For many lawyers and court observers, the closing arguments are among the most important parts of a trial. It is the last time to convince the jurors to interpret the evidence the way you have, and in some cases, to atone for any mistakes that may have been made during the trial. Lawyers on both sides are not necessarily allowed to explain why they did something at the time they were doing it, so the closing arguments provide a chance to bring it all together, and hopefully make some sense.
There are a number of restrictions and rules concerning what one may or may not do during a closing argument. Lawyers are allowed, for instance, to comment on what we anticipate the judge will tell the jury that the law is. But we are also supposed to draw the line between that, and telling them ourselves what we think the law is. We’re also prohibited from expressing our personal beliefs about evidence to the jury, and particularly from commenting on the credibility of particular witnesses and the guilt or innocence of the accused. If a prosecutor falls into that error, it’s virtually guaranteed to result either in a mistrial or in a reversal on appeal. If a defense lawyer does it, he is admonished by the court—and on the few occasions that I’ve seen it, the chastisement takes place in the presence of the jury.
Lawyers disagree as to what is best to present in jury arguments. There are those who espouse going into great detail, and indeed, some cases do call for a full rehearsal of the facts. However, in my opinion, that doesn’t work in the majority of trials. Jurors sit and listen for hours at a time, days and weeks on end; the last thing they want is for somebody to go through a repetition of what they have already endured.
It is my belief that, during this stage of a trial, juries want to hear explanations. Accordingly, a lawyer needs to use this occasion to attempt to anticipate what questions a juror may have, and answer them. Traditionally it has been experience alone that could assist in that process; though we now have a procedure in Florida that allows jurors, under certain restrictions, to write down questions that can be addressed during the trial and closing arguments. I have utilized this process in the past, and while such jury questions can be unnerving, they are certainly revelatory.
As with opening statements, the prosecution goes first in the closing argument process. That is, they get to stand before the jury at the conclusion of the presentation of evidence, argue what they think they have proven and try to convince the jury to agree with their theory. In our case it took the form of an urging—if not an outright plea—by the prosecutors to kill Casey Anthony. That concept should send chills up the spine of any conscientious reader. One would hope that such a profound responsibility as that of a prosecutor would be taken on with the utmost seriousness, and without so overt a show of bloodthirstiness.
Mr. Ashton began by arguing the theory for which no substantial evidence had been presented during the trial at all. He argued to the jury that Casey Anthony had murdered her child—whom, on all other counts, we had every reason to suspect she loved and cared for—simply because she wanted the freedom to party. He went on to support this preposterous theory with the inference they had been feeding the eager news media for nearly three years: because Casey didn’t grieve in the manner that they deemed appropriate, she was conclusively a murderess.
Little did Mr. Ashton know that during the course of this very trial there had been two deaths in the families of members of the defense team—through which occurrences those members had carried on with their work every day. Neither of them had come to court with eyes bloodshot from exhaustion, or cheeks stained with tears, though they had loved their grandmother and uncle as much as anybody else. Yet the prosecutor probably wouldn’t have cared if he had known. He had his theory and was not going to be deterred by the facts.
As alluded to earlier, Mr. Ashton made some serious faux pas in his argument. Not only was he overzealous in his mythologizing, he couldn’t seem to get his theory of the murder straight. Was little Caylee poisoned to death with the chloroform they couldn’t find? Or was she suffocated with that other unsubstantiated murder weapon, the duct tape? Confronted with the lack of evidence to support either of these theories conclusively, Mr. Ashton presented both theories to the jury, saying that in all likelihood Caylee had been murdered by suffocation. He went on to state, very emotionally, that one could only hope that Caylee had been knocked out by chloroform before she was suffocated with the tape.
Now, the burden of proof in a first-degree murder case, which of course rests with the prosecution, is that the crime must be proven beyond and to the exclusion of all reasonable doubt. It is by no means a case for “in all likelihood” or “we can only hope.” Interestingly enough, in light of this contradiction and the extremely shaky nature of the evidence upon which his almost entirely prejudicial case was based, Mr. Ashton next had the audacity to deliver an impassioned argument against speculation!
Once Mr. Ashton had finished, Mr. Baez got up to argue the first part of the closing argument for the defense. He chose to go through a lot of facts, but was selective in doing so, revisiting the evidence relevant to those areas in particular in which the jury could find the most reasonable doubt.
During this process, Mr. Ashton could not control himself, and smirked and grimaced and laughed through Mr. Baez’s argument. Despite the prosecutor’s hundreds of sustained objections, Mr. Baez wasn’t afraid of him and called him out on his behavior, pointing to him in front of the jury and referring to him as “this laughing guy here.” From his reaction, it was a wonder Mr. Ashton didn’t have a coronary occlusion. He physically jumped from his seat and yelled his objection. The judge, predictably, was incensed—but didn’t know what had actually happened, as Ashton was where he couldn’t see him.
We had yet another bench conference, in which I told the judge what had happened, and Ashton tried to deny it. The judge suggested that we review the courtroom videotape, and despite the fact that neither Mr. Ashton nor Mr. Baez wanted to do so, I insisted on it. We had put up with far too much obstruction up to this point to let the prosecutor off so easily. The judge and I went alone into the media room to review the videotape, where, sure enough, we saw Mr. Ashton—the State prosecutor in a capital case—smirking and degrading the presentation of the defense, and distracting the jury from it, with a big grin on his face.
Judge Perry was justifiably angry—this time at the right person—and I told him my opinion that, in light of the case’s history and the repeated efforts by Mr. Ashton to hold Mr. Baez in contempt, fine him and otherwise harass him, it was time for the worm to turn. Fortunately for Mr. Ashton, however, Mr. Baez let him off the hook, telling the court that he didn’t want to belabor the issue and delay getting the trial over with.
After Mr. Baez’s portion of the presentation was through, it was my turn. My goal was now to bring the jury to a clear and comprehensive understanding of what is meant by reasonable doubt, and in that fashion point out the problems with the State’s case that Mr. Baez had set up in his argument.
By coincidence, the day of these arguments was July the 4th. What a laborious process it had been! We had gone through the presentation of evidence and prosecutorial argument on Memorial Day and were now making our final arguments to the jury on the 4th of July. Yet this was a day, as I reminded the jury, to celebrate our freedom from the oppressions of government, and to honor and respect the constitutional processes and rights that we are so fortunate to have.
I then presented an argument on the subject of reasonable doubt, reminding the jury of the burden of proof that lay upon the prosecution, and following it up with a list of areas in this particular prosecutorial argument for which there was no evidence. It had been a lengthy list, and I reduced it to a reasonably shorthand version; but it was enough to remind the jury of everything we had debated over the last couple of months.
That list simply ran:
• No fingerprints on the tape or bags
• No fingerprints on the gas cans
• No roll of tape found at the Anthony home to match the tape found with Caylee’s body
• No toxicology
• No DNA of the defendant
• No evidence of decomposition at the recovery scene
• No bugs from the trunk—only trash
• No chloroform, or ingredients to make it, in the Anthony home
• No heart-shaped sticker in the Anthony home similar to the one found in the vacant lot
• No root bands on the sixteen hairs found in the trunk; the one alleged root band being from a hair not exclusively linked to the defendant
• No connection of the defendant to the recovery scene, despite FBI examination of all of her clothes and shoes
• No incriminating statements, admissions or confessions by the defendant
• No witnesses to the alleged crime
• No motive
• No forensic evidence—i.e., no DNA or blood—from the trunk stain, or anywhere in the car
• No transfer evidence from the car seat, steering wheel cover or anywhere else
• No chemical uniqueness to chloroform as pertaining to decomposing bodies
• No history of child abuse
• No history of child neglect
As I ran down this list, there was no smirking, smiling, laughing, head shaking or other gesturing from the prosecution table. The conscientious jury was giving me their full attention.
I pointed out that the prosecution’s imaginative fantasies were not evidence, and that proof “in all likelihood” was not proof beyond a reasonable doubt. I demonstrated the gradations of different classifications of argument strength using a visual aid board (for copies of which, interestingly, I have since had literally hundreds of requests from professors, lawyers, law schools, journalists and generally interested people from all over the country). I spoke to the grave responsibility of the jury in making this momentous decision, and to their power to resist the overwhelming obstruction of justice that had marked the case from its beginning. We had dealt with the media’s ignorance, the prosecution’s poisonous fantasies, and the court’s repeated overruling of our objections and best efforts. Now the case had come to the jury for decision; now it was their turn to decide on what side of justice they stood.
A good friend, author and judge from Miami, Mr. Milton Hirsch, argued in a trial that “today is Judgment Day for the United States Constitution.” Tomorrow will be judgment day for the United States Constitution, too. Every day on which an American stands trial for his liberty before a jury; every day on which an American is arrested, or his home or property is searched; every day on which an American voice is raised in speech or song; every day on which an American vote is cast or counted; every day on which an American newspaper is printed or read; every day on which an American lawyer is asked to defend an unpopular man, or an unpopular cause, is Judgment Day for the United States Constitution. We are faced with a storm of injustice, a chaos of oppression, almost continually; yet the judgment is ours. Every one of us, however solitary, is called upon daily for our decision—to cower before the storm, or to light candles in the interest of keeping what is best in us alive.
“Let us light candles,” I said—and brought the argument around to its close.