Saturday, April 2, 2011

Stealin'

One of the truisms about being a trial lawyer is that we all steal.

That is, we all steal from each other when it comes to good ideas and arguments to use in front of juries or judges.  Prosecutors steal from other prosecutors.  The closing phrase of "Find him, guilty, folks.  You won't be telling him anything he doesn't already knows" has been used in many a trial.  Vic Wisner claims to have coined that one, but I think he was just looking for royalty payments.

And defense attorneys steal from other defense attorneys, copying different analogies that underline what Reasonable Doubt is.

It is a regular occurrence to find that if an attorney is passing through a court when closing arguments are about to commence, that attorney will stick around to watch them.  Sometimes they watch to observe the style of the opposing attorney they might be facing soon in trial.  Sometimes they watch for sheer entertainment value.  Sometimes they stay to lend moral support on a tough case.  But every time they do stay, there is the opportunity to pick up ideas to use in trial down the road.

As a litigator, I've never been a big fan of the grandiose, carefully polished closing argument.  I think that closings that sound more akin to the Mark Antony eulogy of Caesar and fire-brand Baptist sermons often prove to be the Sound and the Fury signifying nothing.  A closing argument is where each side has the final chance to reach the jurors, and it shouldn't be overshadowed by an attempt to get yourself into a Great Quotes of the 21st Century book.

The reason I'm bringing this up is that I read a recap of the (1st) closing arguments done on the Jerry Eversole case in Federal Court last week.  Rusty Hardin, who is regarded by many as being one of the best (if not the best) defense attorneys in Houston, did something that I had never seen, heard of, or thought of in his closing.  It was brilliant in its simplicity, and I am so stealing it the next time I do a closing argument.

The defense had not put on a case after the prosecution had rested, instead electing to rest immediately behind them.   The Chronicle reported a portion of Rusty's closing as follows:
"He [Rusty] showed a chart of 18 people who were interviewed by federal agents but not called by prosecutors.  Hardin said the witnesses, including three other commissioners and a former county judge, would have hurt -- not helped -- prosecutors."
Think, for a second, about what that mode of argument does.  The Defense still can rest behind the Presumption of Innocence and point out a completely proper reasonable inference from the evidence that a large amount of witnesses to the alleged offense had nothing implicating Eversole in wrongdoing.  To me, that's powerful stuff.

The reality is that in most trials, the prosecution rarely calls every single available witness.  Some may be duplicative in their testimony.  Others may be too easily impeachable.

But that's not the Defense's duty to explain to the jury, because the Defendant has the Presumption of Innocence.

(NOTE:  I tend to think that if Rusty had put on a defense case and called witnesses that the prosecution would have potentially been able to respond accordingly with a "the defense called witnesses too, and you didn't see them calling these people either."  What do y'all think about that hypothetical?)

Keep in mind, that this isn't the first time that Rusty has done something brilliantly simple and insanely effective in a high-profile criminal case.  In the 2004 trial of Calvin Murphy, Rusty called Murphy to the stand near the end of a month-long trial that was filled with numerous and lengthy allegations of Murphy sexually abusing his children.  Most people anticipated that Rusty would do a lengthy direct examination of his client.

Instead, Rusty spent a total of three minutes on direct.  He read the charges and then simply asked Murphy if he did what he was accused of.  Murphy issued an emphatic denial.

And it was extremely effective.

Much more so than tediously going through every last bit of the preceding testimony and then putting Murphy in the position of having to attack his daughters' credibility on the stand.

There have been other great examples that I either have stolen from or plan to in the near future. The list is long and distinguished, but I would include some of the following:

-Michael Turner's explanation of the standards of proof in criminal cases (during voir dire).
"Even if you are Clearly Convinced that my client is guilty, you can't convict him . . ."
-Ted Wilson's argument for the maximum sentence on a Possession of Child Pornography case.
"I know you all know that if you sentence Tom Zaratti to 10 years and $10,000 won't stop child pornography from happening . . . but you will have done everything you can."
And bringing this post full circle, yet another (self-claimed) argument from Vic Wisner:
"Folks, if you're going to find him not guilty, just remember to make room on the elevator when you leave, because he'll be riding down with you." 
There are plenty of others, and I invite you to share them with us here.

In the meantime, to all of you trial lawyers out there, remember to keep on stealin'.

17 comments:

Anonymous said...

A few -

1) Regarding the best use of the mostly deficient electronic equipment that was and is in each courtroom: The #2 prosecutor stood up in closing and turned on the overhead projector (actually was working that day). He turned to the jury and pointed to the defendant in this simple D.W.I. trial and declared: " Ladies and Gentlemen of the jury, even after you hearing all the evidence in this case...that man sitting right there is still presumed innocent! But I'm going to show you - based on the evidence why after you carefully deliberate this will no longer be the case". In one hand the prosecutor had about 20 3 X 5 cards and as he made this first remark he laid down one card on the overhead that boldly read:
"INNOCENT". Without belaboring the point, he then proceeded to methodically lay card after card around the edges of the first card - each of which had some tid-bit of evidence presented at trial by the State - all the while asking the jury to recall each piece of testimony or evidence presented by the prosecution. The last card completely covered up the first...it said GUILTY.

2) For either side and for whatever the purpose simply preface a line of assertions: " Don't you know if_______ then they would have __________.

3) From the bench I shall ALWAYS see the "silver bullet for the Defense as arguing hard on reasonable doubt;

4) For the State: " Members of the jury, at the close of your deliberations I ask you to recall all the evidence and have your foreperson sign right here at the bottom of the verdict page: GUILTY. Why? Because based on all the evidence, the bottom line in this case is that the defendant IS guilty.

5) For the defense argue the law, law, law - remind the jury of their sacred oath. Unless the evidence says otherwise choose you battle accusing the officers of lying. Especially in a high volume type case like DWI's - if you can get the jury to thinking " Hey, maybe this officer is so busy bagging and tagging" - he might just be getting THIS defendant mixed up with all the other cases." Remember how many times the officer said: " What I usually do is ______ and I had to keep bringing him back to THIS case?

6) As a student of Ray Moses at S.T.C.L. - for extra credit I went to what was then called the Clerk's "Death Room" which housed all the death penalty District Clerk's files. You see the good professor was updating his book on death penalty final arguments and it was my job to transcribe the ones that looked good to inexperienced me.

As you already know, so many final arguments are CASE SPECIFIC - can't be used on any case but THAT ONE. I will close with my all time favorite. The case was The one involving the Johnny Bond's "The Cop that wouldn't quit case styled The State vs. Allen Wayne Jenecka and the killing of John and Diana Wanstrath along with their 14-month-old son Kevin.

In the trial there were several prosecutors but the one I will focus on is Eggelston. The facts showed that the defendant went into Kevin's room while he was asleep in his crib. He was wearing blue terrycloth pajamas. Jenecka shot the baby in the head with a .22 and as he left the room he turned out the light to the room with his elbow - to not leave prints. In trial the prosecutors actually introduced the light-bulb into evidence and Eggelston closed with this spine chilling argument: " I submit to you L & G of the jury that after the defendant did that horrible thing to that sleeping child, that when he walked out of that nursery room and turned off the light to THIS light-bulb - that he snuffed out a little bit of life from all of us..."

Respectfuylly,

Judge Larry Standley

Sid Crowley said...

"Folks, if you're going to find him not guilty, just remember to make room on the elevator when you leave, because he'll be riding down with you."

I heard that one in 1980, before Vic ever joined the office..lol

Arthur Kirkland said...

"YOU'RE out of order! YOU'RE out of order! THE WHOLE TRIAL IS OUT OF ORDER! THEY'RE OUT OF ORDER!"

Anonymous said...

Allegedly Mike Hinton, while a prosecutor trying an obscenity trial in which the F word was in play along with community standards, made the following closing argument, repeated in its entirety:
"Ladies and gentlemen of the jury, Fuck You. And if you don't find that offensive, then Fuck You."

Anonymous said...

Murray,I too am a fan of Ray Moses. His books are excellent. Any readers of this blog will be well served to get a copy of his source book and his book on closing arguments. I use his materials on many of my cases. They should be required reading for any one practicing criminal law.Google Ray Moses and you can find much of his work.No wonder you do such good work. Keep it up. A FRIEND

Anonymous said...

Every time I follow an attorney whose closing is overly dramatic, I tell the jury "I prefer dinner with my theater." Pisses the other attorney off royally because it calls them out on their over-acting. And every jury I have ever said it to laughs.

Judge Standley, if those are the best you've seen, you're too easily impressed.

Anonymous said...

Dear Anon: April 2, 2011 10:55 PM

Judge Standley here. I knew I took a chance going public with what I clearly state in the beginning as:
"A few". Come by Court 6 and lets meet face to face and I'll bore only YOU with war stories. My purpose here was simply to share "a few" but thanks for the "pot shot" - anonymously of course...

Judge Larry Standley

Anonymous said...

Gee anon 10:55--you must be asuper duper badass!! Congratulations!!

Anonymous said...

Notwithstanding appellate action, Kelly Siegler's closing in the Susan Wright murder trial.

Anonymous said...

So much is in the delivery, and cannot be properly understood when limited to the text alone. I was in trial against Connie Williams, who ended his closing with "is this the kind of case we send someone to the penitentiary for? I guess we're about to find out." While it doesn't look impressive in written word, the delivery was very powerful.

Then there's a case where I was told (but did not witness) that Skip Cornelius's entire closing was "no one in Harris County should be convicted of a crime with evidence this weak." Not guilty verdict. Sometimes less is more!

Vic W said...

Murray, Credit for that and many other arguments I used go to Ted Poe. The younger folks who only know him from CSPAN, and not from the courthouse, may not realize what an incredible trial lawyer he was. I've had the good fortune of watching many great lawyers over the years but have never heard a speaker as dynamic or inspiring.

Anonymous said...

Kudos to you Murray for attempting to begin a good intelligent "thread" regarding a very worthwhile topic.

As for Anon 10:55 - Thanks for killing it with a self-serving arrogant dumb-ass unnecessary postscript to your own very lame example!

Anonymous said...

Here's the one that stung me the most from a prosecutor on closing:

"That was an impressive argument from the defense, unfortunately all I have are the facts."

-Eric M.-

Anonymous said...

Rusty's argument was dangerous in the Eversole case because it opened the door to the prosecution in reply to argue the witnesses were unnecessary to prove the case and Rusty could have called them just as well if they supposedly helped the defense. The prosecutors may have been asleep at the wheel, or too inexperienced, to argue this rebuttal. By the way, it's also apparent from the foreman's comments that Rusty made a mistake in resting right behind the prosecution. If he had not so rested, he may well have had a better split or possibly (although very doubtful) an acquittal

Anonymous said...

In civil cases, we don't allow the other side to tell the jury that the other side didn't call a witness if they were equally available. If the prosecution lists them as a witness, can the defense still not call them?

Anonymous said...

Anon 12:46 makes a good point. All kinds of reasons exist for not calling witnesses, including unavailability (e.g., the Fifth Amendment). No side should be allowed too comment...

Anonymous said...

Interesting comment re: Rusty and the Calvin Murphy case. I know someone who had a different take on his tactic. Someone who he used to supervise said that when Rusty didn't ask Calvin any questions (except the first) on direct examination, she knew Rusty was keeping a distance from Calvin's story because he didn't want to be implicated in perjury. You can guess why attorneys say/do the things they do, but we don't always know the real reason behind their actions.