Category: Final Arguments
“…the secret of the Great Stories is that they have no secrets. The Great Stories are the ones you have heard and want to hear again. The ones you can enter anywhere and inhabit comfortably. They don’t deceive you with thrills and trick endings. They don’t surprise you with the unforeseen. They are as familiar as the house you live in. Or the smell of your lover’s skin.
At least 311 innocent people were condemned by “commonsense.” There are probably a lot more languishing in our dungeons, but at least that many convicted inmates have been exonerated through DNA. I bet in each one of those trials the prosecutor told the jury to use their “god-given commonsense” to fill in any gaps in the evidence and convict the accused.
Few doubt that General Douglas MacArthur was a brilliant man. He graduated first in his class at West Point. He earned over 100 military decorations from the U.S. and other countries. During the First World War he won the Distinguished Service Medal, the Distinguished Service Cross twice, and Seven Silver Stars.
How does a poet fit into this series? Edgar Lee masters was not an ivory tower academic – he was a lawyer who advocated for the poor and powerless just like one of his law partners — Clarence Darrow. I came across Masters while teaching myself English literature. His legacy is the Spoon River Anthology, a series of 244 poetic monologues in the voices of the dead. He took the names off tombstones in an Illinois cemetery and combined fact, fiction and speculation to create their voices.
I watch Sports Center almost every morning while getting dressed. Boston Red Sox outfielder Shane Victorino, in an interview, said “y’know” – 72 times in three minutes. Yes I counted them. Sounded like he was afflicted with tourette’s. It was grating – fingernails on a blackboard. Imagine a jury suffering through an hour of intensely annoying verbal tics.
Henry Ward Beecher: “Not until human nature is other than what it is, will the function of the living voice — the greatest force on earth among men — cease . . . . I advocate, therefore, in its full extent, and for every reason of humanity, of patriotism, and of religion, a more thorough culture of oratory and I define oratory to be the art of influencing conduct with the truth set home by all the resources of the living man.”
“If ever there was a country where eloquence was a power, it is the United States.” 8 Ralph Waldo Emerson, The Works of Ralph Waldo Emerson 128 (1883). Nowhere is this quote more true than in an American courtroom.
Trial lawyers start working on their final argument from the first day on a case and keep working it until they get up on their feet and start talking. They continually collect ideas, details, and special facts to weave into arguments. They write out the boiler plate arguments like reasonable doubt, presumption of innocence and how to highlight the critical jury instructions. They know these set-pieces will always be part of the argument. They are not prepared in a rush the night before or off the top of their head. These lessons could have helped the President in the first Presidential debate.
I waited a while to write this post about Bill Clinton’s speech to the DNC. I wanted to wait and ruminate on it rather than praise it just because I am a liberal Democrat and loved all his political arguments. As a trial lawyer, I am more interested in the tone he used in the speech. It was classic Clinton who never met an audience he didn’t love. He was always friendly, used his southern drawl to best effect and even when attacking his opponents it never sounded harsh or nasty but rather almost apologetic for them being so incompetent.
The last phase of the final arguments I am interested in is the prosecution rebuttal. Many prosecutors don’t specifically prepare for the rebuttal and lose one of their greatest advantages. They have been given the priceless gift of primacy and recency yet many fail to take advantage. Unfortunately for Conrad Murray his prosecutor, David Walgren, is not one of these incompetents.