Fumo Trial Part 13: Closing Arguments, The Kitchen Sink Versus The Frying Pan
Closing arguments are the only time that trial lawyers get to be the pious, melodramatic, over the top shysters that television portrays them to be. It's where Clarrence Darrow stood against the death penalty for Leopold and Loeb, where Socrates admits the charges but not the crime.
It's the only point in the entire trial where all the facts make sense to the jury.
It's also where, for the first time, the law is revealed to the jurors and they are told what it is that they're supposed to do(warning: PDF), where it is explained, just once, that:
Proof beyond a reasonable doubt does not mean proof beyond all possible doubt or to a mathematical certainty. Possible doubts or doubts based on conjecture, speculation, or hunch are not reasonable doubts. A reasonable doubt is a fair doubt based on reason, logic, common sense, or experience. It is a doubt that an ordinary reasonable person has after carefully weighing all of the evidence, and is a doubt of the sort that would cause him or her to hesitate to act in matters of importance in his or her own life. It may arise from the evidence, or from the lack of evidence, or from the nature of the evidence.
I've often wondered if further explaining the burden of proof makes matters clearer or more confusing. The rules of evidence and the practical reality of storytelling require that each and every claim or defense be proven with at least some conjecture, speculation or hunches, exactly the sort of evidence deemed unreasonable.
My favorite instruction is this one, which has an analogue in civil trials of an instruction to the jury that the number of witnesses or length of testimony is not a relevant factor in assessing which side should prevail:
Although the government is required to prove the defendant guilty beyond a reasonable doubt, the government is not required to present all possible evidence related to the case or to produce all possible witnesses who might have some knowledge about the facts of the case. In addition, as I have explained, the defendant is not required to present any evidence or produce any witnesses.
In every trial I've seen, the lawyers promptly request the jury to disregard this instruction, after which they proceeded to "bang the empty chair," the trial lawyer's term for arguing the importance of one side's failure to call a particular witness or present particular evidence. That's already happened here, with Assistant U.S. Attorney Zauzmer calling out Dennis Cogan and Edwin Jacobs' failure to call Michael Rubin to the stand.
And it'll happen tomorrow when Cogan and Jacbos lay into Zauzmer for failing to call Litchko, whose destruction of emails and guilty plea formed the core of their obstruction of justice case.
The real question, to me, comes down to the choice between the kitchen sink or the frying pan. Do you throw all of the facts back at the jury again, including the kitchen sink? Or do you beat the jury over the head with the frying pan, making sure they really, really, really understand the most important parts of your argument?
It would be great if you could strike a balance between these two, but "striking a balance" in this context is about the same as telling someone to "keep their eye on the ball." It doesn't help and it's pointless anyway. Whatever you do, you are going to annoy some jurors with your repetition. You are still not going to reach some of them. And some of them will not interpret the facts and the issues the same way you do. Period.
As Zauzmer enters his third day of closing, it's clear he's gone with the kitchen sink, a logical choice given the way they prosecuted and presented their 141-count indictment and the simple fact that, by now, nothing remains in the jury's mind of most witnesses' testimony except some notes and a vague impression.
Cogan and Jacobs will likely take the opposite approach, poking a few holes in the prosecution's case (like with the chart of Citizens' Alliance Fumo tried to take apart on the standard) but generally sticking to their themes of intent and criminality.
Though I favor the frying pan approach -- IMHO, if the jury hasn't absorbed your alleged facts by now, they're not going to -- neither can be said to be better, it's just a question of which tool you use for the job.
There are, however, two main points to consider as the defense begins their closing and the jury deliberates.
First, what is the law? Zauzmer's closing was, in my opinion, thin on the jury instructions themselves. And that's understandible: confusion and complexity create doubt, which favors the defense, and there is little more confusing and complex than a federal charge of mail and wire fraud, the core of which is an element that mails or wire communications be used to commit the fraud so as to satisfy the constitutional requirement that the federal government is acting within its commerce clause powers in bringing the case. Such a requirement, glossed over by both jurors and lawyers in most cases, does nothing to simplify the case.
As such, expect Cogan and Jacobs to walk the jury through the finer details of the law, particularly the obstruction of justice charges and the vague "corruptly persuade" requirement of the witness tampering law.
Second, what was not said? "Show, don't tell." The same is just as true for closing arguments -- sometimes your best arguments should be left unspoken, so as to leave their inherent power in juror's minds as the jurors find the words to express the argument themselves in deliberations. This is a terribly risky strategy, one that requires considerable fortitude, as you don't want jurors to miss one of your arguments, but one that I think is underused by lawyers. Jurors don't really want to hear your arguments unless they're really novel -- don't be afraid to let them figure some things out on their own.
Cogan and Jacobs, bearing no burden of proof at all, have far more latitude to use this tactic, and so have used it far more than Zauzmer and Pease, just as I discussed way-back-when in my jury nullification post, the groundwork for which was laid heavily by Fumo's testimony, particularly the part about being a target of the Bush Administration.
Will those issues enter the deliberations?
