Defense witnesses who aided and bolstered the State’s case against Bundy

 “The commander must decide how he will fight the battle before it begins. He must then decide how he will use the military effort at his disposal to force the battle to swing the way he wishes it to go; he must make the enemy dance to his tune from the beginning and not vice versa.”

- Field Marshal Viscount Montgomery of Alamein, "The Memoirs of Field Marshal Montgomery", 1958

      George Dekle, the prosecutor in the Kimberly Leach case, co-authored a book entitled “Cross-Examination Handbook: Persuasion, Strategies, and Techniques”, which I’m  sharing on Internet Archive:

https://archive.org/details/cross-examination-handbook-persuasion-strategies-and-techniques

       The other authors of the book are William S. Bailey and Ronald H. Clark.

      The chapter “The Ted Bundy Illustration - Concession-Seeking Cross” illuminates the context and circumstances in which Bundy’s prosecutors enjoyed a significant advantage over Bundy’s defense team. Advantage secured by the prosecutors thanks to their attempts to seek “concessions” from the defense’s witnesses. In other words, thanks to a trial technique called concession-based cross-examination.

       Concession-based cross-examination uses the defense witness to aid or bolster the State’s case. That is, the prosecutor seeks those facts or circumstances with which the defense witness must agree that help the State’s case. And in Bundy’s Chi Omega and Leach trials, it allowed the prosecutors to elicit advantageous testimony from the defense witnesses.

      The chapter related to Ted Bundy in the “Cross-Examination Handbook”, first discusses how the cross-examination of the doctor who attacked the factual sufficiency of the prosecution’s case in the Leach trial, aimed at obtaining a concession that Kimberly Leach’s death was a homicide.

     Dekle’s goal in the Leach trial was for Bundy’s witness, Dr. Joseph Burton, an Atlanta medical examiner, to say that Leach’s murder was a homicide (factually sufficient to support the legal theory of murder). The doctor called by the defense had previously testified there was no evidence of homicidal violence to the neck area, after the State’s medical examiner, Dr. Peter Lipkovic, had opined that the victim died of “homicidal violence to the neck area, type undetermined”. In this case, the diagnosis “homicidal violence to any area” was deemed “factually sufficient” by the prosecutors, and they did get Bundy’s witness to agree with that diagnosis, by asking the witness leading questions.

Joseph Lawson Burton, a licensed physician who operated as a consulting pathologist to determine the medical causes of diseases and death, is seen in this photo examining a bone at the Cobb County medical examiner’s office. Photo by William Berry, published in The Atlanta Constitution, October 28, 1994

      According to Burton, decomposition made it impossible to know what caused Kim’s death or when she died. The cross-examination aimed at proving that Burton could rule out natural causes, accidental death and suicide as a manner of death for Kim, while making sure that Burton could not rule out homicide.

      And Burton readily admitted all the above four points, and was led to conclude that Kim had been murdered. Burton did not disagree with Lipkovic about the manner of death, he simply disagreed about the cause of death.

       The prosecutors allegedly anticipated that the defense might produce a witness like Burton, so they had carefully worded the indictment to allege that Bundy killed Kim “in some manner and by some means to the grand jury unknown”. The jury didn’t need to believe the killing was by homicidal violence to the neck area: homicidal area to any area was good enough for the prosecutors. Dekle boasted in his book about thanking Victor Africano (Bundy’s lawyer) for calling a backup medical examiner to confirm Lipkovic’s findings, and apparently Africano resented Dekle’s attempt at humor.

      When the prosecutor asks the expert witness called by the defense questions that make the expert witness feel that the facts have been well established by other testimony or evidence, so denying them might make him appear foolish or dishonest, then the expert witness  is expected to give up refuting the prosecutor's thrust against the defense.

     The chapter then reveals that with psychologist Emanuel Tanay, at Bundy’s hearing for the Chi Omega murders in Tallahassee, the cross-examination was short. At the hearing, Tanay testified for the defense that Bundy was not competent to stand trial because he was a sociopath. Tanay opined that Bundy’s sociopathic personality disorder was so severe it prevented him from assisting in his defense and therefore it rendered Bundy incompetent.

     The Chi Omega prosecution team retained psychiatrist Hervey Clerkey, who opined that while Bundy had certain capacity issues, he was competent to stand trial. And Clerkey used the term “psychopath” to describe Bundy.

      When the prosecutor cross-examined Tanay, he asked about any authorities the doctor might rely upon in diagnosing sociopathic personality disorder. The doctor said that probably the most influential work on the sociopathic personality was a book entitled “Mask of Sanity”, written by a Dr. Hervey Cleckley. A few more questions revealed that Tanay stood in awe of Cleckley and his work, and would readily conceded that Cleckley was the premier expert in the field of sociopathy. Tanay’s admissions was what the prosecutors wanted from him, and after Dr. Cleckley testified for the prosecution, the judge had no problem finding Bundy competent to stand trial.

Emanuel Tanay in a screen capture from a March 16, 1987 interview (courtesy The Jeff and Toby Herr Oral History Archive)

     The fact that Tanay so readily trusted Cleckley’s conception of psychopathy, and in fact he admitted that he oriented himself by it, he ended up emphasizing the central point raised by the prosecution: i.e. that Bundy was competent to stand trial because the premier expert in the field, Cleckley, with whom Tanay agreed, considered Bundy “competent”.

    Cleckley's conceptualization of the psychopath was descriptive: interpersonally, psychopaths are grandiose, arrogant, callous, superficial, and manipulative; affectively, they are short-tempered, unable to form strong emotional bonds with others, and lacking in empathy, guilt, or remorse; and behaviorally, they are irresponsible, impulsive, and prone to violate social and legal norms and expectations.

     Professional expert witnesses are usually very talented and experienced witnesses. They are masters at cross-examination escape and evasion techniques. Experts often fail to answer questions directly. Sometimes they fail to answer the actual question asked at all. They run to escape and evade talking about everything but the answer to the cross-examiner’s question. When faced with this form of escape and evasion, the prosecutor must pursue the point and make sure the question is answered. Maintain control of the witness.

    Burton and Tanay, however, they didn’t seem to be witnesses who refused to answer the prosecutors’ questions. 

    The cross-examination, which lawyers are expected to prepare thoroughly, is the comfort of all lawyers. If a lawyer who is aggressive, for instance, makes statements that the opposing counsel objects to and the judge sustains their objection, then the aggressive lawyer gives up and moves on to the comfort of his prepared cross.

      In “Cross-Examination Handbook”, the authors also wrote that “Although it cannot be ascertained how early Bundy began killing, his known killing spree started in 1974”.

     When William Hagmaier asked Bundy when his homicides began, Bundy said the first homicide that he recalled was in May 1973. According to Bundy’s taped 22 Jan. 1989 interview with Hagmaier obtained by Richard Duffus from the FBI.

     When Robert Keppel asked Bundy about the time frame within which his murders occurred, Bundy told him that 1974 was the actual starting year, whereas in 1973 and 1972 there had been several attempts leading up to that, but no murders. According to the transcripts of Robert Keppel’s 1989 interviews with Ted Bundy obtained by me from the King County Archives.

     So it pays to bear in mind that there were inconsistencies in Bundy’s own admissions to investigators in 1989, with regard to the time frame of his murders.

     The authors of “Cross-Examination Handbook” also wrote that the evidence in the Kimberly Diane Leach trial “included testimony of an eyewitness who saw Bundy with the girl”. It is highly doubtful that the eyewitness, Clarence Anderson, saw Bundy with Kimberly Leach, since Anderson’s initial statement to the police and the prosecutors gave “April” 1978 as the date when he witnessed a man leading a girl to a van, whereas Kimberly Leach was abducted on February 9, 1978. Anderson’s initial statement has been discussed by me here:

https://tedbundyarchive.blogspot.com/2021/07/the-first-exchange-between-george-dekle.html