Closing Arguments

The first thing I learned about closing arguments (that I hadn’t ever picked up from TV shows) is that the prosecutor goes first with closing arguments, then the defender gets to give his closing argument. THEN if the prosecutor wants, he gets to give another final closing argument. It was explained that things are structured this way since the burden of proof lies with the prosecution.

The Mood – I have to say I was dying to hear how these closing arguments were going to go. The witness testimony had really been all over the map and it often wasn’t clear to me what points either side was trying to draw out from the witnesses. Now was the time for them to recap and summarize what we had heard and why it was important to their argument. I was on the edge of my seat.

Instructions – I can’t remember if we got our instructions from the judge before or after the closing arguments, but I think it’s relevant to discus them here. The instructions were several pages long, I’d say 6-10. We were given a hard copy and the judge read the entire thing aloud to us. He said the law required him to do both – give out hard copies and read the instructions aloud. The two main things I remember were the definitions of the types of evidence, and the exact definition of each of the charges that the defendant faced. Some details:

  • Direct vs. Circumstantial: The instructions made a distinction between direct evidence and circumstantial evidence. The analogy they used was something like this: if a witness comes into the court room and says it’s raining outside, that is direct evidence that it is raining outside. If, however, the witness comes into the courtroom and says that there are people in the halls with umbrellas and beads of water on their raincoats, that is circumstantial evidence. What came as a little bit of a surprise to me is that the instructions explicitly said that we shouldn’t automatically give any more or less weight to one type of evidence vs the other. In other words, we are allowed to find circumstantial evidence just as compelling as direct evidence. It makes sense when you think about it, but on legal shows I feel like they always dismiss circumstantial evidence as less valuable.
  • Witnesses – We can choose to believe as much or as little of any witness’ testimony as we see appropriate. If we think the witness lacked all credibility we can disregard what they say, or we can just choose to disregard parts of what they say.
  • Charges – All the charges were clearly defined in our instructions. The most serious charge was attempted murder, and I was a little surprised that premeditation was a necessary component of this charge. I’m not sure what the charge would be if there was no premeditation, but apparently it wouldn’t be attempted murder.

Prosecution Closing Argument #1 – The most noteworthy element as the closing arguments began was a change in the tone and the mood of the courtroom. The prosecutor starts by talking about how it is the jury’s job to decide the facts. Suddenly it is driven home that this is not “story time” for the twelve of us, but rather we’re here to do a serious job and the real work of our job is about to begin. Here are some of the points the prosecutor makes as he is recapping what is important:

  • He points out the Victim’s claims that about an hour after the police left the scene on the night of the incident, the Victim spoke with the defendant on the phone. The Victim claims that at this point he was convinced that the defendant was indeed in her hometown and that she was not the person who had shot at him. AFTER that phone call, the Victim then went down to the police station to pick up his Emergency Protective Order, and he did not to tell anyone at the police station that the defendant was not the person who shot at him.
  • We are then played the full audio of the interview between the Inspector and the Neighbor (we had heard an excerpt before, but he saved the full thing for the grand finale). During this interview, we again hear the Neighbor say he is 100% sure that the person in the photo lineup (the defendant) was the shooter. He is not asked for a percentage of certainty, he volunteers it.
  • The prosecutor then says if the defendant was the shooter, then clearly some people have changed their story. It’s easy to understand why they might…

At this point, my neighbor, Juror 11, starts coughing which turns into a coughing fit and the judge has to ask the prosecutor to pause so #11 can take a break. We interrupt the drama so she can get some water and take a breather. I think the pressure and responsibility of deciding the defendant’s fate was weighing heavily on #11 and this was primarily a nervous reaction – she was shaking visibly during the break. In any case she recomposed herself and we took our seats and started back in.

  • The prosecutor said it’s easy to understand why they might change their story. The victim and the defendant have a child together, and regardless of the current status of their relationship, with time it probably seems like the more humane thing to try to keep your child’s mother out of prison. The Neighbor is a good friend of the Victim and would likely therefore be willing to follow suit.
  • He reminds us that there was direct evidence from 3 perspectives that the defendant was the shooter (the initial claims of the victim, the neighbor and the deputy).
  • He is apologetic about losing the bullet from the evidence. He admits that it looks bad, but plays down the importance of the bullet to the case.
  • He reviews each of the charges, specifically pointing out that she must have driven around 90 minutes from her hometown with a gun in the car, and those actions constitute premeditation.

All the while, the prosecutor was using his best public speaking skills. He was trying to be charming, making good eye contact with each juror. He hardly (if ever) looked at his notes during the closing argument. I’m not sure how long it lasted, but I would guess it was over an hour. It was a very impressive performance indeed and he made a compelling case. I knew it was too early to decide on a verdict, but he was very convincing.

Defense Closing Argument – The defense attorney takes a soft tone as he begins his closing argument. He quickly shows where the focus of his argument will be – the alibi. He also brings a serious tone to the room by stating that the jury has a “very very very very very very important task” (that’s right – I counted at least 6 verys). Here were some of his major points:

  • Alibi means she couldn’t have been at the scene, and therefore couldn’t have committed the crime. There was no gun found, plus she’s got an alibi. There is no bullet, plus she’s got an alibi. This kind of concise focus is what I felt the defender was lacking up until now in the trial, and I thought it was smart to drive it home.
  • He claims that the Staffing Agency Lady was the only disinterested witness in the case. She didn’t know any of the other people involved in the case and couldn’t possibly have any reason to be anything but truthful.
  • Given the time stamps from the defendant’s work that day, the defense attorney laughs at the possibility of the defendant traveling all the way to San Francisco in only 26 minutes.

(at this point, the focus and coherence of his arguments starts to diminish a bit, but he’s not going to be finished for a while)

  • He rambles a bit about how you could see fear in the eyes of the victim when he was on the stand. Trying to imply that he was afraid of the deputies who worked in the court house.
  • He claims that there’s no way for the defendant to know where the victim would have been if she wanted to shoot him (trying to disprove the idea of premeditation). This is super-weak in my mind – he was in front of his own house.
  • He claims that the CSI guy failed to show up when called back to the stand because he didn’t want to help the defense’s case.
  • He claims that since the deputy had pulled his gun at the scene, he should have filed a report. The deputy didn’t change his story because he didn’t want to lose his job (if this doesn’t really make sense to you, join the club).
  • He drops a line like “oh the lies we weave when we try to deceive” he tried it again later and got closer to the quote he was trying to use “Oh what a tangled web we weave When first we practice to deceive.” The problem is that he didn’t set up the quote either time with what he was referring to. Who was weaving lies and deception and why? It just sounded like he was dying to have a Johnny Cochran-esque quote somewhere in his closing argument.
  • He claims that the bullet and bullet hole strangely appeared in the door of the house, when the police on the scene didn’t find any bullet holes in the house. He offers no alternate explanation of how and why this might have happened.
  • He reminds us that the defense team wasn’t offered the ability to examine the car for exculpatory evidence before the car was released.
  • He then claims that because evidence (the bullet) came up missing, “someone had something to hide.”
  • At one point he looks at the jury and in a bid for sympathy claims “look at the extent they’ll go to get a conviction… it could be any of you in that (the defendant’s) chair.” To this the prosecutor claims “Objection: improper” and it is sustained. We hadn’t heard that objection before.
  • He tells us not to be mislead by the prosecutor.
  • He says that if the evidence points to two possible explanations and one of them is not guilty, we must choose not guilty.

(we break for lunch at this point, but again the defense attorney isn’t done yet. After lunch we pick back up).

  • After the break he reminds us that there is no gun and no bullet. His tone and mannerisms are melodramatic.
  • He claims that the case is over-charged and that the prosecution is just hoping something will stick.
  • At one point he claims that since the two witnesses said they heard but didn’t see the gun being fired, that maybe it was just a firecracker.
  • He somehow tries to imply that a charge of negligent discharge of a firearm is mutually exclusive with premeditation. As if it is impossible to premeditate negligence. I didn’t really follow this one.
  • He informs us that “reasonable doubt” is equivalent to “things that make you go ‘hmmm'” and that there are plenty of those in this case.
  • He questions why the deputy would have needed to hire an attorney.
  • On many occasions he says “I’m getting there, I promise I’m getting there” basically acknowledging that his closing argument might seem needlessly long.
  • He spent a while thanking and complimenting the jury for our time and attention. Both sides used tactics like this to try to flatter the jury and win favor.
  • He then claims “documentation beats conversation” – presumably referring to the documentation of the time stamp records for the alibi. If we buy this rhyming premise, though, it also suggests that the early documented statements of the witnesses should be given more weight than their verbal testimony 2 years later.
  • In closing he emphasizes the weight of our decision and implies the impact it will have on the rest of the defendant’s life.

In my opinion the defense attorney started strong then wandered all over the place, and then ended fairly strong. He also had visual aids which were posterboard-sized enlargements of some of our juror instructions. He went back over them (a bit condescendingly) to try to explain how these bits meant we must find the defendant not guilty.

Prosecutor’s Closing #2 – He starts by saying “this is it” which I think served the dual purpose of saying “this is the final word” and “you won’t have to listen to us talk much more.” I didn’t take many notes on this portion of the closing. He went point by point through the defense attorney’s closing and tried to explain why they were wrong, invalid, or inaccurate. Not much new came to the table here, but his professionalism and polish we still in effect.

And just like that it was finished. Now the ball was going to be in our court. The judge thanked and excused the three alternates who had sat through the entire case. This was the end of the road for them. They wouldn’t get to deliberate, and unless they’ve stumbled on this blog, they may never find out what happened in the case. Sucks to be them.

Next Post: Into the jury room for deliberations, and then the verdict.

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