Friday, September 7, 2007

Charges: Multiple Counts, Sexual Assault of A Child; Verdict: Not Guilty

Lesson: Less Is More - The 60-second Close

Wise old judges really are sometimes both. A few years back, a wise old judge name “Wright” told me and the prosecutor, just before closings in a homicide trial, that shorter was better and that no closing was the best idea of all. He claimed that jury studies showed that closings never win trials but sometimes lose them. Neither of us took the bait. So I argued in closing for 30 minutes in between the prosecutor’s 95 minute, 2-part stem-winder. (The shorter closing was the winning closing that day, thankfully.)

This week I took the wise old judge's advice in a felony sexual assault trial involving two stepdaughters that each accused my client of years of assaults. I sensed the prosecutor might hold back arguments for rebuttal. But she nonetheless argued well for 45 minutes in her initial closing argument. The jury struggled to pay attention, as they usually do at that point in a trial.

So, after getting my testifying client's approval, I gave a 60-second closing argument. I said simply that the only way to prove you did not do this was to testify, that my client did so, and that I could add nothing to that. I told them of the jury studies' conclusions, as well. I closed with a stern, whispered caution that before they marked my client as a child molester for life, they better be damn sure they were right. And then I sat down.

The jury studies may be right. The jury acquitted on both counts despite my “concession” of closing arguments to the prosecutor.

Simple lesson? Trials are won in jury selection and openings – and sometimes even on the evidence, but not in closing arguments. The latter are mere fodder for TV and press. (Maybe, though, it helps to tell the jury why you are not saying much; and always clear this unusual approach with the client... CYA is good.)

The problem most lawyers have is they fear that being so brief or risky is also setting up a claim of ineffective assistance. That fear is palpable and usually overwhelms logic and science. In this case, I fought with myself for two full days before I convinced myself to say little in closing. It helped that jury selection had gone very well, and openings seemed to be in our favor. But I ultimately did what my instinct said to do, which seems obvious in hindsight; but leaving well enough alone is difficult. (It helped that I had laryngitis, which I noted to the jury at the beginning of my 60-second non-argument to evoke laughter from the jury after a persuasive initial closing argument for conviction. A laughing jury is not usually a hanging jury – at least, not in these parts. I started by telling the jurors that I had good news. I paused for effect. Then I said “I have laryngitis.” The laughter helped make them forget any anger they felt for my client, I suspect.)

Next case.

Helpful Information:
First degree sexual assault of a child, Wisconsin Statute Stat 948.02(1))
Class B felony
Attorney Chris Van Wagner