51 On the Cross

“Mr. Roth, have we heard the final version of what happened to your wife, Cynthia, on the day she drowned?” Marilyn Brenneman asked, the sarcasm in her voice obvious.

“You have, you have heard the version as specifically asked for,” Randy stammered.

Well, said Brenneman, did Randy remember the written statement he had given to the Redmond Police detective, Larry Conrad, on the day Cindy died? Yes, Randy said, he remembered.

“Mr. Roth, is there any place in that written statement where you ever say that Cynthia Roth, your wife, had hold of the oarlocks?”

“No, I don’t believe that the detective questioned me for, specifically as to—”

Brenneman interrupted. “You were given the opportunity to write your own statement, weren’t you?”

Yes, Randy agreed. “Did you ever use the word ‘oarlock,’ yes or no?” Brenneman asked. Randy said he hadn’t.

Did Randy mention the oarlocks to the medical examiner’s office? Randy said he couldn’t recall. Did he tell Sue Peters about the oarlock over the telephone in the first interview, on July 29?

“No,” Randy said. He tried to put the responsibility on Peters. “They were asking the question in general in relationship to her position on the side of the raft,” he said.

Well, did he tell Peters and Mullinax during the long interview two days later that Cindy had been holding on to the oarlock?

“No, I did not, but the reason for that would be—”

“You didn’t?”

“—they were general, they were [asking] general questions.”

What about during his press conference on August 9? Did he use the word “oarlock” then?

Having watched the videotape of the press conference played before the jury earlier, Randy knew he hadn’t said anything about oarlocks, and that in fact he had said then that Cindy was holding on to the raft’s rope when the incident took place.

“In fact, isn’t it true, the only thing you ever said specifically up until the time you testified in front of this jury was that your wife Cynthia was holding onto the rope on the side of the raft when the boat went by that caused it to flip?”

“No,” said Randy. “There are a couple different statements that were taken, and the general reference was either to the side of the raft or to the rope.”

“You never once mentioned the word ‘oarlock’ until you took the stand in your own defense in this trial,” Brenneman said.

Randy fumbled to explain. “At this particular time, in this questioning, this is the first opportunity that I have had to address that specifically as it was questioned,” he said. Brenneman again thought Randy’s attempt to sound authoritative was making him only seem stiff and badly rehearsed. That’s what she wanted.

Well, said Brenneman, he’d been present throughout the trial as witnesses testified, hadn’t he? And he’d watched as his own expert witness had shown in a videotape how it was possible to flip the raft by pulling on the oarlock, wasn’t that true? He’d had a chance to prepare his testimony after seeing all that, right?

“In a manner of speaking,” Randy said.

“And only after you watched [the defense expert] testify, only after you had an opportunity to watch the video presentation given by him, where the young woman was able to flip the raft by holding onto the oarlocks, only then did you mention the word ‘oarlock’ in describing what Cynthia was holding onto in that raft. Isn’t that accurate?”

“No,” said Randy. “No one has asked me specifically until this point in time.”

Done well, the art of cross-examination requires a lawyer to have an iron grip on the facts of the case, an agile ability to recall the testimony that has just been given—particularly where it differs from previous testimony—and a good “third ear” to take advantage of slips of the tongue or unhappy phrasing by the person being cross-examined.

Speed is an essential weapon of the cross-examining lawyer. Quickly following one question with another demonstrates to a jury that the cross-examiner is supremely confident of her version of the facts. It also gives no respite to the witness, no time to think of possible alternative answers, thus leading to a greater likelihood of unexpected admissions. Being pounded by a rapid drumbeat of hostile questions can rattle even the most sophisticated witness, even those telling the truth.

A second major tool of cross-examination is the abrupt change of subject. Hopping quickly from one topic to another reduces the ability of the witness to anticipate questions and increases the likelihood of unrehearsed statements.

By the rules of evidence, cross-examination is generally limited only to matters testified about on direct examination, as well as matters relating to a witness’ credibility. But that disadvantage is often more than outweighed by the cross-examiner’s right to ask questions predicated on previous statements, often called leading questions.

Randy had been on the witness stand for nearly two days answering questions from his own attorney, Cody. As a result, by that Monday afternoon Brenneman had a wealth of material to use to probe both Randy’s testimony and his truthfulness.

But even more important, Brenneman had been hearing and thinking about Randy Roth for nearly eight months. She believed she understood his personality. Mostly, she was sure she could get under his skin.

“I had a game plan,” she said later. “I wanted to keep him in front of the jury long enough for the jury to get to know him, to see how he reacted to me, and how he reacted to stress.”

Randy, Brenneman thought, was a man who did not like women. Most of all, he did not like women who had authority over him. And what was cross-examination, if not authority? Where else is someone locked in place, unable to move, to escape, literally forced to respond to every question, no matter how tiresome or excruciating or odious?

For the first time in his adult life, Randy would be under the power of a woman impervious to his implied threats, beyond his belittlement and sarcasm. It was a page out of Randy’s childhood, when he’d been disciplined by being made to stay on his knees in the kitchen, under the domination of his mother.

Moreover, like Lizabeth in the kitchen, Brenneman had the advantage of being free to move around the courtroom, whereas Randy was stuck in the witness chair; when questioning Randy, Brenneman consciously moved toward him, advancing on him, threatening his space, as if he were pinned in the corner on his knees.

But by the time Randy began to answer her question, Brenneman would have her back turned to him, moving away, already discounting his response in her own visual body language. It was calculated to drive Randy, a man who had to have control, completely nuts. And it ultimately did.

Just as Cody had Randy go over all the points of testimony raised by the state’s one hundred thirty-one witnesses, now Brenneman intended to do the same with Randy’s version of the same events.

Normally, lawyers don’t like to give witnesses the opportunity to repeat lies. But in Randy’s case, Brenneman decided the opposite tack would be far more beneficial.

“A cardinal rule of cross-examination is to prevent a witness from repeating his lies,” Brenneman said afterward.

“I decided to break it. I wanted Randy to keep repeating his transparent and unbelievable excuses for the things that had happened to his wives. He was happy to oblige, even embellishing his direct testimony with even more unbelievable details.”

In short, Brenneman intended to put most of Randy’s adult life on trial, make him defend himself, and give him every opportunity to expand his earlier testimony, so that the jury could see him for what he was.

But this would be no This Is Your Life, because Brenneman had not the slightest intention to proceed in chronological order. Indeed, she intended to deal her questions like a professional cardsharp in order to keep Randy off-balance.

Altogether, Randy was on the witness stand six days, including the two of direct testimony under Cody’s questioning. Anyone who has ever been on a witness stand knows that even one full day of testimony can be exhausting. Six is torture.

Brenneman, in fact, was worried that the jury might begin to feel sympathy for Randy under her hammering. She kept glancing at the jurors with her peripheral vision, trying to judge whether the jurors thought she was pouring it on, going too far. But never once in the six days did Brenneman pick up signals that the jury felt she was being unfair to Randy.

So Brenneman continued to use all the verbal tricks at her command: sarcasm, obvious disbelief, repetition of Randy’s own words, anything and everything to break down Randy’s wall of denial and what she believed was his deceit.

Randy battled back. Good, thought Brenneman. The more he fights with me, the more of his personality comes out for the jury to see. Where Randy tended under Cody’s questions to be calm and even, in responding to Brenneman, Randy’s defenses rose. He fenced with Brenneman over words, dodging and weaving, occasionally attacking, trying to slip her punches with verbal tricks. It was a game he could not win.

Brenneman concentrated on areas where she was sure she could demonstrate to the jury that Randy was lying. Thus, one area that became a battle was over the lease-option of the house Randy lived in when he first met Jan—after all, he had told Jan he owned the house, which was one of the main reasons Jan had married him.

“So in fact, there was no real agreement that you were renting that home with a purchase option?” Brenneman asked.

“There was no contract, as I stated earlier.”

“Merely casual conversation?”

“Yes.”

“On that basis, you led Jan Miranda to believe you owned that house?”

“I did no such thing.”

“She didn’t think you owned the home?” Brenneman’s tone implied incredulity.

“I don’t know what she thought,” Randy said.

Over the first two days, Brenneman made Randy go over and over his relationship with Jan and the events at Beacon Rock. She scored a telling point against Randy over his previous testimony about the railings on the Beacon Rock trail the first time he, Jan, Jalina and Greg had been to the rock.

“Now, you indicate that you needed to go through the railing to get onto the shortcut,” Brenneman said. “How did you get through the railing?”

“Well,” said Randy, “some of the people went over the top railing, because it’s fairly low, and some people went between the top and second railing. I believe I probably climbed over the top of it.”

“And what did Jan do?”

“I believe she more than likely would have gone between the two rails.” That was what Randy had also told Cody only two days earlier.

But later, after more questions, Brenneman suddenly veered back to the railing issue. She showed Randy a picture of the shortcut.

“You would agree with me, would you not, in looking at the picture, Mr. Roth, that there is no necessity for going under a rail or over a rail to get to the shortcut you say you and Jan were taking when she fell to her death?” Brenneman was absolutely right: the photograph showed there was no railing whatsoever.

Randy stuttered for a minute, trying to reconcile the photographic evidence with his previous testimony.

“This, this would not indicate, this doesn’t show where the main trail would be or whether, where the shortcut would have been,” he said. “This, if this were in fact the same spot, it would not be necessary to go through a railing. Here you could walk straight onto the shortcut. It’s unclear to me where the shortcut would actually be on this particular portion.”

Brenneman kept pressing the issue, and Randy said he couldn’t be sure that the photographs represented the area where he and Jan actually had been on the day of her death. But with the testimony of rescue worker Wylie, the Skamania County sheriff’s deputies, and even Randy himself earlier, Randy’s protestations sounded obstructionistic and weakly evasive. If there never had been a railing at the shortcut, that meant Randy was almost certainly making up the whole story of Jan’s death, a fact certainly not lost on the jury.

As Brenneman’s cross-examination continued, she paid particular attention to Randy’s choice of words, especially those used during his own direct testimony to Cody. She believed that Randy’s language was so extraordinary a clue to his inner nature that the jury deserved to hear it several times.

One of Randy’s most unhappy phrasings had been “badly damaged,” in connection with Jan’s fall.

“Your indication that she didn’t look as ‘badly damaged’ as someone had indicated reflects that someone had told you she wasn’t looking real good,” Brenneman suggested.

“Yes, but I don’t remember who that might have been, if I had the conversation, or if they would have been actually talking to someone else and I overheard it.”

“And you found yourself surprised that her face wasn’t more damaged?”

“Yes, considering that she had fallen off the side of the rock,” Randy said.

“And the reason that you insisted on having the opportunity to look at Jan was to make sure she was dead; is that fair?”

“That’s not fair.”

“Well, you indicated that you wanted to look at her just to make sure she was dead, beyond help, is how you put it.”

“I don’t believe that I used the terminology, dead beyond help. It was my interest in verifying the fact that she was still not alive.”

“You needed to verify that she was still not alive?”

“Yes.”

Brenneman paused to let that implication sink in.

Brenneman also scored heavily against Randy with the “Randy hates” letter. She used Randy’s own admission that he had discussed his “differences” with Cindy with Stacey Reese.

“Would you tell us about some of those differences?” Brenneman asked.

“Well, it seemed—”

“Your Honor, I’m going to object to this line of questioning,” Cody said, attempting to head off inquiry into this perilous area. “As indicated, I’m sure that everybody who has been married has had differences of one kind or another, and I don’t think that is, in and of itself, relevant to this case.”

“I think it’s quite relevant,” said Sullivan. A better wake-up call to the jury could not have been delivered by Brenneman herself. “Overruled.”

Randy tried again for the high ground and only succeeded in looking stiff once more.

“Our individual differences would have involved specifically the way she might have handled the boys or the things that she would have been involved in, activities, versus the way that I would have lived as a single male parent,” he said.

Brenneman asked Randy what other differences he had with Cindy. Randy said he had disagreed with Cindy on several mundane matters. Well, said Brenneman, wasn’t it true that Cindy had been mad at Randy about his joining the weight-lifting club? Randy admitted Cindy had been unhappy with him about that. Did he ever disable her car? Brenneman asked. No, Randy said. The car had mechanical problems, that’s all. He had fixed it.

“Did you and Cynthia have arguments about other things than the things you have talked about?”

“I don’t recall. I wouldn’t even call those arguments. They were differences of individual opinions. I don’t recall anything other than that.”

Now Brenneman, having established that Randy was claiming he and Cindy got along well, was ready to spring the trap.

“Do you recall telling Cynthia that you hated her makeup, her blush, her lipstick, her blond hair and her perfumes?” Brenneman asked.

“No. There might have been one incident where she wore a perfume that I suffered allergic reaction to and the sneezing.”

“Do you recall telling Cynthia that you hated her fingernails, her doll collection, her pink feminine things, her peach feminine things—”

“No,” Randy interrupted.

“—in every room of your house?”

“No.”

“Do you recall telling Cynthia that you hated her perfume, her pictures, her furniture, and the way she drove the cars and trucks?”

“No.”

“Do you recall telling Cynthia you hated the way that she cooked?”

“Cynthia’s cooking was one of the most outstanding aspects about her,” Randy said, trying to struggle free.

“Do you recall telling Cynthia that you hated the way she bought groceries too many times every week and spent too much of your money?”

“No.”

“Do you recall telling Cynthia that you hated the swamp that she made you move to?”

“I recall complaining about the water problem we had on the property.”

“Do you recall telling Cynthia you hated her house, her things, her money and her independent nature?”

“I don’t believe I’ve ever used the word ‘hate’ in any of our conversations,” Randy said.

“Did you tell her you didn’t like her things, her money, her house and her independent nature?”

“I didn’t know anything about her money or her financial situation. And her house was our house. I’m not sure what house you are referring to.”

“Any house.”

“I would have no reason to hate them. She had a nicer home where she lived previously than what I did, so it was very acceptable. And the house we moved into was one we both wanted.”

“Do you recall telling Cynthia that you hated the way she grinds her teeth, the way she picks up your papers all the time and the way she uses all the hot water to fill up the huge bathtub for a bath?”

“The only conversation we’ve ever had about any teeth grinding was the fact she would do it in her sleep. And I was concerned that it would cause a dental problem. That was the only conversation we ever had regarding her teeth.”

“You don’t recall saying you hated the other things?”

“I’m a sound sleeper. Teeth grinding in her sleep wouldn’t have bothered me.”

“I see. Do you recall telling Cynthia you hated her going shopping, you hated her leaving the house at all, and you hated her driving the Isuzu Trooper?”

“No. The Trooper was hers to drive.”

“How about leaving the house?”

“She was in and out of the house all day long when I was at work.”

“The question I asked you, Mr. Roth, is did you tell Cynthia that you hated her leaving the house?”

“I had no control over Cindy. I never attempted to keep her in the house. She had reactions—free access to coming in the house throughout the day.”

“Basically your testimony is, then, that you and Cynthia had some minor disagreements about various things, but overall your relationship was going well?”

“That was my impression of it.”

“Is that the impression you conveyed to Stacey Reese when you had lunch with her before Cynthia died?”