Kranish and Elliott on the phone: a fictional recreation

Reading Will Collier's post on VodkaPundit about the Boston Globe's Mike Kranish and SwiftVet Captain George Elliott{note1}, and some of the comments on that thread, have put me into a speculative mode late at night. 

As a lawyer, I deal with facts and evidence.  When I practice my profession, I'm bound by canons of ethics, the violation of which can get my license jerked.  But hey, here on BeldarBlog, I can also be a pretend-journalist, or a pretend-novelist, or both at the same time!  Last I checked, neither of those two occupations required a license.

So what follows, unlike my two prior posts about Captain Elliott and the affidavits, is pure fiction and some parody thrown in to boot.  It's purely a creation of my imagination.  At best, call it informed speculation — based on having closely re-read both of George Elliott's affidavits and the Globe's "retraction" story.  It's also based on 24 years of drafting affidavits; cross-examining many a witness myself; and watching many witnesses cross-examined about such affidavits, and then trying to "rehabilitate" such witnesses.  So I'm not saying at all that it did, but just that it could have gone something like this:

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Kranish:  Hello, Captain Elliott, Mike Kranish here, Boston Globe.  Thanks for taking my call.  Now, I want to ask you about this line in your affidavit from July 21st.  Have it in front of you, sir?  Okay, you said in paragraph 3 on the second page, and I quote, "For example, in connection with his Silver Star, I was never informed that he," meaning John Kerry, "had shot a wounded, fleeing Viet Cong in the back."  You with me, sir?

Elliott:  Yes, that's correct.

Kranish:  Okay, now flip back a page with me sir.  You also said, in paragraph 1 on page 1, and I quote, "I am able to swear, as I do hereby swear, that all facts and statements contained in this affidavit are true and correct and within my personal knowledge."  See that, sir?

Elliott:  Yes, I'm with you.

Kranish:  So I need to ask you some questions about that firefight that was the basis for Kerry's Silver Star.  I want to know what you personally saw happen, sir.

Elliott:  What I personally saw?  Well, I wasn't there.

Kranish:  Oh.  You weren't there.  I see.  So Captain, my next simple question to you, sir, is how did you see John Kerry shoot that VC in the back, since you weren't there during the fight?

Elliott:  Well, I didn't actually see it—

Kranish:  But sir, you said that "all facts and statements contained in this affidavit" were "within [your] personal knowledge," didn't you?  I just read that to you!  That is your signature on the second page, isn't it?  Under oath and subject to the penalties of perjury?!?

Elliott:  Oh, my.  Yes, it's my signature.  Oh, my.  Let me look at this again, I need to—

Kranish:  You know what perjury is, Captain?  You know how many years people can go to prison for when they commit perjury?  You know what kind of trouble perjury is, Captain?

Elliott:  Perjury? What? ...  But ...  Okay, I see where you might have read this, this broad statement on the first page about "personal knowledge," and thought that I was—

Kranish:  So did someone pressure you into telling a lie in that affidavit, Captain?  Was it Rove? Cheney?  Huh?  They told you how important it was for political reasons that you say that, or threatened you maybe that someone in your family would get in trouble ....

Elliott:  Okay.  I see what happened.  I see where I went wrong.  It was a terrible mistake probably for me to sign the affidavit with those words. I'm the one in trouble here.

Kranish:  I'll bet they pressured you to lie, didn't they?  C'mon, you can tell me, I'm a reporter, and what you tell me is protected by the First Amendment.

Elliott:  No, nobody pressured me to lie, Mr. Kranish.

Kranish:  Well, then, why did you lie under oath in that affidavit, Captain?  I mean, it's right there in black and white!  You said you were there!

Elliott:  Oh, my.  I — I guess I just didn't read it carefully enough.  I'm really sorry, I regret signing it if it gives the impression that I was there during the combat.  I read it too fast, maybe.  Just too fast .... Now, I know:  That's no excuse.  But the publishing house lawyer said they were trying to meet a deadline and there were time pressures to get my affidavit finished, and I tried to help him out, but now I wish I'd taken more time to look at it more carefully.  Gosh.  I should have taken more time to be more careful.  I knew it was wrong ... the rush, I mean. In a hurry I signed it and faxed it back.  That was a mistake.

Kranish:  Well, you said under oath that Kerry shot that poor boy in the back, didn't you!

Elliott:  Well, I don't know, I wasn't there.  It really doesn't matter whether it was in the front or the back, what matters is—

Kranish:  Aha!  So do you now think that Kerry shot him in the back, whereas before you didn't think Kerry shot him in the back, based on what you actually saw with your own two eyes and can swear to, Captain?

Elliott:  Do I ... ?  What, now?  Do I still not ... ?  Uh, well no, I mean .... I still don't think he shot the guy in the back.  Not based on something I saw myself.  I never really knew one way or the other, based on what I actually saw with my own eyes, you see.  Of course, now, John Kerry admits in that new book that just came out this year — hey, did you say your name is "Kranish"?

Kranish:  Captain, are you trying to say you gave him that Silver Star by accident or while you were sleepwalking?  Or don't you still think Kerry deserved that Silver Star?  Which you did mean to give him on purpose at the time, didn't you?  Or did you?

Elliott:  Now, wait a minute here.  What was your question?  Do I — no, of course I wasn't sleepwalking.  Do I — I — still think Kerry deserved that Silver Star?

Kranish:  Okay, thank you for clearing that up, Captain!  We've got what we need.

Elliott:  Clearing up ... ? But ... Hey!  "Kranish"?  Hey, wait a second, didn't you write that new book where Kerry admitted —

CLICK ... buzzzzzzzzzz ....

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Fiction.  Purely a creation of my imagination — as plausible as any other set of guesses, unless and until the Globe releases a tape recording.

But thus could the Globe quote the man to make him look like he's a liar who's changing his story.  Thus could the Globe insist on Saturday, notwithstanding the second affidavit, that it "stands by its story."  (The lines in green are purported quotes lifted directly from the Globe.)  Thus could the Globe, in a lawsuit, prove that its quotes were "accurate," each and every word of them — at least within the bounds of a Clintonean concept of accuracy.

Far-fetched? 

Naw, I've seen these exact same cross-examination techniques used with live witnesses on the stand and in depositions.  First you get the witness to panic, to overreact, to some arguable inconsistency.  You harp on it; the panic increases.  You mention the p-word.  Then, if you can get away with it, your questions get less precise and faster.  You ask several at once.  You interrupt the witness to break his train of speech and thought.  You add confusion to the panic.  Throw in some double-negatives.  You seize a partial answer, out of context, and dart on to the next question (or accusation).  The funny-sad thing is, the more honest the witness is, the better these techniques work!  And imagine how much easier it is to get away with it, if you're a reporter doing a phone interview, rather than if you have an opposing lawyer objecting and a judge to decide what's fair!  C'mon, folks — you've seen televised news conferences where reporters do exactly this same kind of stuff — haven't you?

Look closely at the second affidavit.  Look how much more carefully it handles the subject of Elliott's personal knowledge.  Friends and neighbors, I submit to you that the "personal knowledge" language in the first affidavit must have been what Kranish was harping on, because that's what they went to so much trouble to clear up in the second affidavit.  To my eye, it was obviously drafted by a seasoned trial lawyer who knows these kinds of tricks.

It's a pity that the first one probably wasn't.

So, gentle readers, my question to you is this:  Should I keep my day job?  Or try to become the next John Grisham?  Or should I try to get a job at the Boston Globe?

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{note1}Elliott is sometimes referred to (for instance in the affidavits) as "Captain," but elsewhere (for instance in the SwiftVets' video from which I grabbed the screencap reproduced in my post below) as "Lieutenant Commander."  No Caliban explains:

The short answer appears that he was a Lieutenant Commander at the time of his Swift Boat tour and was later promoted to, and retired as, a Captain.

The confusion is understandable, as the ad itself identifies the Swift Boat Vets with their ranks at the time of their Vietnam tours, including George Elliott as a Lieutenant Commander.

(Hat-tip to Amy Ridenour of National Center Blog.)