Sunday, May 20, 2012


Final arguments in a murder- one trial. My opponent was an experienced prosecutor. Nothing flashy--more of a professorial type--but steady-as-she-goes, covering all the bases. He wouldn't lose a case, you'd have to beat him. But fair and square all the way.

I was fully prepared for my closing. I had crafted it for maximum dramatic impact. All the important defense points were carefully arranged, like a Nelson Riddle orchestration for Frank Sinatra. I had gone over it again and again before my hotel room wall audience, tweaking and polishing until my personal standard had been satisfied. And the homework paid off. I had the jury in the palm of my hand, and my last line was accompanied by me standing behind my client's chair with my hands clutching his shoulders. A pause in that position, attended by deafening silence in the courtroom, finally punctuated by a solemn and sincere "Thank you." Five seconds passed (I had been on my feet for ninety minutes), and then the judge called a brief recess. The jury and the SRO spectators filed out of the courtroom with nary a word being uttered. My adrenalin was at the max. I wasn't emotionally spent, but rather high, with the uplift that only a grand-slam closing argument can provide.

The District Attorney used a blackboard and a pointer to make his case. All very tutorial and mechanical. Almost boring when compared to my presentation. I felt very confident.

And then, something, innocuous at the time, happened. The judge glanced at the clock. which read 3:30pm, and recessed until the following morning. That evening proved to be quite restless and foreboding. Something began to gnaw at me. My euphoria at having put my counterpart away in closing argument slowly faded. The jury, by virtue of the mid-afternoon recess, had been given time to think analytically. The endurance of the spell I had woven with my dynamic presentation was being severely tested. The methodical approach of the D.A. might be gaining strength. If jury deliberations had begun immediately after final arguments, there wouldn't have been enough time for this to happen. There was nothing I could do about it, but my apprehension steadily grew.

The next day, after seven hours of deliberation, the jury found my client guilty. My magic had worn off during the overnight hiatus. That experience is forefront in my mind as I apply it to the John Edwards trial.

Abbe Lowell was brilliant in his summation. The jury must have been mightily impressed by his sincere passion and eloquence. I'm sure, if he had his druthers, he would have had the jury continue their deliberation straight through the weekend, without a two day interruption. That way, the momentum of his eloquence would have had the maximum chance of persevering and carrying the day. This is not to say that this may still prove to be the case, but from a defense point of view, it was desirable to have no break in the chain of events. Less chance of Lowell magic dissipation.

I may be making too much of this circumstance. I hope I am. It's just that attorney Lowell nailed it so perfectly when describing his client as a sinner but not a felon. I wish him luck, my intuition notwithstanding.

You can take a lawyer out of the practice of criminal defense law, but you can't take criminal defense law out of the lawyer.

It's the nature of the work.

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