and I say in the book that it's a big disadvantage. I have seen public defender agencies, and I'm not saying all of them, but I have seen agencies where if you ask someone to send over their file because you're taking over the case or something, what you get is the discovery.

 

Aaron Nelson  17:51  
Sure.

 

Jim McComas  17:52  
There's nothing else in there. 

 

Aaron Nelson  17:53  
And the discovery, again, is just-

 

Jim McComas  17:55  
Police reports, witness statements, grand jury testimony, if it's a felony, lab reports... You know all these things that you need to know and you want to know, that's for sure, but, you know, the fact that it hasn't been added to by the defense lawyer who's had the case, shows you that they're relying for the statement of what this case is about on government agents who produced it.

 

Aaron Nelson  18:21  
Sure.

 

Jim McComas  18:22  
And that's- that- that's a big mistake at step one.

 

Aaron Nelson  18:26  
Yeah. I've always lived in a world in where we get discovery. We get what you call rule 16. We get all of those reports.

 

Jim McComas  18:34  
Open File.

 

Aaron Nelson  18:35  
Open File.

 

Jim McComas  18:35  
That's what you get.

 

Aaron Nelson  18:36  
Yeah.

 

Jim McComas  18:38  
My mistake. We got rule 16, which was only very little like lab reports and that kind of thing. We didn't even get witness statements, except under the Jencks Act.

 

Aaron Nelson  18:48  
Sure.

 

Jim McComas  18:50  
Which was an ancient-

 

Aaron Nelson  18:50  
But what I think I hear you saying, you know, in for there- for a while there, when I would describe it to my clients, I would, I would describe discovery as the annual Christmas letter. We've all- remember back in the day when families, somebody would write out the end of the year, the holiday letter. "Here's what happened with the Nelsons. The children did this. We did this". And it's all the highlights. It's all the great stuff. And there's times maybe when you'd get the letter from the Johnsons, and you live next to the Johnsons, and you'd go, the letter says this, but the world says this. That's very apt.

 

Jim McComas  19:26  
That's very apt.

 

Aaron Nelson  19:27  
Yeah.

 

Jim McComas  19:28  
That is apt. And it's the Johnsons, after all, who are writing their letter, you know? And when is the last time you ever saw a police officer write a report discussing credibility or pending charges against the witness, or, you know, there's all that stuff out there to be found out that you got to go out and find yourself.

 

Aaron Nelson  19:48  
Yeah, and so part of it is, what I think I hear you saying, is, when we got the letter, some people would just be like, "we're just going to use the letter", as opposed to go and talk to the actual neighbors, talk to the people that were involved, the people that might be able to add to the some of that story.

 

Jim McComas  20:05  
You can't do that. You can't do that. And, boy, we're at a point now where we know so much more than we did when I was coming up about why eyewitness identifications can be wrong, why perception can be wrong. We can even learn that muskie fishing. You're reeling in a bucktail, and you see the Muskie behind it, right next to the boat, and you never see the fish open its mouth and grab the bait. You just feel your rod going down.

 

Aaron Nelson  20:35  
Okay.

 

Jim McComas  20:36  
And that's happened to me on more than one occasion, your eye won't process something that happens that fast. It happens too quickly, yeah? And so now you put yourself on the street and guns are going off, and you know-

 

Aaron Nelson  20:48  
Yeah, that's your own experience. And saying, Look, I can't, I can't rely upon my eyes and my ability to describe what I saw, because I didn't see it. It happened too fast. Yeah? So, tell me a little bit about those early years then at PDS. You're there with, again, Jimmy and Tree, as you say.

 

Jim McComas  21:05  
Yeah.

 

Aaron Nelson  21:06  
Working with Mr. Coleman as your mentor, right?

 

Jim McComas  21:10  
And what was just great. We did a bunch of cases, and we didn't make any money. I mean, it was the worst paying job in the world, but we stuck- we stuck it out there, and- and Tree ended up as the Deputy Director, and Jimmy ended up as the Head of Trials, or the head of Appeals, and I was the Head of Trials. And then we had a horrible political problem that occurred. Then I came to Milwaukee and thought maybe I would practice here, but there was a contract murder case in Alaska that Jim Shella's firm had, and so I tried that case.

 

Aaron Nelson  21:59  
So you left PDS, started to do practice in Milwaukee, and pretty quickly you got dragged up to Alaska.

 

Jim McComas  22:05  
Well, there was a mistrial after the first three-month trial, and then I retried it alone and gotten an acquittal the next year, also in the winter in Fairbanks. And by then, I loved Fairbanks and Alaska. It's the most beautiful place I've ever been, even including my beloved north woods.

 

Aaron Nelson  22:27  
Thanks for listening. Hope you're enjoying this episode so far. If you haven't already, make sure to subscribe. We've had a lot of new people join us recently. I'm glad you're all here. My goal in this project was to grow a community of people who care about humans and treating them better. So if you're new here, thanks for joining us and subscribe now.

 

Aaron Nelson  22:50  
Well, let me just pull out the book here.

 

Jim McComas  22:52  
Okay.

 

Aaron Nelson  22:52  
You know, this is your book, "Dynamic Cross". This is, this is my well-worn version of the book and marked off. This is, this comes out in like, 2012ish

 

Jim McComas  22:55  
Yeah, 11. I think is the date in the book.

 

Aaron Nelson  23:09  
Sure. And so, you wrote this after you'd retired.

 

Jim McComas  23:14  
Yeah, I retired in 2000, end of 2007. And then I was still doing CLE's and still going back and doing training at the DC Defender Service, and I just felt like there were some things that I'd figured out and was able to articulate in a way that no one had been able to articulate it to me.

 

Aaron Nelson  23:40  
Yeah.

 

Jim McComas  23:40  
And so that led me to write "Dynamic Cross". And as I started writing "Dynamic Cross", I realized I was also going to have to write "Case Analysis".

 

Aaron Nelson  23:51  
That's the second book over here, right?

 

Jim McComas  23:52  
Because, yeah-

 

Aaron Nelson  23:54  
"Case Analysis".

 

Jim McComas  23:55  
Because that's, that's the fountain the content, as you said, of "Dynamic Cross" comes out of.

 

Aaron Nelson  24:04  
Yeah. And so, you know, both of these books are written after you're done practicing, but it's a it's a manner of, it's a method, it's a manner that you- you did throughout your career.

 

Jim McComas  24:16  
Yes.

 

Aaron Nelson  24:16  
And so, this isn't that you came up with it in 2011, you're just capturing what you've been doing for 30 years. 

 

Jim McComas  24:21  
Well, I developed, yeah, I developed- I developed it as I went along. I will say, even before my eighth year in practice, when I left DC, I had already figured out that the yes-no method of cross-examination, I'd already figured out that that wasn't sufficient. It was as good to learn and that you have to learn it because you couldn't spend six years or five years in a tutorial as an apprentice in this world. So, it was good to learn how to ask questions that minimized risk, but at the same time you were minimizing opportunity.

 

Aaron Nelson  25:06  
And so, the- just to- for the- for the non-lawyer listeners, or for even some of the lawyer listeners, what's the yes-no method? When you talk about that?

 

Jim McComas  25:14  
The yes-no method is the method that- that we all grew up on in which we're supposed to ask only leading questions and only questions we know the answer to, and therefore the answers from the witness will be monosyllabic. Yes, no, I don't know. I forget.

 

Aaron Nelson  25:38  
You're Jim McComas.

 

Jim McComas  25:40  
Right.

 

Aaron Nelson  25:40  
You grew up in Milwaukee.

 

Jim McComas  25:41  
Yes.

 

Aaron Nelson  25:42  
You went to Wooster.

 

Jim McComas  25:43  
Yes.

 

Aaron Nelson  25:43  
You went to Harvard.

 

Jim McComas  25:44  
Yes.

 

Aaron Nelson  25:44  
You're a lawyer.

 

Jim McComas  25:45  
Yes, that's exactly, exactly so that it's the lawyer that's the- that the jury is focusing on, not the witness. And the great story that gave rise to this concern was about some people have even attributed to Abraham Lincoln doing a trial, but I can't verify that. So, it's a mayhem trial. Two guys are brawling in the street that's barely lip- lit with oil lamps. One bites the other's ear off, supposedly, that's the term.

 

Aaron Nelson  26:11  
Allegedly.

 

Jim McComas  26:13  
And so leading questions come up and, you know, so it was dark, wasn't it? Yes. And there was almost no light. True. It would be hard you'd say to- say more than to see clearly more than 20 feet? Well, maybe, maybe 25. Okay, 25 and there were, what, 4, 5, 6, rows of people between you and where they were fighting. Yeah, probably four. And this goes on and on and on. And so, sir, it's true, isn't it, that from where you stood, you could not see the client's ear bitten off. No, I couldn't. And according to the yes-no method, you're supposed to sit down and declare victory. Instead-

 

Aaron Nelson  27:06  
Because you don't want to ask one question too many, right? That's one of the one of the rules.

 

Jim McComas  27:10  
Instead, you ask a non-leading question. Then how can you say he bit it off? I saw him spit it out.

 

Aaron Nelson  27:20  
It's very much a straw man story that I think, that talks about one of these things. Don't ask questions that you don't know the answer to.

 

Jim McComas  27:29  
Right. The problem, of course, is and so this terrifies young lawyers. They can just imagine being in that position, you know, so they must maintain over control. But the problem is that answer is coming out on redirect if it didn't come out on direct examination in the first place. 

 

Aaron Nelson  27:52  
First question I asked, if I'm the prosecutor is, "Mr. McComas had asked you about this, and you said you didn't, you didn't see that. What did you see?".

 

Jim McComas  27:57  
Yeah, yeah.

 

Aaron Nelson  27:59  
Right. And so, so it all comes out. So, this is something you developed, probably, it sounds like back at PDS, you were watching- 

 

Jim McComas  28:07  
Yeah, watching Gary do cross-examination. 

 

Aaron Nelson  28:11  
What would Gary do? Was Gary doing things that, when you saw him do something, was he doing something a little bit different than the training of the yes-no method that you had?

 

Jim McComas  28:18  
Yes, he was and I, I'm not entirely sure of the extent to which he was aware of it.

 

Aaron Nelson  28:26  
Sometimes-

 

Jim McComas  28:26  
It was just that he knew he had to do more than what would have been permitted. And he wasn't trying to do a cross-examination so that those of us watching in the audience would give him an A on the yes-no method. He was trying to do a cross-examination that would break down the witnesses and result in acquittal.

 

Aaron Nelson  28:46  
Yeah.

 

Jim McComas  28:46  
And so that was- yeah, and in fact, he says in the forward to "Dynamic Cross" that, you know, most good lawyers who are experienced vary from the yes-no method, but nobody had really tried to articulate the why and the when and the how in the same way that I presented in there. The other thing about that book is, it's not dispositive or definitive on this method of cross. My goal was to embolden lawyers, empower them not to be afraid to think of questioning in ways other than the yes-no method, and having done that, to provide them with the tools that they would need so that they can do that, which is why almost every chapter in there has examples after it.

 

Aaron Nelson  29:34  
Absolutely.

 

Jim McComas  29:42  
Lengthy examples. 

 

Aaron Nelson  29:45  
One of the things that that struck me with Gary Coleman's comments in the- in the preface or intro there in your book, is he says the method- the yes, no method is based upon attorneys always needed to be in control to be comfortable, and it's so much related to our own ego, right? It's not that the control is what's valuable. It might be. But if we are in control, we as human beings, we as lawyers, we feel more comfortable. And that's really at the core of what it is, is the attorneys are making their decisions sometimes under this, or at least that was your premise, I think, is that it wasn't about the case, it wasn't about winning, and it wasn't about persuasion. It was about doing what the attorneys are comfortable with.

 

Jim McComas  30:35  
Right.

 

Aaron Nelson  30:38  
And that's not always the most effective. 

 

Jim McComas  30:41  
An unfortunate method of describing this method, which I will not attribute to the person who said it, is that the yes-no method is "look good cross-examination". The lawyer scores a few points, doesn't ask anything that can't be backed up with prior statements or discovery or whatever, and sits down without having lost the case. Sure. Well, I have to say this, if ever juries were so committed to the presumption of innocence and proof beyond a reasonable doubt that yes-no would accomplish the job. It doesn't any longer.

 

Aaron Nelson  31:30  
Yeah.

 

Jim McComas  31:31  
I mean, we've now lived through 50 years of law and order every night on the television. I mean, it got to the point in Alaska where I'd have to voir dire on that because of the- the images there were being.

 

Aaron Nelson  31:54  
They're expecting to have that all wrapped up in an hour, right? You know, in many ways, you know- you know, if- if the- it's all about the comfort for the lawyers and asking questions that you know the answer to. You're stuck with the Johnson's letter. That's all you're stuck with is- and if the Johnsons get to submit their letter, and that's the only evidence, we're going to lose our cases, because that's the story that the state wants to do, and that's- if we- if we stick with that, we lose. And so, we-

 

Jim McComas  32:18  
Particularly true in homicide cases, which I have-

 

Aaron Nelson  32:23  
Tell me more about that.

 

Jim McComas  32:24  
I have pondered that. When I left PDS, I'd kept track of all the trials in the two years I was the trial chief, and it was very clear that in non-homicide cases, those cases could be won usually without the client testifying, unless it was something like self-defense or something. In homicide cases, it was very unlikely to win unless the client testified. And I've discussed it with people over the years, and then I found the same thing in Alaska, and limitedly in Milwaukee. And I think the reason is that there's no complainant.

 

Aaron Nelson  33:09  
You can't cross the decedent.

 

Jim McComas  33:11  
You can't cross the decedent, although sometimes in dynamic cross you do, but-

 

Aaron Nelson  33:16  
Through a proxy or something like that. 

 

Jim McComas  33:18  
Theoretically, you can't, at least in non-homicide cases, there's an accuser, and so there's a this versus this. And if the accuser, if you can create sufficient doubt about the accuser, then it's not necessary. 

 

Aaron Nelson  33:35  
Yeah, it's- it's, you're winning your case by taking apart the accuser's testimony, right? But you don't get to do that in a homicide.

 

Jim McComas  33:46  
Right, right. 

 

Aaron Nelson  33:48  
If you're enjoying this episode so far and you want to learn more, check out Jim's book, "Dynamic Cross-Examination". In the book, he shows us new ways to create opportunities to win, like how to build trust with witnesses, how to push cooperation as far as you can, and when and how to use non-leading questions. Jim's book changed my career. "Dynamic Cross" will revolutionize how you think about cross-examination. It's helped me win hard cases that otherwise could not have been won. It's a must read for any serious criminal defense lawyer.

 

Aaron Nelson  34:13  
Yeah, we were talking about the value of being able to cross-examine witnesses, and that's sometimes taken away in homicide cases for the obvious, obvious reasons. Is that part of what helped you to develop the dynamic cross in those- through those cross-examinations?

 

Jim McComas  34:45  
Well, I mean, to the extent it's- it's somewhat harder to- to achieve the acquittal that we want if we don't have an accuse and complainant. Yeah, that increases the importance of using a dynamic method in order to find the opportunities that are presented in court.

 

Aaron Nelson  35:14  
Sure.

 

Jim McComas  35:15  
And let me just mention one other example that I thought of when you were mentioning something before. Among the things that I noticed in D.C. when I was in appeals for a year was that most of the best lines for the defense did not come out of cross-examination, but instead were like you modeled before when the prosecutor would say, "Well, why did you tell two different stories?" on redirect, and some great answer would come out like, "Well, I really not sure. I just don't know what to say" or something. You know-

 

Aaron Nelson  35:56  
So, they're great answers for the defense. 

 

Jim McComas  35:58  
Yeah, great for the defense. Great for the defense because the prosecutor didn't know what, you know, what the witness was going to say, because they have not spent the time in analyzing the case.

 

Aaron Nelson  36:09  
Interesting. I wonder if I'm like everybody, right, always a student, never the master. I'm always, I'm always learning. I'm definitely think I'm using dynamic cross as much as I can. But now that you say that, I've always said my best crosses are on re-cross, and I wonder if that's not because my initial cross is a little more yes-no. And then in the redirect, their, I'm getting these great answers, and then from those great answers. I'm getting up and being able to do some other stuff, because it's-

 

Jim McComas  36:43  
Right.

 

Aaron Nelson  36:43  
It's- that is that- that second stuff, where you feel like you're in the moment, and you hear people giving explanations, and you just take something from that, and you're like, "Ah, yes, that helps me."

 

Jim McComas  36:53  
And let's look at the- functionally why- why that happens. First of all, your context is already established. The subject's been discussed. It's, you know, it's now within a circle like this. And you can, you can go right into the heart if you want. A big point, though, is, is to make sure you know, from the beginning of the trial, before the first witness takes a stand, whether this judge allows recross as a matter of right?

 

Aaron Nelson  37:17  
Oh, absolutely.

 

Jim McComas  37:25  
Many judges in D.C. did not allow recross-examination, which, again, was a major, of major assistance to prosecutors. However, it further legitimizes using a dynamic method on cross.

 

Aaron Nelson  37:33  
Absolutely.

 

Jim McComas  37:39  
You got one shot, if this is your time, you know?

 

Aaron Nelson  37:44  
And up in the north woods here, I've always had two rounds. Each side gets two rounds. But my good friend Jessa, who I tried some cases with, and unfortunately, she's recently passed. But she was telling me, in her jurisdiction, it was the state went, the defense went, then the state went, and there wasn't recross.

 

Jim McComas  37:50  
Right.

 

Aaron Nelson  37:51  
State got two chances, and that just, exactly like you say, then you better be dynamic in that first chance.

 

Jim McComas  38:09  
That's right, you can't, you can't wait to do it. 

 

Aaron Nelson  38:13  
So the- the yes-no method, we've talked about it a little bit more, but the basic, some of the basic rules, are, you know, always use a leading question.

 

Jim McComas  38:22  
Right?

 

Aaron Nelson  38:22  
Always one fact per question. And generally speaking, I hear the third rule is being, you know, work in a chapter method going from general down to specific. And you're not adverse to those. I say it, you say in your book that that is a- that is something that you need to master. You need to be able to absolutely do on your feet before you move into dynamic cross. 

 

Jim McComas  38:44  
Absolutely. And there are two main reasons for that. One is you have to walk before you can run fast.

 

Aaron Nelson  38:52  
Yeah.

 

Jim McComas  38:53  
So first you, first you develop that and the confidence that it's not going to be a disaster every time you stand up to ask a question. The other aspect of it, in addition to it being something you have to do to be comfortable enough to do the job when you're starting then it moves on into a tactical choice. There are some subjects that have to be leading by nature, such as impeaching a witness with a prior inconsistent statement.

 

Aaron Nelson  39:30  
Sure.

 

Jim McComas  39:30  
I mean, if you try and do that vaguely with- or with an open-ended question, it's going to take hours to get to the point, whereas, if you can just say "now you stated on Direct X, you gave a statement to the police last week. In that statement, you said blank. You acknowledge that's inconsistent, or so you told two different stories", or whatever your third question is beyond that. Yeah, that's- so there are some areas, sometimes technical areas of expert testimony, are easier to do using leading questions. But that doesn't mean you can't use non-leading questions when you get to the parts of that testimony where you're going to confront the person with the illogic of what they're saying or how it doesn't fit with the facts of the case.

 

Aaron Nelson  40:35  
Sure. Or especially when you-

 

Jim McComas  40:35  
Here's a good example, the best way to start off an examination of an expert in many, many cases, especially an investigative expert, like a police officer or detective or a scene reconstructionist, is to say, "Okay, so tell me, how do you do a scene reconstruction?". That's a non-leading question, and then make sure, because they're not relating it to this case and you're not relating it to this case, you make them provide you with all the things you're going to confront them with later. "Would you say that having made up your mind already before you start your examination is the proper way to proceed?". "Well, no, no, I wouldn't". "What would you say? Is it- you have to keep an open mind?", and on and on and on.

 

Aaron Nelson  41:23  
So, we get these- we're talking in a general way, not necessarily about the case in which you're establishing different- in almost some ways, you're establishing some rules or some guideposts that you're going to later come back and use to-exactly impeach you for

 

Jim McComas  41:46  
Exactly.

 

Aaron Nelson  41:47  
Impeach you for bias standpoint. 

 

Jim McComas  41:49  
And, you know, sometimes they can't help. I mean, they've if, if they want to appear to be an impressive sound expert, they're going to agree with no bias, and you're going to look at only some of the facts. "Are you going to look at all of the facts?". "Well, of course". I mean, "have you ever heard of people who look at selectively at the facts?". "Oh, no, I wouldn't do". "You would never". They just- setting up the standard, and you already know what you're going to do with their answers, because you can read their report and their testimony, if they gave any. 

 

Aaron Nelson  42:29  
We can see where their flaws are going to be right based upon this general to begin with. 

 

Jim McComas  42:33  
There's an example like that in the "Dynamic Cross" book.

 

Aaron Nelson  42:38  
Yeah, let me- let me pull you back a second, because I we've talked about some- some training, and maybe this relates to it, but you also said your- your wife is a language specialist, speech pathologist? One of our other guests that we had on, Joe Bugni, an attorney from Madison, noticed here on my shelf, a bunch of books from David Foster Wallace. He's one of my favorite authors, and he pointed out to me that I was missing the book "Quack This Way", a book about a David Foster Wallace and Brian Garner, who talked language in writing. And Brian Garner is a famous legal writer who wrote a book with Supreme Court Justice Scalia on how we should write. And there was something in here that just struck me as similar to you with this, yes-no method that we wanted to talk about, and so I'm just going to read a portion of this, all right? So, Garner asks Wallace, why children are taught not to begin sentences with conjunctions, and Wallace says, "well, teachers have a larger agenda. They're trying to beat out of students certain habits. Therefore, they say, don't do this. It's nothing but trouble, when the truth is, you're probably going to want to do the other thing some of the time, but we don't have three hours to sit down and talk to you for three hours as a third grader about the times when adverbs are okay to use in this manner, or when conjunctions are okay to use in this manner. And Foster Wallace says, well, it would have been nice if she would have said, for now, don't do it. Later on, as part of your lifelong apprenticeship, you're going to learn there are certain adverbs, [or in our case certain manners] that are, in fact, graceful and better ways to do things". So, in language, when we teach children language, when we teach them how to write, we teach third graders rules, but as they get older-

 

Jim McComas  42:38  
We expect.

 

Aaron Nelson  44:23  
We expect them to be able to know when the rules don't apply. And I feel like, for whatever reason, maybe it's because of age. When we're teaching lawyers, they're 24, 25, 26. They're educated, they're smart, but they're really third graders in law. 

 

Jim McComas  44:57  
Well, the problem is that they are third graders when it comes to trying cases.

 

Aaron Nelson  45:05  
So, we need to give them these rules. And there's nothing wrong with when you're just coming out of the gate having those rules.

 

Jim McComas  45:10  
No, absolutely. And like I say, I mean, they can be extremely helpful later on, too, because it's the fastest way to get to a point many times.

 

Aaron Nelson  45:19  
Sure.

 

Jim McComas  45:20  
It's just that because you shouldn't try and develop dynamic cross-examination in the first year of your practice, doesn't mean that you should be unaware of it, and it doesn't mean that by the second or third year, you shouldn't be identifying opportunities where you could use it and- and then, and then you're gone, then you're gone. 

 

Aaron Nelson  45:45  
Yeah. What I wish we had back was you back teaching dynamic cross because as I, as somebody now who is still always trying to develop my cross-examination, we have so many programs that are out there that are wonderful for attorneys that have one to five years of experience, maybe even eight years of experience. But some of the stuff in the "Dynamic Cross" book, this is something that even 20-year attorneys, 30-year attorneys, we can still be developing and growing on, but there's- other than my reading the book, in the- in the individually, here in my own office, there's not these same workshops, the workshops to do. What are your- how do we get to that place?

 

Jim McComas  46:26  
Well, one of the last things I did in Alaska, when I was out of cases and I knew I was going to be retiring, was that I held dynamic cross-examination week sessions.

 

Aaron Nelson  46:47  
Oh.

 

Jim McComas  46:47  
Weeklong sessions for however many lawyers, I'm thinking there would be at least six, maybe eight.

 

Aaron Nelson  46:47  
Okay.

 

Jim McComas  46:48  
And that meant that I had to find witnesses and arrange to have them available, and all the rest of it, and we'd spend- it was a fascinating process. After the first day, there was a lot of grumbling. 

 

Aaron Nelson  47:17  
From the attorneys?

 

Jim McComas  47:18  
Yes. I only lost one person, though. I must- I must have run four or six weeks of these. Only one person left. The second day, where we're still talking about the method and examples, and they're just starting to try it themselves. There was still some mumbling. By the end of the third day, there was genuine excitement, and by the end of Friday, they couldn't wait for court the next Monday.

 

Aaron Nelson  47:55  
To go and try all these new methods.

 

Jim McComas  47:57  
Right, because now they saw how it worked. Now they had done it themselves in a setting where nobody's life was at stake. And, you know-

 

Aaron Nelson  48:09  
How much do you think-

 

Jim McComas  48:10  
It's important.

 

Aaron Nelson  48:11  
Yeah, how much- you were talking about at PDS, they have this six-to-eight-week training method, right? And that's unique to public defender systems across-

 

Jim McComas  48:23  
When I was there in the 70s.

 

Aaron Nelson  48:25  
You know, again, I don't know. I'm happy to be proven wrong, but I don't know that a lot of those public defender services have the ability to do that. They don't have the resources. Whether it be-

 

Jim McComas  48:40  
Actually, everybody has the resources. I did manage to get a two-week program, the first ever in Alaska started before I left. They would only allot two weeks, which I said wasn't enough, but at least we had that, and they had a training director who was supposed to keep that going but the bottom line is, you're taking these people out of service for six weeks. Once you do that one time, it catches up with itself. It's like, you know, they're coming in now and they're doing a better job, and they're enjoying it more, and everybody is going to be more successful and less fearful, and all it took was a dislocation of the first group. You also have to do your hiring in a way that you have one or two groups a year so that you can have a training period.

 

Aaron Nelson  49:32  
Sure.

 

Jim McComas  49:33  
So, but you know, and it doesn't matter what your resources are, your resources are going to be the same, except for that period, that period of training. 

 

Aaron Nelson  49:43  
Yeah. How much do you think you know? Like I said, Coleman put in your book about the comfort level of attorneys, right? And obviously, I would imagine the comfort level is oftentimes based upon the training, the training that we do. So, it would seem to me, logically, then, that, like if we make- give more training in dynamic, we make people more comfortable with the dynamic crosses, that's now, all of a sudden, we're going to be able to do that.

 

Jim McComas  50:08  
There's no doubt about that. And the failure to do so this is, this is the sad thing, the failure to do so in criminal defense law leads, and it doesn't take five years. It can take a couple of years. Leads to a resentful feeling by the lawyer towards the client, because I lost your case, because you had your case, sure, and now I'm a failure, you know, and it's your problem. We never permitted any, and I've never permitted, in my presence, any bad mouthing of clients, or making jokes about clients or anything like that. I mean, if, if you want to be that way, go and work for the prosecution. That's where, that's where most people like that do go. They want all the odds in their favor. They want the judge in their favor. They want, you know, society in their favor. You know, if that's, if that's what you think you should do, then go and do that. 

 

Aaron Nelson  51:15  
Yeah. I mean, it really comes down to, I think the- the quote that you had said before that's in your maxims, but I know your friend Rick Friedman put it in his book here, and because it's just- it's a such a wonderful quote, and I have it I haven't written down on one of my cards here, right? Your words, "Every human being deserves at least one other human being on their side. The more reviled and despised, the more they need and deserve at least some human connection. I fight for the humanity that is within everyone. I insist that it be respected, right, our dignity and humanity always need to be recognized".  Those are your works and that that this podcast is called Sanctuary in the Jungle, and we've talked a little bit about sanctuary, you and I have off the record, but to me, that's the essence of sanctuary, right there. Those words that you that you've shared and because of that, you need to take some risks.

 

Jim McComas  52:20  
Yeah, well, absolutely. And you know, they need to be intelligent risks. And on the other hand, once you start doing it and getting used to it, you find out that really, it's not that risky at all, you know? You become comfortable with a different way of asking questions, and then you can intersperse both. Sure, and, and then, then, at that point, you basically are getting where you want to be, yeah. I mean, in

 

Aaron Nelson  52:44  
Sure.

 

Jim McComas  52:44  
And, and then, then, at that point, you basically are getting where you want to be. 

 

Aaron Nelson  52:48  
Yeah, I mean, in your book, you- you lay out the different ways in which you can do it. And even though it's not, yes-no, you know, I think you have all types of other methods, right?

 

Jim McComas  52:59  
Right.

 

Aaron Nelson  52:59  
You can use, you know, we're- even as we go through here, you're restricting the witness to one subject, right?

 

Jim McComas  52:59  
Yeah.

 

Aaron Nelson  52:59  
You're developing safe zones.

 

Jim McComas  53:05  
I never understood why that wasn't done- I mean, there that takes a leading question.

 

Aaron Nelson  53:13  
Sure.

 

Jim McComas  53:14  
Okay, "okay, sir, I am now going to ask you not about what happened at the time of this so-called robbery, I'm going to ask you about what you were doing between lunch and two o'clock that afternoon. Do you understand the area I'm asking you about?". That greatly reduces the likelihood that the witness is going to go running off into some detrimental outburst or whatever, and you use a leading question to do it. 

 

Aaron Nelson  53:46  
I'm going to ask you some questions about-

 

Jim McComas  53:48  
It makes it safe to-

 

Aaron Nelson  53:50  
Yeah. 

 

Jim McComas  53:50  
Proceed.

 

Aaron Nelson  53:51  
So, I'm going to ask you some questions about muskie fishing on the Lake du Flambeau- Lac du Flambeau, right? And so if you go off talking about deer hunting in Montana-

 

Jim McComas  53:59  
Right, right.

 

Aaron Nelson  54:00  
I can be like, "No, Jim, we're over here".

 

Jim McComas  54:03  
And you know, the judge knows as well. It's helpful to the judge, because if the judge is called upon, a lot of judges will reflexively sustain objections by prosecutors. You know, if you, if the prosecutor objects to something being beyond the scope, or something like that. If you've set the scope and identified it and the witnesses accepted it, your likelihood of winning an objection is better.

 

Aaron Nelson  54:36  
Yeah, absolutely. One of the other things that I found, I think you talk about it in here. But I may have just intuited from other times that you and I have talked is if you can do that with an easel, and you can put some of the words that they've set up there so that anytime they go off script, off, you're like, "No, we're- we're talking about this". And you can almost just point to the easel as a- as something that allows you to, as you say here, right, you're we're talking about this one subject. I wrote the subject down on the board. Let's talk about this.

 

Jim McComas  55:08  
Right.

 

Aaron Nelson  55:09  
So again, that- and that gives you a safe zone, right? Yep. And what I've noticed part of this practice is it's going to be different with citizen witnesses as opposed to police witnesses as opposed to expert witnesses. Though, where you move on the continuum between yes-no and dynamic... Sounds like you disagree.

 

Jim McComas  55:34  
I think- I think what I'm going to say is, although it would be nice to be able to have categories and say more one than the other here that it's not necessarily going to follow. I mean, you can have a civilian witness with an enormous bias.

 

Aaron Nelson  55:52  
Sure.

 

Jim McComas  55:52  
You know, one that's not been even disclosed before examination. That person is a person that you may need to use a lot of dynamic cross-examination with. Experts in general, a lot of the questions might be yes-no questions when they're technical questions, but the construction or deconstruction of that witness part isn't going to- isn't going to be phased by the fact that they're an expert. 

 

Aaron Nelson  56:22  
Yeah, and maybe, really, you know, trying to do some self-reflection here. Maybe it's really just about my comfort. Obviously, I'm more comfortable probably because I feel it's my world when I'm cross-examining a citizen witness and a police officer is going to feel more comfortable in that witness chair, or an expert's going to feel more comfortable. 

 

Jim McComas  56:42  
See, that's an interesting thing to say. I have always thought that police witnesses were easy witnesses to examine.

 

Aaron Nelson  56:49  
In some ways.

 

Jim McComas  56:50  
Because they're so predictable. They're totally predictable. You can, you know, you can look at their report, and you can hear on direct where they've stretched things for the prosecution that's not even in the report. And now you know everything you need to know about who this officer is. And you could do it like we mimicked earlier on, an expert witness with a police officer.

 

Aaron Nelson  56:50  
Sure.

 

Jim McComas  57:13  
You know, let's talk about your report. Why do you bother writing a report? Why is it important to write a report? You know?

 

Aaron Nelson  57:20  
They're going to, they're going to validate their own- 

 

Jim McComas  57:22  
They're going to validate their own report. And, you know, and I take it that at least any possibly important fact or observation will be in your report, you know, like that. So, I, I'm not, I'm not a big one for categories, more one for taking the witnesses as they come.

 

Aaron Nelson  57:45  
Yeah. Well, I could go, I could talk for hours about the technical parts of dynamic cross, but I want to focus on move on a little bit from that. You and I can do that perhaps at another time. But some of your maxim, you know, there's maxim that you already talked about with the dignity that humans have. Tell me about when you first started out doing this work and your family, how did your family feel about you and in the work that you're doing, even though you come from a background in which clearly, they see everybody. But you got some pushback initially, from some people you love, that loved you.

 

Jim McComas  58:29  
I'm not so sure it was pushback as hope that there would be a change. My dad used to refer to me when I came home from DC, and we met some of his friends or colleagues or something, is my son Jim, who works for the government in Washington, DC. And then I would stick out my hand and say, "Yeah, I'm an assistant public defender".

 

Aaron Nelson  58:57  
Yeah. Did your grandpa?

 

Jim McComas  59:01  
Yeah, he, I can't remember the exact date, but I had been a lawyer, and he lived in Evanston, Illinois. He'd been a Presbyterian theologian.

 

Aaron Nelson  59:21  
Okay.

 

Jim McComas  59:22  
So we had talked about the Bible quite a bit when I was growing up, and then I visited him, and he was, at this stage, an old man. He wasn't working anymore, and crime was an issue in Chicago.

 

Aaron Nelson  59:36  
Sure.

 

Jim McComas  59:37  
And he was afraid. And he said, "Jimmy, I don't understand how it is that you are representing these people, you know? I mean, the crime is terrible". I said, "Grandfather, I think I'm doing it because you taught me to".

 

Aaron Nelson  59:58  
And what did he teach you?

 

Jim McComas  59:59  
He said, "What do you mean?". And I said, "Well, it's in, it's in the New Testament, grandpa, something about even, as you do for one of these, the least of these, my brethren, you do unto m", referring to Christ. And he got this look over his face and understood that that was an apt quotation. I think it's from Matthew, I could be wrong, but in any event, about a month later, I got a book in the mail called "Attorney for the Damned", and it was closing arguments and speeches of Clarence Darrow.

 

Aaron Nelson  1:00:48  
Sure.

 

Jim McComas  1:00:49  
Who had grown up in Chicago at the same time my grandfather had and- and he wrote in it something- he wrote the Greek word for advocate. And he says, "You are an advocate. This is yours. You speak for another". And then he put in some more Bible verses, and then he signed it: Senior Partner.

 

Aaron Nelson  1:01:18  
Love it. Love it. We've got a copy of "Attorney for the Damned" right here.

 

Jim McComas  1:01:22  
There it is. "Attorney for the Damned".

 

Aaron Nelson  1:01:21  
On our bookshelf here as well. I don't have the wonderful inscription, no, from, from, from grandpa, but that, but that's okay. There was a, there was a time when you left the PDS, right?

 

Jim McComas  1:01:24  
Right. 1986.

 

Aaron Nelson  1:01:29  
What- 1986.

 

Jim McComas  1:01:38  
Yeah.

 

Aaron Nelson  1:01:38  
They did a celebration for you, and right? And they gave you a gift. Let's see what that gift is. 

 

Jim McComas  1:01:47  
And the background on this is like I mentioned earlier about the hug your lawyer. There were all these T-shirts that have gone around at various NACDL type events that say, "Have you hugged your lawyer today?". Okay, well, this is what the shirts that were distributed at my going away party said.

 

Aaron Nelson  1:03:37  
"Have you hugged your client today?" And that's a picture of you hugging your client. 

 

Jim McComas  1:02:16  
Yeah. I'll tell you about that in a minute. And here's, here's my effort at an emblem, no- no prison, no jail. So that was on the front page of the Washington Post. It was a horrible, horrible case. My client was 50 some year, or 60 some year-old man. He was accused of stabbing to death the daughter, the two-and-a-half-year-old daughter, and the babysitter of a couple of D.C. police officers. And there was really no evidence against him, except he confessed. And it was the first videotaped confession that was admitted in Superior Court, the first one that the police, I think, had done, and he was going into alcohol withdrawal, obviously, through the questioning and made statements claims of injuries he'd inflicted on the child, which were categorically false, based on the autopsy photos and the medical examiner's test- testimony could not have happened.

 

Aaron Nelson  1:03:28  
Okay.

 

Jim McComas  1:03:29  
It's a heart of heart trial. The motion to suppress hearing lasted a month.

 

Aaron Nelson  1:03:37  
Wow.

 

Jim McComas  1:03:37  
I had a neurologist that I'd found who got involved and subsequently lost all his government contracts because he had testified for the defendant in this case. The judge let most of the confession in, enough, enough for him to be convicted. After he was convicted, the trial took a whole- took a whole month after that. The paper said that the jury reported that they were split six to six at the beginning, but then degenerated into guilt. So, this is heartbreaking. So anyhow, so I put my arm around this guy, and it ends up in the paper, I actually think the arm around the client was probably at the sentencing, and the judge that I appear before is outraged that I put my arm around the client and the judiciary public defender wire back and forth to the courthouse "if you try that in my courtroom, blah, blah, blah, all this other stuff". And I'm just saying he's going to die in prison from two life sentences, you know? Unless his appeal goes through. He needed a hug.

 

Aaron Nelson  1:05:04  
Yeah.

 

Jim McComas  1:05:05  
He needed me to stand up for his humanity. So that was, you know, that's the ethos. 

 

Aaron Nelson  1:05:12  
Absolutely the ethos. So, you know, that's what- why do you think that is? I mean, you know, you, you represented him, due to your, you know, for- for moral reasons, for legal reasons, the process resulted in him being convicted. Not the result you wanted, but apparently, the result the judge or the prosecutor wanted.

 

Jim McComas  1:05:33  
Undoubtedly.

 

Aaron Nelson  1:05:35  
And yet they're still mad at us, just recognizing their humanity that they're mad at you in that moment. What? Why do you think that is?

 

Jim McComas  1:05:43  
I personally think that for many judges, they have to feel that way so that they don't have to look into themselves because and grapple with the amount of suffering that they- that they create.

 

Aaron Nelson  1:05:58  
Sure.

 

Jim McComas  1:05:59  
You know?

 

Aaron Nelson  1:06:00  
I mean, it's hard. It's got to be—

 

Jim McComas  1:06:01  
Especially in DC, where prison sentences where, you know, I've heard of some of these sentences in New York and even in Wisconsin, that's seem awfully light to me. I mean, if you were convicted of murder, you were going for life. I mean, no doubt about it, there's no death penalty, thank God. But very heavy sentences.

 

Aaron Nelson  1:06:20  
So, basically, you're recognizing the client's humanity in some ways, affected the consciousness or the conscious of the guilt of other people who are now going to need to do something to this human.

 

Jim McComas  1:06:33  
That's my guess.

 

Aaron Nelson  1:06:35  
Well, this has been fantastic, Jim. I really appreciate it. Thank you so much. Like I said, the- your books, they changed my career. I still they're my go to anytime that I have a trial, and I'm hoping to continue to build off of those, because, as you say, it never ends.

 

Jim McComas  1:06:53  
That's right, that's right. And I thank you very much. The whole reason, I guess I should say that when I retired after 30 years of murder, 30 years was enough, and we came back to northern Wisconsin, largely because the intensity of the focus that was necessary and the effort, both physically and mentally, was so great that I owed my wife and boys more than I can ever repay them.

 

Aaron Nelson  1:07:26  
Sure.

 

Jim McComas  1:07:26  
And so I just decided I'm not going to keep going. I've done what I could do. But then I thought a couple years later, I really ought to write these books, because at least, it seems to me that what they're saying hasn't been laid out quite so clearly and usefully before, and the fact that you have found them to be helpful makes me just feel tremendous. 

 

Aaron Nelson  1:07:54  
If you're a criminal defense attorney out there right now and you haven't got those books, you need to get those books. You will save clients lives. So, thank you, Jim, appreciate it.

 

Jim McComas  1:08:06  
Thank you, Aaron. 

 

Aaron Nelson  1:08:15  
Thanks for listening to Sanctuary in the Jungle. This episode was brought to you by Nelson Defense Group and MadeDaily. Subscribe to Sanctuary now and never miss another episode. You can also sign up for our newsletter on our website and follow us on social media for new bonus content. We'll see you next time at the library for another episode. Until then, stay strong and carry the hope.