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'.