HE FINAL ARGUMENT: THE HAPPY ENDING. So the day of the final argument is here. Now it’s time to close the deal with the jury. It’s time for the salesman to push the order pad over for his customer’s signature. The final pitch is about to be made to the committee. Our story has been told. But the story’s ending will be written by others, by the power persons.
This is our last chance. If we haven’t made the sale to the jury, the customer, or the council by this time, if the boss hasn’t been convinced by our presentation, is it too late? If our story in the opening wasn’t compelling, if the jury, customer, or the council weren’t made to care, if our opening statement was proven false in substantial ways, if we held back the truth and now, after all of the evidence is in, the jury has discovered that we have betrayed them, we can do little to save our case.
If on the other hand we have been genuinely who we are, if we have been connected to our case, cared about it, cared about our clients and ourselves, if we have laid it all down every day, day after day in the courtroom, and our caring has become contagious, so that the jury cares as well, we are ready, indeed. We have earned the right to make our closing argument. But haven’t we already won the case?
I have said that the power persons will write the ending to our story. Our story can end as a tragedy. Or it can end in joy, in fulfillment, in justice. But how the story ends will depend on how we have told it. The only cases that can be won in the final argument are those that have not been previously lost. On the other hand a good case can be lost in those fatal, final moments.
What is the final argument? The morning news of the world’s turmoil fades into insignificance, compared to our concern for our client who sits next to us. We can hear him breathing. We see his face, drawn and pale. He has visited hell. His eyes are blank. He doesn’t speak, the words stuck somewhere in the unyielding pain of fear. We reach over and touch his hand. His life is in our hands. The final argument, our last chance at justice, is on us. The judge nods in our direction, indicating it is our turn to speak to the jury. Will they reject us, turn their heads from us, shut their hearts against us? Our minds are blank, white. No thoughts can penetrate the wall of fear that surrounds us. We walk toward the jury. Our feet feel heavy. We know the jurors’ eyes are peering, the jurors waiting, waiting. Yet we cannot see them. They are blurred objects sitting in chairs in front of us. They stare. We try to smile, but the smile will not come. If only we could run. But it would be more painful, more frightening to run than to stand and fight.
The final argument is a fight. It’s more. It’s the climax of the war in which we’ve been engaged. We have asked the jury to trust us. But we must also trust ourselves. We stare down at the floor, at our feet. We turn inward for our power. Is it there? Has it forsaken us? Will the words come? We feel a sense of helplessness. We try to locate the fear. Where is it? Yes, there it is—around the ribs, under the ribs, its center where the ribs converge. It has taken but a moment, this centering, this becoming the self. At the moment we are nothing but a bundle of fear tied up neatly, our guts around it. We take a deep breath and look up at the jury. Then we hear our own voice:
“Ladies and gentlemen of the jury.” There is a long pause as we look at each juror in their eyes. Each of them, juror by juror, and thereby acknowledge them, confirm for them that they are individuals who count. Our eyes say it as they linger on theirs, linger a millisecond longer, long enough that our eyes say we see you, you have trusted us and we trust you also. No one on the jury has been by-passed. No one forgotten.
Then we hear the first words of our argument slipping out. The words are the truth.
I think about what I have just said. It is the truth. Then I say my thoughts. “It is the truth. If it were otherwise it would mean I don’t care.
“Why am I afraid?” Why?”This is the most important time of the trial. Your decision will be the story’s ending. And I pray for a happy ending. I wonder if I have done my job well enough. It is too late to turn back. I’ve made mistakes that I wish I could correct. If I had it to do over again, I would be more kind to Mr. Henderson (the opposing counsel), who I know is only doing his job. I would have listened more closely to his honor who was only attempting to see that the parties have a fair trial. If I had it to do over again I would have done a better job in presenting our case. There were many questions I failed to ask. And I am afraid that I have not done a good enough job. When I think of it I feel panic rising up. Yet, that is in the past, and we can’t go back.
“On the other hand, I am eager to talk to you, for this special time with you. I have been waiting for over two years for someone to hear this case. Mr. Henderson would not hear me. He only filed motions to keep me from getting here. His clients would not listen to me. They turned a deaf ear to George (our client). No one has listened, except, thank God, you have listened. George and I have waited these long years to be heard, and here we finally are, and I am eager to make these last statements to you, because you are the only persons in the world who will hear us and who can finally give us justice.”
Suddenly, I have the sense that the door to my final argument has been opened, and out of it, as if by magic, my argument begins to unfold. It begins to present itself. It will be a symphony, again a presentation essentially in three movements, the beginning, the middle, and the end. Like the music of the symphony itself, it will have harmony, rhythm, and texture. It will rise to a crescendo and fall to a whisper. It will not be contrived. It will be the product of unleashed, genuine feelings. It will not be feigned. No room exists for artifice. Rhetoric is out, there is no room for it. The heart cannot get itself around pretense. It is too taken up with the real.
Every space in the heart where the argument is stored has been marinated with urgent feelings. We stand on these two solid feet and decry the wrongs that have been forced upon our client. What is the final argument? It is the time when, with a sense of ethical anger, with a justified righteous indignation, we ask the jury for justice.
The guide through the forest. I have spoken of the guide—the concept applies to all salespersons, to trial lawyers and laypersons alike. We are all salespersons and, as such, we are also guides. I compare our role to that of Kit Carson or Daniel Boone—someone who knows the territory, and whom the jury trusts. That they trust you! What a responsibility! That they will follow you! What an honor! How humbling must that be! There was another guide they could have followed. There’s somebody over there who is called the prosecutor in a criminal case, and the defense attorney in a civil case. Each wants to be the guide. But we are the guide they have chosen. They’ve chosen us not because we are big or beautiful or strong or articulate. They don’t choose guides based upon the sound of their voices. They choose a guide they trust.
The jury’s guide comes in every size and kind. If we can dig deep into the mother lode of who we are, then deeper still, if we can become even more real, if we can shed all of the masks, if we can always be painfully honest we will become the guide the jury follows.
Preparing the final argument. The final argument, as with every element of the trial, will be fully prepared. As always, we are filling our computer brain with the materials and their organization. The argument has become a part of us. Indeed, we are the argument.
We began to understand the theory of our case as we prepared our opening statement. We developed a theme. We have lived the case. We have wrestled with the demons that visit us as we sleep, and have made our argument a hundred times.
I begin to prepare the final argument the day I get the case. Many a time I’ve found myself sitting up in bed at night before I turn off the lights. I am making notes of ideas, of phrases that come to me. I write out whole paragraphs I think will someday be said to the jury. I keep a file by the bed that I have labeled, “Final Argument.” Sometimes I am visited by a powerful metaphor, or a compelling phrase will come to mind that awakens me—usually in that faint unconscious zone between sleep and waking, in the early morning—and I will write the epiphany down before it escapes.
Recently I was asked to consider the defense of a young man who was charged with the murder of his mother and of a child who was his niece. Days before the murder this young man had displayed irrefutable evidence of psychosis, was delusional, and obviously medically insane. His mother had him hospitalized, and he was examined for a few days. The doctors and other attendants recorded his mental aberrations that clearly showed he was suffering from a severe psychosis. But the hospital personnel released him (he had no insurance), and within hours he returned to his home and bludgeoned his mother and his niece to death. He was committed to a state hospital because he was unable to aid in his own defense. He was there for many months, and finally, on medication, returned to jail to await trial. The state had asked for his life.
As I heard the facts of this case I immediately began creating the final argument. I had a paper napkin in front of me and began jotting notes: Here the villain will be the state itself. The question is, should the state be permitted to cover its own wrongdoing, its criminal release of this man, by now killing him? Should the state be permitted to kill to cover its own mistakes? How can the state seek death, when the state itself caused it?
Under any theory of justice the state should be charged. But because the state cannot be dragged into the criminal court and charged with murder, should it be allowed to kill the victim, the young man who, insane, was knowingly turned loose on the people and converted into a murderer? The state is the villain. The young man is the victim. The heroes in this case will be the jurors who will surely see the injustice of the state’s demand for the life of this man. Surely the jury will see that he should be treated for his illness and confined for life in a state hospital. But from the state’s perspective, so long as he remains alive he is a living reminder, year after year, of the state’s failure to protect its citizens.
The point I hope to make is that when I first hear of a case the facts immediately begin to form the final argument—what is the justice in the case? Who is the villain? The hero? How can the facts be argued so as to reach those psychic places that lie tender and waiting in all of us, that, when touched, respond in our own sense of justice?
I make the final argument in the shower in the morning. While I drive across the land on business I will find myself addressing an imagined jury. During the trial the final argument file is with me at council table. I will slip in notes as the inspiration comes while I listen to a witness, a statement made by opposing counsel, or a comment by the judge.
The organization of the final argument is made many weeks before the trial. It will be edited and altered and added to, to be sure. But its basic form will have developed as a part of the overall preparation of the case. When I walk into the courtroom, on the first day of trial, I could make my final argument then and there. Between the beginning of the trial and the moment the judge nods to me to begin my final argument, all of the ideas and thoughts that will end up in my argument will have been gathered in my final argument file.
In the same way that I write out my opening, I also write every word of my closing. The argument has become fully embedded in me. Although I will take the notes to the podium, I will rarely refer to them. I have not memorized the argument. Instead, the argument has taken on a life of its own. It will direct me once I begin to speak. I will find myself giving arguments with words and supporting metaphors that I had never thought of—not until the very moment they are delivered to the jury. The argument, if it is unleashed, if it is trusted, will create itself. But it has been built and nourished over many months. It has become like a living creature. Preparation gave it life. Once it has been formed it moves on its own, creates on its own, and finally comes to its own climax and asks for justice with an indomitable power.
Approaching the final argument. The final argument is not a rehashing of evidence. It is not a summary, witness by witness, recounting what each witness has said. True, we will talk about the testimony of some witnesses, both theirs and ours, but what a witness may have said or what an exhibit may have proved are but threads woven into the final argument.
The argument is an argument, the reasoning that supports justice, the creation of the whole aura of Tightness that shines down on our case. But there can be no demand for justice until we ourselves feel the ethical anger, the pain, the loss, the righteous indignation.
If we do not know how it is to be Bill Day, a crippled man, a once healthy, happy worker who is now confined to a wheelchair, who cannot feed himself or go to the bathroom or even brush his teeth, we cannot make a final argument. If we do not know what it is to be June Bailey, the mother of a tiny girl, little Sharon, who was burned severely over most of her tender body as a result of the explosion of a pipeline and then died of her injuries, we can never make a final argument. If we have never been to the prison in which the state wishes to cage our client, never seen how it is to lie down to sleep in a six-foot concrete cell where our head nearly touches the toilet stool, we can never make a final argument. The approach to the final argument is to become the victim, to be the accused, to understand the human issues that demand justice.
We remember: Justice is a feeling. It is born of a need for retribution that comes bursting out of the deepest recesses of the human condition, pain that has been fueled by loss, or fear, or depravation, and that is responded to within the limits of our meager ability to provide it. No amount of money damages can bring back the health of Bill Day. A steamship full of money can never stand for the loss of little Sharon. We can never restore the dignity, the lost peace of mind, and the permanently damaged psyche that those wrongfully charged with crimes experience. We who are charged with the impossible task of obtaining justice do the best we can with limited tools—a money judgment for those who have been injured, a march to freedom out the courtroom door for those who have been wrongfully accused. But this is not complete justice. Complete justice could be realized only if we had the power to take our clients back in time before the injury occurred, if we could erase the mutilation, the psychic damage, and put death aside.
Thoughts behind our arguments for justice. As we know, justice is a myth. It cannot be defined. It most often cannot be delivered. What is justice for one can be injustice for another. Justice is the gift of the most compassionate and wise. Yet it always falls short. The victim’s family, whose member has been murdered, cannot experience justice when the guilty is executed. The involuntary eternal sleep the murderer is provided when he experiences the executioner’s needle cannot assuage the grief of those who have lost their loved ones to the murderer. The state’s murdering the murderer in the false name of justice will likely only intensify their injury.
How do those who have lost their life’s savings at the hands of a corporate thief experience justice when the prosecutors make their plea bargains with the thief—all of which will be of little comfort to the penniless in their old age? The state cannot provide justice to victims.
Most often those who commit crimes are the product of the state’s failure, the sad offspring of poverty and prejudice. How does the state dare attempt to deliver justice for the crimes of a person who, from the moment he was born, was himself unjustly punished? As a child he was as innocent as our own. Yet his very birth was a punishment. His life has been a punishment, because the child was deprived of the simplest human rights—the right to be respected, to be loved, to be protected, the right even to experience minimum shelter and nourishment.
I think of two bassinets side by side in the hospital nursery. Two babies have been born on the same day. One goes home to a family such as ours, one in which he will receive all the love and attention and every advantage we can bestow. He is sent to the best schools and plays all the sports, the doting father at Little League, and all the rest. He engages in all the activities we believe precious children should experience to become healthy, useful citizens.
The other child goes home to a three-story walk-up filled with filth, a half-dozen other dirty children, and a drugged-out mother. He is neglected and often goes hungry, is left alone, and is injured and rejected. He soon learns the worthlessness of human life, and his only visions of success are the drug dealers on the corner. He was born as innocent as our own children. Our children are rewarded in their innocence with the best we could provide. He was punished in his with the worst that could be laid on him. Man commits no worse crime than punishing the innocent.
Let me have my arguments: How dare the state punish those who are the products of the state’s own neglect, its own failures? The state can build more prisons, but it cannot provide decent schools and nurturing, protective environments for its innocent children. Most of the criminals who line the walls of our prisons are the product of a failed system, a system that has cared more about war and profit and the domination of the world than about its innocent babes. But it is the same state that points its long, white, accusatory finger at this once-innocent child, now grown up as the criminal defendant, and demands that he be further punished for his crimes, when the original crime was the state’s. It is difficult to understand the concept of justice when it is injustice that causes too many crimes in the first place, the victims of which now petition the same state to deliver them justice.
But at last we understand. The state is not actually interested in preventing crime, otherwise the state, being fully capable, would take such steps as are necessary to reduce crime by fighting the virulent diseases that cause it—such as poverty and lack of opportunity. We know that the state cannot deliver justice, no matter how many of its miscreant citizens it executes or imprisons. The state punishes the crimes of its people in order to retain an orderly society. An orderly society is necessary for those in power to retain power. If crime is rampant, if the streets are not safe, if those who are the victims of crime personally undertake to avenge the crime, the resulting chaos would threaten those in power to hold on to their power. The United States houses more of its citizens in prison than any other nation in the world. We have more African-American men in prison than in our universities. Can we do better?
I am not in favor of anarchy, nor do I believe that we ought not have a system governed by a rule of law. I believe in the elusive goal of justice and hope for its rendition, as inadequate as it is. But the notion of justice is complex. It demands that we consider it beyond the simplistic idea that Joe shot Harold, and therefore Joe should be locked into the gas chamber and the nozzle turned on. Those who suffer from a disease are not taken out and shot—not in this society. But in a rich society such as ours, much of our crime is a disease, the base cause of which is the simple need of its citizens—nourishment, shelter, education, and an equality of respect and justice.
Seven steps for winning the final argument. I have never been one to rigorously follow rules. I think, instead, that we have a duty to break rules whenever possible without injury to others, because rules most often become a substitute for creativity. Rules are like the paint-by-numbers paintings that were so popular years ago. If people can be taught to follow rules, they need not explore their own unique and perfect potential.
But the expectation of a how-to book is to tell folks how to do it—often step by step. So I wondered as I began to write this chapter, how do I organize the final argument? I proceed, usually in an unconscious way born of many years of experience. Now I’ve tried to bring those steps to the surface of my own consciousness, to consider them step by step, with the hope that they will help you with an approach of your own on how to put together your final argument.
Step 1: Identify the hero and the villain. As we have seen, in every novel and movie, indeed, in every trial the story centers around the conflict between the villain and the hero. In the courtroom we need to identify who occupies these roles. Our client, yes, we, are the good guys and our opponents the scoundrels. Successful lawyers are usually subliminally aware of this dynamic, and both sides instinctively vie for the position of hero. Whoever emerges as the hero will likely be the victor. We do not side with villains. In our final argument, then, we want to cast ourselves in the role of the hero, the humble hero to be sure, the kindly hero who smiles through his tears, who has been courageous, steadfast, and true, and at the same time to cast the other side as the uncaring, greedy, insensitive villain who exercises his power over the weak and the helpless for profit. In the criminal case we are the wrongfully accused, or the grossly misunderstood. We have become a victim ourselves, and the prosecution is callous, cruel, and vindictive.
The jurors may be the heroes. In every case we empower the jurors as heroes and cast them in the role of rescuing champions who refuse to deliver the helpless defendant to the state to imprison or to kill, or who deliver a money-verdict justice to the injured plaintiff against the will of the wrongdoer.
Revisiting the voir dire and opening statement. By now we begin to realize how important the first two segments of the trial are—the voir dire and the opening statement. Justice to a poor family who has been evicted from their home by the bank may be quite different than justice to the banker whose loan to the poor family remains delinquent. As we choose jurors in the voir dire, and later tell our story in the opening, it becomes apparent how critical the selection of jurors can be. We search for persons who will identify their heroes according to the same values we cherish and for persons who define justice as do we. To the banker, justice is the timely payment of the loan he made in good faith. To the poor family, justice is some magical legal reprieve from being cast into homelessness. To jurors sympathetic with the tenets of sound business, justice is the enforcement of a promise, the consequences of which, although sad, were the risks accepted by the borrower at the time of the loan. To jurors who have lain awake at night worrying how they were going to manage their indebtedness, any rationalization to prevent the bank’s foreclosure will serve justice. As we have seen, that which is justice to one is often injustice to another.
We do not attach ourselves to heroes we do not trust. Oftentimes one of the lawyers becomes the hero—the other lawyer the villain. I have discussed the notion that jurors tend to identify one of the lawyers as their guide through the forest of litigation. And as the trial proceeds, the parties themselves often recede into the background and the attorneys become the focus. We see this when a corporation is represented in the courtroom. The lawyer tends to become the corporate entity. He speaks saying, “We are so sorry for the injuries the plaintiff has suffered” (though the corporation cannot feel), and he goes on speaking in the first person plural, to the end that the jurors, even the judge, begin to see the corporation as Mr. Heartfelt, the corporate lawyer.
In both civil and criminal cases the parties in the trial begin to fade away, because for days only the lawyers may be heard from, while their clients for the most part remain silent. Day after day, as the lawyers argue and question the witnesses, the lawyers gradually become the litigants, so that, as I have so often emphasized, the credibility of the lawyer is all he has—and, at last, all the client will also have. In the courtroom we may encounter the most honest client who ever drew breath, but if his lawyer has lost his credibility, so, too, the client will be seen as a bird of the same feather.
In sum, before we can make the final argument we must identify the parties, the heroes, the villain—there may be more than one of each. But there will always be the star, and there will likely be the one who is principally responsible for the injuries or the failure of justice—the villain.
Step 2: Become the victim. We know we cannot make the final argument without having become the victim. It’s only when we’ve felt the injuries and the pain of the injured that we can begin to understand the stakes. Often the victim may be more than one person. In a civil case for personal injuries, the victim may not only be the child who has been injured at birth by a careless doctor, but the parents of the child are victims as well. Their burden will be to care for the child for the rest of their lives.
The victims in a wrongful-death case are not only the deceased but the surviving heirs, the husband or wife, the orphaned children, or the parents who have lost their child. In the criminal case the victims may occupy both sides of the case. In a murder case the victims include both the murdered as well as his family. But what about the family of an accused who will be put to death or imprisoned for long periods of time? The murderer’s family is often as innocent as the heirs of the person he killed.
What justice for the victim? To understand the life of the victim, we must understand what justice is available to the victim. In judgments against the negligent corporation that bestows death or injury on innocent citizens, that corporation will only be made to pay money out of its coffers. In the criminal case punishment is often seen as justice. Punishment, of course, implies that the person punished will be taught something. We justly punish a child for his wrongdoing, hoping that the child will reform. We dock a worker his pay for his misadventures on the job, hoping that he will not repeat them. But I have never been able to understand how we can teach a corporation much, unless, of course, it is required to give enough of its green blood to cause its management (the members of which are usually immune from punishment) to take notice of its diminishing bottom line. And how, pray tell, do we teach the murderer not to murder by murdering him ourselves through the executioner’s needle?
In the civil case justice will be the money it takes to provide the necessities the victim will require, and to pay in dollars for the pain and suffering he has endured. Still, the equation is never balanced. Would we rather be a man sitting for the rest of his life in a wheelchair with ten million dollars in the bank for his loss of enjoyment of life, or a healthy man who is so poor he must sleep under the bridge? Justice always comes up short. And no matter how many murderers we kill, we know that their moldering in the prison cemetery will not bring back the victim’s loved one. Yet victims are entitled to the best justice that the system can offer. When the system falls short, not only does it fail its citizens, it also exposes itself to its eventual demise.
What about the injured person, say, the mother, whose child was killed by a negligent driver who was insured and is now being defended by the insurance company? Call the driver Blatty. Preparatory for our final argument let us walk in the mother’s shoes. We have done a psychodrama and we have become the mother. As someone said, the longest journey we will ever take is from the mind to the heart.
To this mother, this strange process called a trial is like walking into a bad dream where the people in the room speak a foreign language, where they seem oblivious to her, this person who quietly sits at counsel table slowly disintegrating internally.
She has been admonished by her lawyers to say nothing and never to cry out. She struggles with a nightmarish potpourri of grief and anger and a sense of helplessness. The attorneys are arguing over things that make no sense to her, about other cases, rules, and evidence. And some of the witnesses are lying. Her own lawyer seems unconcerned about her misery and the insanity of the whole draconian drama unfolding in front of her. People are screaming and pointing their fingers at her and each other, the judge is pounding his gavel, and all she wants to do is to run out of the place. This is justice? No. It is a trial.
This mother, this plaintiff, as she is called, senses that she is being used. Without her there could be no trial. Without her, her lawyer could make no fee. Without her, the defense attorneys would likely be in ragged suits bulging at the knees, instead of their sleek, well-pressed designer clothes that cost more than the old jalopy she was driving when the drunk, Blatty, ran across the road and killed her daughter. What is there to argue about? Yes, she is being used. They do not care about her—not deeply. They care about the money, about their reputations, about winning. They have their personal agendas. They seem barely aware that she is in the courtroom.
No one has spoken to her for most of the day. The judge has never looked at her. The witnesses do not talk to her but to the lawyers. The jurors look at her from time to time with dark, skeptical faces, as if they believe she is there only to enrich herself. She is embarrassed when they look at her. They must think she is an evil hussy who wants money for a dead daughter. They are right. How can she ask for money for her dead child? It denigrates her child and reduces her to a money-grubbing bitch who would turn her dead child into dollars.
But she had gone this far. She couldn’t let Blatty get away with killing Polly and pay nothing. She wanted him to pay, to go to jail, to suffer as she has suffered, but her lawyer said that the guy was insured by a national insurance company and that he would never have to pay a penny of his own money. Somehow the cops forgot to take a blood-alcohol. The driver claimed he had drifted off to sleep momentarily. Swore he wasn’t drunk. And her own lawyer said the defendant would never be charged with anything worse than negligent homicide.
She wept for months. Once she beat at the walls in frustration. Her husband felt grief too, but not like hers. No, he was tough and he tried to comfort her, but no one knows what it’s like to be a mother who has lost her child, except a mother who has lost her child.
They sent her to grief counseling, and she learned it was all right to have her feelings, to be angry and hurt, and to experience those feelings of helplessness. For months she was unable to sleep. She lost her appetite. Her husband said she was wasting away and that she had to straighten up and face the loss. In the meantime she was told that her neighbor recently saw the guy who killed her daughter, that Blatty, at the bowling alley drinking beer and having a good time.
She and her lawyer were in and out of court for nearly two years with all the experts’ depositions and the motions filed by the insurance company. The insurance company lawyer tried to beat her lawyer with a bunch of technical garbage that made no sense to her. The insurance company attorney, a smiling prig, asked her a lot of questions when he took her deposition. He made her cry and then pretended he was sorry. He wanted to know how much money she wanted for her dead Polly and her lawyer told her not to answer. She felt like some sort of money-sucking Dracula, and his questions weren’t fair. He tried to make her look like she didn’t remember, or that she was on his client’s side of the road, or that she could have avoided the accident—that it was her fault! Her fault that little Polly was dead! He tried to make her feel guilty.
Her lawyer said she hadn’t handled it very well in her deposition. She knew she didn’t. She cried, and then she hollered at the insurance company lawyer—said he was trying to make a liar out of her. She was ashamed of herself afterward. Her lawyer said that if she did that on the stand in the trial she would lose the case for them.
As she sat in the courtroom she was afraid. What if she couldn’t control her anger? What if she broke down crying in a public courtroom? Blatty was staring at her. She couldn’t bear to look at him. She couldn’t look at the jury. She didn’t know how to look. Pretty soon her lawyer would be calling her to the stand and she would be required to testify about the accident, and about little Polly. She wished her husband were there, but he had to work. They had bills. Funeral bills. Hospital bills for her and Polly before she died. And since the accident—it wasn’t an accident, but everybody called it an accident, even her own lawyer—since the accident she had been unable to work and had quit her job. They needed the money.
Yes, just before trial the insurance company offered them a settlement—her lawyer said a hundred thousand dollars. Then the judge ordered that everyone get together in a mediation and try to work it out. She had gone, and the defendant was there along with that smiley insurance company lawyer, and all that happened was that the company offered another hundred thousand dollars, total of two, which just made her own lawyer mad. He said it was pathetic—that they were trying to get away with another murder. They had already killed little Polly, he said, and now they wanted to sneak out of the case for a measly couple hundred thousand, when the case was worth a couple of million. He pointed out to her all of the cases around the country where little girls were bringing two million and over. They were trying to cheapen Polly.
She went home and talked about it with her husband and he said they should leave it to their lawyer to decide. He knew more about this than they did. She cried a lot more and couldn’t sleep, she kept hearing her lawyer say that little girls were worth a couple of million—like the price of a racehorse or something, as if her little Polly was a thing that could be bought and sold on the auction block. She wanted justice. She wanted Blatty to pay. She wanted someone to feel like she felt, lost, drowning in grief, helpless, lost. She felt like her life was over, and that the only justice she would ever get would be the insults they were throwing at her in court, the lies in that awful place, the coldness of an impersonal law that never knew her, never knew her husband, never knew little Polly, and never had the slightest desire to do so.
Not once had the judge even smiled at her. The court officials, the clerk, the court reporter, and the bailiff never spoke to her. The jurors passed her in the hallway and never even nodded in her direction, never looked at her.
Now she was called to the witness stand. She had worn her black dress, the one she wore to bury her mother, and then little Polly. She put on no makeup because her lawyer said she shouldn’t look too pretty, even if she was pretty. She never believed him when he said that. She hadn’t been pretty a day since Polly died. She walked to the stand on her low-heeled black shoes and tried to settle into the chair and look right and proper. People were staring at her, she knew that. They were going to judge her now, to come to a conclusion as to what kind of a woman she is, what kind of a mother she’d been, whether she lied, whether she had caused Polly’s death, whether she was just trying to take advantage of a tragic situation for a bunch of rotten money. But her lawyer told her that money was all the justice she could get. Just cold, dead money, she thought, for a cold, dead child—that’s all the law provided.
And she knew the lawyer was going to ask her a lot of questions about little Polly, what she did, how they laughed with each other and played together—actually played together like little children. She would have to share the most intimate things with this jury, with utter strangers, about their relationship, the prayers they said at night, the things little Polly wanted to be when she grew up, the secret ambitions she had for her child—maybe to be a great scientist or a doctor, or someone who could make the world better—a teacher maybe. Yes, maybe a teacher.
Little Polly was bright as new pennies. The teachers said she was a very smart and lovely child. And she thought about God. If there was a God, a loving God, why had the child been taken from her? What sins had she committed, what wrong so terrible that she should suffer this loss? At times she had wanted to die, when she had thought about taking all of the pills the doctor had given her. What was the use? She had been put on this earth as a mother. Her child had been taken from her. Perhaps, in God’s eyes she didn’t deserve to live. Perhaps if she died she could be with little Polly again and they would be happy forever. She mentioned that once to her husband and the next thing she knew her lawyer and her husband had her in the office of a shrink who thought he knew all about what she was going through.
Now, on the stand, her lawyer would drag her through the whole horror again. Yes, she had to tell the jury. She was the only one who could. She had to tell them how it happened. She had to do it for Polly. And worse, she had to tell them what she saw when the crash was over—how she saw the blood covering the child’s face and her long blonde locks soaked in it. She had tried to get the child out of the car, but her own leg was broken and her ribs as well. She reached over for the child and all she could do was scream. She couldn’t move and her baby was breathing mouthfuls of blood that came out in terrible bubbles. Then she passed out and didn’t remember anything after that until she came to in the hospital. Her husband was there, and the first thing she asked was how is little Polly, and her husband just looked down at his hands and didn’t answer her.
She also doesn’t remember much about what she said on the witness stand. It was as if she were a talking mannequin and that what she said was in a foreign language that no one understood. She remembered the insurance lawyer, still smiling, asking her questions. She answered them as truthfully as she could. She was crying sometimes. She was unable to understand what the catch was in some of his questions, little nuances that she knew must be there but that she couldn’t decipher under the pressure. She never looked at the jury. She couldn’t. Her husband would never cry like this.
Then she had to listen to the lies of the so-called experts for the insurance company who tried to make it look like she was on the wrong side of the road. Then Blatty got up and lied, and she saw one of the jurors nodding as if he believed him. The next day the judge read a bunch of legal stuff to the jury, and after that the lawyers got up and argued the case. Her lawyer was first.
Before we can argue effectively we must become the mother, to join her at the heart level. It takes skill and caring to get there. How must it be to lose the child, to have people blame you, to have people suggest there is shame in suing for money for a dead baby, to have to relive the horror of your child’s violent, bloody death? This is the stuff the jury must hear from the mother’s lawyer who has tried to live this case with her. And the jury will also hear the lawyer’s own frustration—that the law of mere mortals can do nothing more than award money to these grieving parents. That’s all the justice there is.
In a way, it has become an unholy war between devastated parents and the insurance company. A fund exists. The insurance company calls it “a reserve” set aside for this case. The fund is supposed to represent Polly’s life, the reserve the insurance company clings to so desperately as if its own nonlife depended on it. If Polly’s parents decide not to go to court the insurance company would simply keep its profit—profit over the death of their child.
In the courtroom the parents’ lawyer will never be permitted to mention that the defendant was insured. The jury may believe Blatty is represented by the lawyer he hired out of his own pocket and that he is only a working stiff, as are most of the members of the jury. It’s the unfortunate law in every state in the union that insurance can never be mentioned—a lie the law foists on the jury. The insurance companies enjoy better laws than the people. But that’s another issue.
By employing the methods we have taught here we have become the mother, the victim. We have felt how it must feel to be the victim. And that experience becomes a part of our final argument. Perhaps some of it will be delivered in the first person, as if the lawyer is little Polly’s mother. I can hear that part of the argument as it begins:
“Ladies and gentlemen: This is a mother who has lost her child. (The lawyer stands behind the seated mother with his hands on her shoulders.) What is that loss? Is it money? It is a search for justice, for all of the justice the law can give. How does it feel to be seated here, your child in the grave, the jurors looking at you, the smiling Mr. Heartfelt questioning you, suggesting you caused your own daughter’s death, when you and everyone, even Mr. Heartfelt, know that that is a lie, a horrible lie? If this mother could speak her feelings at this moment we would hear her say, ‘I have had to relive the hell of this case all over again. I had to see little Polly’s happy face turn to blood. I have had to relive being trapped in that automobile. I am there right now. I am screaming, trying to get the door open….“’ And the rest of her story, as we have experienced it together, will come out in the final argument in the first person so that the jury, too, will relive it.
In the criminal case. Let us remember: The human emotions that are felt by the victims in a criminal case, say, the feelings of a mother whose child has been abducted and murdered, or the feelings of a woman who has been assaulted and raped, are not substantially different from those felt by Polly’s mother. The need for vengeance, for retribution, for justice are part of the human composition. But we are defending the alleged criminal—that is to say, we are there to see that the defendant gets a fair trial and that his rights are preserved. Why do we want to know anything about the victim in the criminal case?
Each of the jurors has likely been a victim of some crime—a break-in, a theft, an assault. Jurors are afraid of criminals, and the most expeditious way of protecting themselves as potential victims is to do away with the accused, guilty or innocent, by seeing him to the gates of the penitentiary as quickly as possible. So we must become the jurors, the surrogate victims in any criminal case.
Employing the methods we have learned here by reversing roles with the victims, our argument to the jurors on behalf of an innocent client might sound like this:
“I cannot tell you, nor can we ever fully feel the pain of having a loved one murdered. It leaves a scar so deep and so intractable that it will never heal, not if Mr. and Mrs. Schoolcroft live a hundred years. The horror of having a loved one taken from us by the hands of a fiend is something we cannot understand. There is no pure time to grieve, because our grief is overlaid with shock and anger and a need for justice. A part of us wants to kill back. But we cannot. And we would not.
“We cannot sleep without seeing the face of our murdered child asking why this has happened to her. We cannot go about our business, because everything we see or touch reminds us of her. We cannot turn on the television, because our case is being discussed publicly as if it is some kind of spectacle to entertain the viewers. We are ripped apart with our emotions. There is no place to go, to hide, to relieve ourselves of the sight, the horror.
“But there is another victim here, and that’s Jimmy, the defendant. He is charged with this horrible crime. It is a crime that the evidence shows he did not commit. We have all been made victims here, you, the jurors, who have been victimized by the state’s false charges against Jimmy, the Schoolcrofts by the horrible loss of their beloved child, and Jimmy by being charged with a crime he did not commit because the state failed to do its job honestly, fully, and competently. The state wants to solve this case and to close its files as do we. But we cannot let them do so by victimizing all of us, including the Schoolcrofts who would be the first to object with all of their hearts if they knew that the state’s files should be closed by the persecution of an innocent man.”
This argument might continue with living a day in the life of Jimmy, who has been confined in jail for seventeen months awaiting trial. It will recount his own horror (that can be fairly inferred from the facts) at being charged with a crime he did not commit. The argument will discuss his terror at being confined for the rest of his life, or even executed, when he is innocent, and his sense of helplessness. (Many states do not permit lawyers to argue the punishment that awaits a person found guilty of the charge brought against him. But jurors know, and the issue can be approached in a general way so that the specifics of the punishment are not set out.) We have tried to live the client’s case, to understand his fear. And part of the argument in that regard might sound like this:
“How would it be to go to sleep at night on a dirty, hard mattress in a steel box called a cell and dream of the executioner’s needle and to awaken in a cold sweat knowing that it is not just a dream, that it is the reality awaiting him if he is not able to convince a jury of his innocence?” Perhaps there will be objections here. Strangely, in many states the law does not want jurors to consider the consequences of their decision. The same law demands that we fully consider the consequences of our acts, failing which we may be held responsible by the law.
Step 3: Feel the righteous indignation, the ethical anger that motivates us. We have traveled to a painful place, to the heart place of our clients. How we got there may depend on who we are and what resources we have. Perhaps we have arrived there through days of attending to our client, from hours of listening. Out of our listening skill we will be able to hear not only what little Polly’s mother has said, but what she has not said, what she is afraid to say, what she has blocked from her mind in order to simply survive another day. We have reversed roles with her. By these methods we have grown to understand her, and she us. We have said to the mother, “Let me be you for a moment. I see Blatty’s car coming at me. What do I feel? What do I say? What do I hear?”
If we are the Schoolcrofts, the victims in the criminal case, we feel the same, a grief that is also stained blood red with anger. If we are Jimmy and we are innocent, we feel fear first, and then anger and frustration that we cannot escape from this trap. A fog of justice denied, of righteous indignation covers all of our feelings. It is an ethical anger. And our anger is the fuel of our passion for justice that moves the final argument, that forms the tone of the argument, that touches and energizes us in our delivery. We can be gentle, if it is appropriate. But let us think of this energy as the empowering anger of justice. We will not lose our sense of reason, but justice, at last, demands retribution. Our need for justice will become the theme of the argument and will set its tone; and having felt it, it will erupt in an argument that will connect to the jurors’ native need for justice as well.
Step 4: Determine the justice you want. In little Polly’s case the final argument might sound as follows.
“We know we cannot get justice. The only justice the law offers for little Polly’s parents is a fund of money. It sits over there on the desk of Mr. Heartfelt. Imagine it as a large box. (I might pick up a cardboard box and take it over to the defense table and set it there.) Imagine that this box is filled with bills of a large denomination. In the law it is the fund that represents the life of Polly. How much is in the box? You will have to tell us. I would suppose the box contains five million dollars. Perhaps more. Perhaps ten. You will decide. This is how I imagine the justice in this case—sadly, the only justice there is. But Mr. Heartfelt’s clients want to keep all that’s in the box.
“What are little Polly’s parents to do here? Their child has been killed by Mr. Blatty over there, this child who was suddenly smashed so that what seconds before was a beautiful, happy child is converted into blood and horror and death. Mr. Blatty was drunk. The evidence is clear on that. He doesn’t even try to deny it because he can’t—he’s a drunk driver who ran his car onto the wrong side of the road and killed a little girl. Had he done it with a club, we would call it murder. But he has done it with something thousands of times more deadly than a club—a car that weighs more than a ton and becomes a steel club traveling at eighty miles an hour, the force of which is nearly incalculable. He was the killer. His car was the weapon. Yet the only justice we can ask for here is what’s in the box. No one goes to jail in this case. Why? Well, his honor says we cannot go into that.
“The law is so helpless. It cannot bring little Polly back, not even for five minutes. If it could, her parents would say to the defense, “Keep the box. Keep all of the money in the box. Keep it all! Just give us back little Polly for five more minutes! One smile from her, the feel of her arms around the neck of her daddy, her cheek against her mother for five minutes—but the law is helpless to provide little Polly for even five minutes. It can only give money.
“So what are Polly’s parents to do? Should they say, well, Mr. Blatty, since the law cannot give us back little Polly, not even for five minutes—since there is no adequate justice here, well, just keep the box. Keep the money that stands for Polly. You want it so badly. Well keep it. Should they say that? Should they permit Mr. Blatty to not only kill their daughter but to be enriched by keeping the fund that is in the box? Are they not entitled to receive the best justice the law can provide, even if it so piteously inadequate?
“And the guilt here! Ah, yes, the guilt! How can parents take money for a dead child? That is the guilt that is laid on Polly’s parents. You’ll not hear Mr. Heartfelt say so in so many words, but he will likely remind you that these parents are here to get money, as if what they are about is shameful. But he will not say that it is wrong for the defense, for Mr. Blatty’s side of the case, to keep that money. How do parents feel who have lost their child, to take money in place of their child when there is no other justice but a fund of money? They feel guilty. But should they?
“I have not heard Mr. Blatty even say he was sorry. Not a single whispered word. Not a bowed head. Not a tear of remorse in his eye. Just the smirk, the arrogant swagger. This man has done nothing but desperately clutch onto that box of money by launching the defense he has in this case—a false defense that he knows is false.
“I feel sorry for him. He must hurt terribly inside, the killer of an innocent child. It must be hard for him to face it. It must be hard for him to look over at Polly’s parents and to say what he has said. He must be a very miserable man, to have first killed and then tried to cover it up with his denials and with the expert he has hired in this case to undermine the testimony of the patrolman. I am sorry for you, Mr. Blatty, and I have no hatred against you. Only sadness that you could not walk into this courtroom and admit what you did. Perhaps you cannot bear to face the truth. I can understand that. The burden of guilt you must bear must be horrible. Yet, in the end, your denial of the facts, yes, even your attempt to cover the facts with the testimony of your expert, Dr. Fix, can be no substitute for the truth, and, in the end, cannot assuage your guilt.
“The defense in this case has not tried to make life better for little Polly’s parents. Instead they have tried to transfer their own guilt for Polly’s death onto her mother, who was driving the family car. The defense has hired an expert here to come into this court, an expert who took an oath, and who tried to show that the patrolman was wrong when he fixed the point of impact clearly in the lane of Polly’s mother. It is one thing for a drunk driver to kill a little girl. But what are decent people to do when the drunk hires the likes of Dr. Fix to come in here and tell you that Polly’s mother lies, that the patrolman lies, that the experts we called are all wrong, and that the truth in this case is the story Dr. Fix, this so-called reconstruction expert, has concocted?
“Justice has many facets. It is not just money. Justice will also be a verdict that tells Polly’s parents that the suffering, the grief, the pain, the inexorable ripping of their very hearts and minds has been understood by this jury. You can turn them out if you want. You have the power. You can say with your verdict, we do not know, nor do we care how it has been to sit in this courtroom and hear the evil mendacities that have been hurled at these parents—the unspeakable transfer of guilt. You can say that you do not care to concern yourself with the pain that comes from seeing one’s child killed in front of one’s eyes, the shock, the horror of it and then have the drunk over there blame the mother for her own child’s death. That is the most despicable assault that one human being can make on another.
“Justice speaks in many ways, and although the verdict here can only be in money, your verdict can say that these parents were heard, that there were other human beings on this jury who understood.
“We are not here asking for sympathy. No one wants sympathy. We want only understanding. We want to know that somewhere out there on the face of this earth are humans who understand the pain, the helplessness, yes, the anger that these parents have endured, endured as decent law-abiding citizens, endured silently, endured without aggression toward the man who killed their child, that they have instead expected the law to do its duty, and that you, as jurors, the spokespersons for the law, will do yours and return the full justice that the law allows.”
We can immediately see that the specific facts of the case have not been repeated. They have been used as reference points in the argument. There may be further facts that should be argued that show that the defendant’s reconstruction expert is wrong, that he is a hired charlatan—whatever the evidence may be in that regard, but always, the facts are but ammunition for the argument and are never to be recounted in the form of witness summaries. But throughout the argument the tone will reflect our sense of ethical anger, and honestly delivered, our argument will infect the jury and create in its members a powerful need to provide justice.
Step 5: Ask the jury to give you the justice you want. We know the old biblical admonition: “Ask, and it shall be given to you.” Whether we are talking about a jury verdict, a sale, or a proposition we present before a board or commission, we must ask for exactly what we want. Remember, when we ask for justice, it transfers the ball into the power persons’ court, in this case, the jury, who must agree to the request, modify it, or deny it. Those who leave justice to the power persons’ whim, who are afraid to ask, have already been defeated. If we do not ask, we will likely not receive. If we are too timid to lay out our prayer for justice, why should the jurors do it for us? Being candid about our expectation of justice is merely a continuation of the policy of honesty we have learned to adopt in our presentation. Lawyers ask me, “How do you get those big verdicts?” I reply, “I ask for the money. I simply ask for it.”
In this case I might say to the jurors, “How much money is enough, here? We can load a freight train full of money and never get little Polly back. The defense knows that. And they will agree wholeheartedly with the argument that since money can do no justice, well, why give any? Yes, sometimes I feel that way too. What is the use? Wouldn’t we all be better off just to let drunks kill our little children than to try to get the only justice that is available to us?
“I think about that a lot. But money speaks. I do not want to bargain for Polly as if she were a car sitting on a cheap used-car lot. I have said the fund in this case is at least five million. It’s in the box over there. I don’t want just a part of little Polly. You could give me half a million for an arm. Another half a million for her smile and her loving eyes. I don’t want justice that stands for just part of her. I want it all. All of the money that stands for her.
“Sometimes I think I have asked for too little. I am afraid and I wish I weren’t so afraid. But I am afraid that people will think that I am taking advantage of a horrible situation here, that people might say, ‘Look at that man, Spence, asking for five million dollars for a dead child. That is vulgar.’
“But the killing, was that vulgar? The most disrespect that can be given to the human race is to kill an innocent child and then claim it is vulgar to seek full damages.
“I think of the world’s most valuable painting, the Mona Lisa by Leonardo da Vinci. Its value is hundreds of millions of dollars. But it is merely a painting created by a man on canvas with paint. If some villain came into the Louvre, the museum that houses this painting, and slashed it beyond the ability of anyone to repair it, if they killed the painting so to speak, no one would argue that its full value shouldn’t be recovered from the culprit. But what if someone destroys the perfect work of our creator? Was not Polly the perfect work of God? Should I be embarrassed, yes, even afraid, to ask for a sum that stands reasonably in this society for her? I ask you not for part of Polly. Don’t cut her in half for me. I want all of her. All of her.”
In the criminal case we might argue:
“What do we want here? We want out of this horrible concrete and steel trap where nothing but hatred and vileness grows, where the sound of birds is replaced by the raging of criminals, and the sound of the voices of little children is drowned out by the laughter of the insane and the clanging of steel on steel as the prison doors are slammed shut. We want freedom. We are not interested in part freedom. There is no such thing. A person is either free or not. We do not want part justice. People who get part justice are caged along with the guilty. We do not want to bargain. Jimmy is either innocent or not. We do not want injustice. Injustice will be leaving the smear and the stink of guilt on Jimmy that can only be washed away by your verdict of not guilty.”
Step 6. Create a vision of a better person creating a better tomorrow. By the time we have lived but a few decades we soon realize this is not a perfect world. People cheat. Corporations and politicians, their lackeys, are powerful and in control. People are careless. Government is filled with bureaucrats who exercise their power wrongfully. Prosecutors want power and sometimes persecute the innocent. Greed and profit trump caring. It’s dangerous out there. People’s rights are in jeopardy. Things are not fair. Injustice is rife like the weeds in the lawn. And because we are who we are, most of us suffer a quixotic fixation of doing good and righting wrongs. Were it not so, I should not have written this book and perhaps you would not have read it.
Every case is more than a case. Most judges and jurors are at least subliminally aware of their need to make things better. Most judges will confess that they believed when they took on their robes that they could make their community better by ascending the bench.
It is we who provide the vision of a better tomorrow. It is we who empower the jury and the judge. The sixth step in the final argument is to create a vision of a better tomorrow. Martin Luther King Jr. had his dream. Christ made his promises of a place beyond that he would prepare for his followers. Our founders had their visions of freedom. Today, both Republicans and Democrats have theirs. The talent of a true leader is to create the visions that empower us. Their dreams, their visions of a better time to come become ours. Without such visions the history of the human race would be locked in stagnation. So we must provide a vision for the jury.
But there is perhaps an even more compelling need that hunts us down like hounds on a hare. We have that bothersome need for ourselves to become worthy, to feel the joy and the pride of having done right. Ebenezer Scrooge ultimately listened to his noisy inner voice that also commanded charity. The human race engages in the most abominable of atrocities. It conducts wars against the innocent and destroys the earth for profit, but all of our cruelty and viciousness is for the announced goal of doing good. In the courtroom we will create a vision that will empower the jury to do right, not only for those who follow, but in the fulfillment of the juror’s own need to become worthy. In little Polly’s case we might hear ourselves arguing:
“Factually, little Polly’s case is simple—a drunk runs onto the wrong side of the road, smashes into an oncoming car, and kills an innocent little girl. What do we, as jurors, want to say about this? We have the power. Justice is in our hands—today, and yes, tomorrow in countless other cases of innocent mothers and fathers and children being killed. Do we recognize our power? Do we understand that in a nation whose laws are based on precedent that there will be an endless line of innocent children, yes, innocent people who will look back on this case for guidance? Do we realize that jurors in the future will need the courage that you can provide by your verdict here to bring uncompromised justice to many other innocent little Pollys? Do we understand that our verdict today may save some children in the future by making the killing of innocent human beings so expensive that society itself will take more urgent steps to prevent the placing of such a deadly weapon as an automobile into the hands of a drunk?
“Most of us do not understand our power. We live so vividly in the present we have little understanding as to what the consequences of our acts will be in the future. I think of the founders of our Constitution, who, by their vision, are responsible for our being together today. But for them there would be no jury, no trial of the kind we have experienced. But for them there would not be twelve ordinary citizens deciding what is right and what is wrong. As they met on that hot Philadelphia summer, to sweat and argue in a poorly ventilated place we now call Constitution Hall, do we think that they foresaw us gathered here today? Did they have full understanding of the consequences of their labor, their love for freedom, their passion for justice? It was probably more likely business at hand—the need to act wisely and decisively to establish a new nation. I doubt that they could have understood that a jury would be evaluating the life of little Polly here today.
“So it is with us. We have the power to do right. We have the power to do what is just. We have the power to tell the world that drunks cannot kill our children without paying every uncompromised penny that that child stands for. It is your power. It is a power that will extend into the future to protect the innocent. Rarely do we have the opportunity in our lives to bring about important change and, by doing so, to fulfill our own destinies. Most of us are never given a chance to exercise the God-given power that is vested in each of us. It ought not be wasted. These are such rare opportunities that fate provides the chosen few.”
In the criminal case the vision is of an innocent man walking out of the courtroom free. The argument could be:
“A great American said, ‘I have a dream.’ I have one as well. As the clerk reads your verdict, our hearts will be wildly pounding in our chests and we will be barely able to breathe.
“I dream that after your verdict has been read a great joy will erupt in this courtroom. I have a dream that when your verdict is read an indescribable, nearly godly relief will come over Jimmy and over us. He is free. And in my dream I see us all walking out of this courtroom together as free persons—you, as jurors who have done your duty, who will go home to your families knowing that you have done the right thing, and Jimmy who will walk out of this courtroom with you, also a free man, a man who can go home to his wife and his family, a man who has learned that there is still love in this world—even for a simple man such as Jimmy—and that the greatest proof of such love are two simple words, ‘Not guilty.’
“I have a dream that this great American system of justice still works, and that even the humblest of us, the poorest, those of us who were forgotten both by man and by the law, can achieve justice here within these hallowed walls.”
Step 7. An ending transferring the lawyer’s responsibility for the client to the jury. So you are a juror, and you have heard the final arguments from the plaintiff in the civil case or the defendant in the criminal case. In both the civil and the criminal case there must be a truthful but dramatic ending, one that transfers the responsibility for our client from the lawyer to the jury. This is a story I have told many jurors in both civil and criminal cases as a way of transferring responsibility for justice from me to the jurors.
“Soon you will march out of here and into the jury room where your decision of justice will be made. Perhaps you have looked forward to this moment. Perhaps you have dreaded it—this moment when you will be called upon to pass judgment on another human being. It is a frightening time for me. In a few moments I must give up my client to you. In a few minutes I must entrust this case into your hands. I do not want to let go. I am afraid.
“What if I have not done my job well enough? What if I have failed in creating the same level of caring for little Polly and her parents (in the criminal case, Jimmy) as I care for them (him)? Yet, in the end, I trust you. But this is a hard time for me.
“Before I leave you I want to share with you a story I tell in nearly every case. It’s about transferring the responsibility of the case from us, on behalf of little Polly and her parents, to you, the jury (or on behalf of Jimmy to you, the jury).
“It’s a story of a wise old man and a smart-aleck boy who wanted to show up the wise old man as a fool.
“One day this boy caught a small bird in the forest. The boy had a plan. He brought the bird, cupped between his hands, to the old man. His plan was to say, ‘Old man, what do I have in my hands?’ to which the old man would answer, ‘You have a bird, my son.’ Then the boy would say, ‘Old man, is the bird alive or is it dead?’ If the old man said the bird was dead, the boy would open his hands and the bird would fly freely back to the forest. But if the old man said the bird was alive, then the boy would crush the little bird, and crush it, and crush it until it was dead.
“So the smart-aleck boy sauntered up to the old man and said, ‘Old man, what do I have in my hands?’ And the old man said, You have a bird, my son. Then the boy said with a malevolent grin, ‘Old man, is the bird alive or is it dead?’
“And the old man, with sad eyes, said, ‘The bird is in your hands, my son.’
“And so, ladies and gentlemen of the jury, the case of little Polly (or the life of Jimmy) is in yours.”
In the civil case, preparing the rebuttal first. As a young lawyer I lost an important case because I hadn’t prepared a rebuttal. The purpose of rebuttal in a civil case is to show that the defense’s argument is wrong, or incomplete, or not relevant. I thought, how could I prepare my rebuttal argument until I had first heard what my opponent argued?
So I was listening hard, furiously making notes. I was not only listening to his argument, but at the same time I was trying to come up with an argument to rebut it. I was attempting to make notes on both what he said and what I would say back. I began to panic. “Oh my God. I can’t remember what he just said because I’m writing what he said before, and now I’ve got to hear the next thing that he’s saying and make a note as to what my response will be,” and suddenly I was lost. His argument was overwhelming me, and when I got up I was not only frightened but confused as to how to organize my last words to the jury.
If during the planning stage of our final argument we reverse roles with our opponent, as we have so often in this book, we will have anticipated nearly everything that our opponent is going to argue. If we have taken time to prepare our rebuttal argument in the quiet, it will be simply brilliant. The few points that we need to add we can add with ease. The few points we may overlook will not be important. We have been in control of our rebuttal, not our opponent, and we will win.
Listening to the opponent’s argument. Over many years I have learned that the sound of the opponent’s voice will tell me if he is saying something important—at least to him, and if it’s not important to him it will not be important to the jury. I simply close my eyes and listen to the sound of his voice. Often his argument will be mumbled, spoken fast, delivered in technical, dull language or otherwise dumped on the jury with little or nothing to cause one to take notice. Why should we answer those arguments? By rebutting them, we call the jury’s attention—probably better than our opponent has—to issues or facts the jury likely paid little heed to. Only when I hear the excitement in his voice, a vibrancy that stirs me, do I choose that point as one to be answered.
Other arguments in the criminal case. In the criminal case we are fighting for freedom. The life of our client, and, indeed, our own, is at stake. When the jury brings in its verdict, it is as if our necks are stretched out on the chopping block as we await the fall of the ax, or mercifully the ax will be withheld when the clerk reads the magical words of life, “Not guilty.”
Of course we will argue the facts as they show innocence or as they (more often) show the failure of the state to make its case. We will remember with the jury the flaws we encountered in the state’s case, the lack of proper investigative procedures, the carelessness of the officers, the fact that others could have committed the crime, the unreliability of eyewitness identification, the motivation of snitches to lie, the infamous characters that surround the prosecution as witnesses, the need of the prosecutors to convict at any price, the suggestion of behind-the-scenes shenanigans, the failure of scientific evidence, the tests that were not made, the state’s experts who were mere lackeys, whatever unfair tactics were put into play by the prosecutor during the trial, the witnesses that should have been called but were not, the evidence that should have been preserved and presented and was not, the failure of the state to prosecute the big shots instead of the easy mark—the powerless defendant, the absense of the proof on each element of the crime, including the failure to prove a criminal intent, the interest of others in using the criminal processes against the defendant for their personal gain, and whatever other facts and issues exist that should be argued. All of these questions point to the defendant’s innocence, the lack of sufficient evidence to prove his guilt beyond a reasonable doubt, or, indeed, the injustice of finding the defendant guilty under the circumstances of the case—something called jury nullification, which we shall consider in a moment.
Arguing reasonable doubt and the presumption of innocence. All of us are presumed innocent, or so the old saw goes. But once the charges have been leveled and made public we are presumed guilty. The human brain is incapable of graciously bestowing on the accused the presumption of innocence. We have been fooled too often. Corruption among the most respected members of our community is rife. Poor people rob as well, but not as efficiently. Crime on and off the streets is rampant. You can’t tell the innocent from the guilty by looking at them. They can all look innocent. Then the realization begins to sink in: They look innocent, act innocent, are presumed innocent, but they are guilty. If they weren’t guilty, why would the prosecutor charge them? Where there’s smoke there must be fire. So much for the presumption of innocence!
But if at the beginning of the trial the jury sees Jimmy as probably guilty, the presumption of innocence becomes merely a meaningless technicality, leaving Jimmy with the burden of proving his innocence or going to prison (or perhaps the death house).
Yet under our law the defendant is not required to prove anything. The total burden of proving him guilty rests with the state. So what do we do when we know that the jurors do not, cannot and will not see our client as innocent from the start? I often discuss this phenomenon with the jurors during voir dire. The discussion might go like this:
“Do we really believe that Jimmy is innocent?” I wait for an answer. Not one of the prospective jurors raises a hand. I might then turn to one of the jurors. “Mr. Abernathy, do you believe Jimmy is innocent?”
“Of course, you are right. You don’t know. But the law says that Jimmy is presumed innocent. What does that mean to you?”
“It means that we should see him as innocent.”
“But in our hearts we think he is probably guilty, don’t we? I mean, that’s what I thought when his file was handed to me, and I was assigned his defense. This man is just another one of those criminals who now wants us to think he is innocent.”
“I don’t know.”
“When we are told to presume Jimmy innocent, we are simply being told by the judge that his being charged here with these crimes means nothing about whether he is guilty or innocent. It means that the prosecutor has to prove his guilt because he is presumed innocent. How will we remember that during the trial?”
“We’ll just have to remind ourselves, I guess.”
“Yes. Thank you, Mr. Abernathy. And I will try to remind us as well.”
Simple visual aids are often more effective in making a point than a wheelbarrow full of words dumped on the jurors. In the final argument I may go to the blackboard or flip chart and draw a line: Then on the line I may insert a middle point on the line. I say to the jury, “This is where the trial begins. No evidence had been given to you at this point. Now, this is where the prosecution must go to prove Jimmy guilty beyond a reasonable doubt.” (I then mark the far right end of the line labeled GUILTY BEYOND A REASONABLE DOUBT.) “And this is where Jimmy is throughout the trial—even to the moment you go into the jury room to deliberate.” (I mark the far left end of the line labeled PRESUMED INNOCENT.)
“Now, folks, the prosecutor’s proof must be so clear, so convincing, that his proof has caused each of us to move the place where Jimmy is, presumed innocent, from the far left of this line to the far right of this line. Even now Jimmy still sits here presumed innocent. The evidence of the prosecution has come and gone. It has been examined and cross-examined. And after these many days of your patient listening and consideration, nothing has budged Jimmy from the safe place where the law places him and each of us who may be charged with a crime—that is, he was presumed innocent to begin with, and he is still presumed innocent because the prosecution’s evidence has failed.” At this point I may begin my dissection of the state’s case.
And this business of reasonable doubt—the defendant says the state must prove every element of the crime charged beyond a reasonable doubt. But what is reasonable doubt?
That which is reasonable doubt to the accused is just so much lawyer talk to the prosecution. The prosecution sees reasonable doubt as a stew of unreasonable arguments meant to mislead the jury from its bounded duty to convict. To the defense, reasonable doubt is the safeguard provided every citizen to protect against the conviction of the innocent. Jurors may have their doubts, all right. There may be those arguments revealing that every crack in the case has not been sealed shut. But what if the juror embraces a reasonable doubt argument and a guilty man is freed to commit a similar crime again? What if a serial killer has been created by the juror’s vote for acquittal based on reasonable doubt?
The defense of reasonable doubt is more readily accepted by the jury when the crime is one of passion, where the likelihood of a repeat performance is not real, where there is sympathy for the accused, where the alleged crime was morally justifiable or humanly understandable—the wife, for instance, who is charged with murdering an abusive husband; the husband who is charged with having beaten up a person who has intruded into the sanctity of his marriage; the accused who is charged with murdering someone who was morally depraved. But beware the argument of reasonable doubt where the accused may be a vicious murderer.
Jurors will not chance their own potential guilt for turning a killer or a rapist loose. There may have been reasonable doubt, all right, but under those circumstances reasonable doubt is merely an argument. And like all arguments, it can be rationalized into oblivion.
In such cases, perhaps the argument of reasonable doubt would sound like this:
“I wonder why our founders protected us with reasonable doubt? Why isn’t it enough that we should trust the prosecutors who sit so comfortably over there? They are honorable men and women. Why should we demand that they prove this case beyond a reasonable doubt?
“I suppose lawyers in the days when our Constitution was formed were as zealous as we lawyers are today. Prosecutors have their jobs. And they have their personal agendas. They want to win, as do we. But winning for them is quite different than for us. Winning for them is just another victory in long careers of countless victories. If they win they can go home tonight to the comfort of their family and their home and the security of the law protecting them. But if we lose, Jimmy goes back to a lonely concrete wall where his companion is his terror of what will become of him, of his family, and his very life. He will go back to steel bars and foul food and evil men for company. And we, his lawyers, will go home to our own nightmares and our sense of guilt that we did not do enough to save Jimmy.
“But our founders knew from their own unhappy experience that prosecutors have all the power and that an innocent accused can never prove the negative. Few of us can ever prove our innocence. How many of you have watched the prosecutor in this case take innocent acts and turn them into evil acts? Jimmy changed clothes, not because we all change clothes for whatever reason, but, as the prosecutor insists, because he wanted to hide his identity. He didn’t come home as he usually did. Sometimes we vary from our habits. But the prosecutor argues that he must have dreaded seeing the body where he left it in the middle of the living room floor. He had life insurance on his wife, as do twenty million other Americans. But in this case the prosecution will argue that Jimmy had life insurance because he wanted to profit from the murder. He sold the house. Who wants to live in a house with such horrid, bloody memories? But he sold it, according to the prosecution, because he knew he killed his wife there. No innocent act, no innocent statement, is immune from an evil connotation attributed to it by this prosecutor.
“The accused can tip his hat and say good morning to the neighbor lady and the prosecution would claim he was trying to act normal and cover up his guilt. The accused can say, ‘What a beautiful day,’ and the prosecutor will claim he made that remark to his secretary at the office in order to cover up his state of mind, a guilty mind that was contemplating murder. The most innocent of acts are all subject to an evil interpretation by the prosecutorial mind.
“But the way the prosecutor sees things tells us more about the prosecutor than the defendant. And our founders knew this. As a consequence, proof beyond a reasonable doubt became a part of our system of justice. The Constitution says prove your case, Mr. Prosecutor. Do not make those clever arguments by which you turn innocent conduct into premeditated maliciousness. Prove your case by hard, irrefutable facts. And prove not just one fact or a dozen. Prove all of the facts, so no reasonable doubt remains.
“The right that is bestowed upon us, that protects us from the clever and persuasive arguments of the prosecutor—that the state must prove its case beyond a reasonable doubt—was given to each of us. This is a right that belongs in the family safe, if we had a safe and could put it there. It is the most precious right of all. If it is swept over lightly, if it is ignored even in part, if every element of this case is not proven beyond a reasonable doubt, we have opened up the family safe of each of us, yours, your children’s, and their children’s to come, and it is not all right to ignore reasonable doubt—not even a little bit. When we do that, the right is stolen, and case by case it becomes less and less able to protect us, until we give it only lip service and innocent people are sent to prison.
“The problem we face is an insidious one. None of us believe that we or any of our loved ones will ever have to call upon reasonable doubt to protect us, because none of us or our loved ones will ever be in such a situation as Jimmy is today. We do not believe we will ever get cancer or we will ever have a heart attack; in fact, some of us believe we will never die. If we lived every day in fear of death to the same extent that we may fear it when faced with a terminal illness, we could not live our lives. We are constituted as human beings to believe that the bad luck, the tragedies always happen to someone other than ourselves. So we will never be charged with a major crime. It will only happen to the Jimmys of this world. Not us. And we are not so careful in protecting the sacred right of proof beyond a reasonable doubt. But remember: When we do not afford its protection to the likes of Jimmy, to the poor and the helpless, we will find one day that that right is no longer available in its full and beautiful power to protect us. When you protect Jimmy with reasonable doubt, you protect us all.
“Simply put, we cannot guess Jimmy into the penitentiary.”
Often the defense of reasonable doubt is interpreted by the jury to mean, “Well, the prosecutor proved the bastard was guilty, all right, but the defense is saying he didn’t prove it enough.” But a case well proved by the prosecution can be thrown out on reasonable doubt if the jurors have prejudices or experiences of their own that mitigate against the conviction of the accused. I think of the O. J. Simpson case. To many, the case was a slam-dunk for the prosecution. Simpson was guilty of the murder of two people: his wife and the unfortunate, attending male acquaintance. But who were the power persons in the case—who were the jurors? They were ordinary people, mostly black, who had their own experiences with the police and the law. No doubt their experience taught them that the police do lie, that they do plant evidence, that they often can’t be trusted. They saw Mark Fuhrman claim that he never said the n word, and likely disbelieved him as they disbelieved much of the state’s case. And the prosecutors? What about them? Did they think that Marsha Clark was the kind of guide the jurors would feel comfortable with, one who would lead them through the forest of evidence and law, one they could trust? And Chris Darden—what about him? Did they see him as the token black man who was thrust into the case to appease a predominantly black jury? Possibly these issues would not have persisted with an all-white jury. But most white jurors have not experienced the police and the law in the same way that black people in Los Angeles have. Reasonable doubt, like beauty, is in the eyes of the beholder. What is reasonable doubt to some is only a specious argument to others.
The role of reasonable doubt in protecting the jurors. Jurors have rights too. We often forget that jurors want to do the just thing. Suppose a juror has to go home wondering if he or she was right in voting for conviction. The juror realizes that he or she has the power to stop the conviction, because the verdict had to be unanimous. What if the juror tosses and turns in the night, not quite sure of the evidence, not quite sure that the defendant is guilty. The juror lies there staring at the ceiling thinking, “I could have stopped this. Maybe I should have. What if the state was just too powerful? What if Jimmy didn’t have a good enough lawyer and he failed to bring out the facts surrounding the lineup identification? What if the witness the state failed to call would have told the truth and Jimmy wasn’t even there?”
One might argue to the jury, “The protection of reasonable doubt is not just a protection for Jimmy. It protects each of you. You are men and women with good souls and clear consciences. But what if you were pressured by the prosecution’s arguments to convict Jimmy, and when you got home you began to worry about what you had done, lying awake at night concerned about your decision, your worry that you may have convicted an innocent man?
“The rule of reasonable doubt is to protect you. You have a right not to be concerned about your decision. It must be clear to you so that all worry about whether you were right has been removed by the evidence. That is why we have reasonable doubt—not only to protect the accused, but to protect you as well.”
Exposing the motivations of the police and the prosecutor. As we have seen, every participant in the case possesses a need that must be filled. The judge has his needs—to be seen as fair but tough on crime, and never as one who lets a vicious criminal escape through some legal loophole. The judge has a need to satisfy his constituency. If the judge is on the federal bench he has a reputation to maintain. He has to face the criticism of the media as well as that of his friends and colleagues. And perhaps he wants to be elevated to a higher court.
The prosecutor has his needs. He wants to become governor, or a judge, or he wants to become the chief prosecutor, or he is simply a competitive person and wants to win.
The defense counsel has his reputation to protect. He can’t afford many losses at the hands of a jury, or he’ll never get the big case. And when he’s representing an innocent accused, he must somehow save him. In any case, he must show himself to be competent, so that if his client is convicted another lawyer asking for a new trial at the time of the appeal can’t claim in the public record that the defendant had incompetent counsel.
The jurors want to make certain that they have done justice, that they have not turned a guilty man loose, that they can go home and face their friends, neighbors, and fellow workers and not be embarrassed by their verdict—that some smart defense attorney hasn’t pulled the wool over their eyes.
That which is left after all of the participants have fulfilled their personal needs is what remains for the defendant. The defendant wants his freedom, but he can’t have it until everyone else has first satisfied their needs. That’s why we see so many plea agreements. The prosecutor overcharges in nearly every case. The defendant may be facing, say, fifty years in prison. The prosecutor offers to accept a plea to a lesser crime that carries ten. This was probably the crime the prosecutor should have charged in the first place. The defendant is afraid. If his lawyer (often an overworked public defender) can’t win before a jury, the defendant will go to prison for the rest of his natural life. If he accepts the plea, maybe he can get out in five to seven years. His lawyer is afraid as well. If his client will accept a plea agreement, then he doesn’t have to risk the total loss of the case. The prosecutor is satisfied because he has another conviction. The judge is satisfied because the prosecutor is happy and will not use his office to criticize the judge. What’s left is what the defendant gets—and most often it’s not justice.
I remember a case I defended in which the young man accused of murder was a pitiful-looking smallish kid who wore thick glasses and whose eyes were as large as half dollars. He was charged with having stabbed a pretty female worker to death. But there were other legitimate suspects for the crime. The prosecutor was a tall, skinny man who displayed a protuberant hawklike nose. In my final argument to the jury I referred to my client, the boy, as the sparrow. I walked back from the jurors to where the boy was seated and looked at my helpless-looking client. “The hawk wants the sparrow!” I said. “The hawk is hungry for him, yearns for him, has spent these many weeks trying to sink his talons into him. Well, the time has come.” I walked over to the prosecutor’s table and took him in with a gesture. “Let the hawk have the sparrow!” I shouted. I saw some of the jurors shake their heads, no. I went on to say that the police had to solve the case. It was easier for the police to charge this little sparrow than for them to do a thorough investigation and come up with the guilty party. The heroes would be the jurors who were empowered to save the boy. And they did.
In my defense of Randy Weaver at Ruby Ridge, the interest of the government was to cover up its own crimes, the crime of murdering an innocent boy, his dog, and his mother, who was standing at the door with her baby in her arms when she was shot by a government sniper. The FBI and the federal marshals were out of control. They abused their power, and again the jurors would be the heroes who would save an innocent man, but only after the venal conduct of the government had become the centerpiece of the defense.
The question is always, why did the state or the federal government choose this person to charge with these crimes? The answer is often vested in the needs of the prosecutor or the law enforcement agency. In my defense of Imelda Marcos, the former first lady of the Philippines, the need of the government was very clear. The District Attorney in New York, the now-famous Rudolph Giuliani, had written a letter to the State Department guaranteeing the conviction of Mrs. Marcos. Her husband was dead, and the new regime in the Philippines would not permit Mrs. Marcos to return her husband’s body to his homeland. The case was about international politics—the need of the United States to foster a favorable relationship with a country where we maintained an important military base. She had been charged with scores of crimes that she had not committed. Out of the many witnesses who testified over the months-long trial, not one could claim they had ever seen her commit a single wrong. But when the jury understood the reason she had been selected for these charges the jury forthwith acquitted her. (Who else was there to charge? Her husband was dead and obviously couldn’t be brought to trial.)
Sometimes the motivation of the prosecutors is to quell public outcry when, indeed, to do so against a particular defendant may be unjust. But if we are representing an innocent defendant we need to discover why the prosecution is trying to convict an innocent accused.
In Chicago I represented a black man who, along with two other black men, was charged with the rape of a young woman and the murder of both her and her boyfriend. All three men were convicted and my client received the death penalty and languished on death row for eighteen years, an innocent man. I got into the case after he had been released from prison and absolved of the murders through DNA. I sued Cook County for this young man’s wrongful imprisonment, and the county, on the edge of trial, settled the case for a very substantial sum.
In the murder trial the evidence against these men had been thin and perjured. I believed the police knew all along that the case was wrong, and the prosecutors must have known it as well. There seemed to be an attitude prevalent in those days among the police—maybe we did get the wrong kids, maybe they were innocent. But what difference did it make? If they weren’t guilty of this crime, they were guilty of other crimes that they got away with, or crimes that they would surely commit in the future. It was just one more black kid off the streets. So, what was all the crying about? In that case, the murder and rape of the white girl, and the murder of her white boyfriend had caused a furor in the city. The cops had to find an answer, and quickly. They did, with the testimony of a young black woman whom they forced to give perjured testimony against the young men the state had fingered.
Even when the accused may have committed the murder, the question is, why does the state seek the death penalty? If the public were against the death penalty the prosecutors, also astute politicians, would not seek it. Why are some low-level corporate renegades charged with crimes while the top dogs go free? Why does the prosecution choose this defendant, but fail to charge others who are guilty of even worse crimes? The motivation for the prosecution’s decisions in any given case needs to be carefully examined and, if appropriate, fully revealed.
Shotgun charges. Rarely do we see cases today in which the indictment is but a single charge. In the case of money crimes, each alleged embezzlement or each fraud is alleged as a separate crime. We see cases that include scores of charges, each of which carry many years of penitentiary time, so that if the accused were convicted of each and were required to serve the time for each he would be as old as Methuselah by the time he became eligible for parole.
The prosecutor knows that his proof may fail on one charge, but maybe he’ll get the accused on another. He also knows that the accused faces the almost impossible task of defending himself not just in one case, but in many cases which are combined for a single trial. Facing such an overwhelming challenge is like being shot at with a shotgun loaded with buckshot. If the shooter doesn’t get you with one of the buckshots, he’ll get you with another. And any one of the pellets can kill you. Facing this nearly impossible challenge to survive, many an innocent person has pled guilty to one charge, in order to be saved from a conviction of many—better that an innocent man spend, say, five years in the pen than a lifetime.
I see prosecutors and defense attorneys trading on the lives of the human beings who are dragged before them as if they were commodities. Many are guilty of crimes, yes. But these citizens were guaranteed the right of due process under our Constitution. The trick of prosecutors has been to find lawful ways to deprive the defendant of his right to a fair trial. The method is overcharging, either by charging a defendant with a crime more serious than the one he has committed, such as charging him with an assault with a deadly weapon (the deadly weapon being the boxer’s fist as an example), rather than a simple assault and battery, murder instead of manslaughter, or charging the defendant with many crimes that stem from a set of single misdeeds. A defendant has a right to a trial by jury on, say, a charge of manslaughter, something that might carry ten to twenty years. But he is deprived of that right, forced by his fear of a conviction of the more serious charge of murder, which could land him in the penitentiary for life, so he pleads guilty to manslaughter. The prosecutor wins another, without even a trial. The defendant is deprived of his right to be tried on the only just charge that could have been brought against him. This injustice is a standard, daily occurrence in every community in America.
Suppose that the defendant is a brave person, one braver than most of us. Suppose he believes he is not guilty of the crime and that he’d rather spend long years in prison, yes, even the rest of his life, than to plead guilty to a crime he did not commit. The final argument might sound like this:
“I think of Jimmy who sits here silent, afraid, his life out there as a target. The prosecutor has leveled his shotgun at him. The prosecutor’s gun is loaded with buckshot. He doesn’t have to be a very good shot to hit Jimmy with a shotgun. Anybody can hit you with at least one deadly pellet of buckshot from a shotgun. One pellet can kill you as easily as a dozen, yes, one charge can convict Jimmy as easily as the twenty charges that the prosecutor has leveled here. The prosecutor knows what he’s doing. He understands that he has a weak case. That’s why he’s shooting at Jimmy with a shotgun loaded with buckshot.
“What is the strategy of the prosecutor? He knows that jurors are reasonable people. He knows that a juror will say, ‘Well, yes, it’s obvious that Jimmy hasn’t committed every crime with which he has been charged, but he must be guilty of something.’ The prosecutor knows that some of you will say this is a totally unjust case—that it should never have been brought. He had the same facts and evidence that you as jurors have. But the prosecutor also knows that there may be some jurors who will argue that out of the twenty charges he must be guilty of at least one. Maybe more. And he knows that in the jury room you as reasonable people may argue and argue until, at last, as reasonable people, someone will say, ‘Let’s compromise. Let’s find him guilty of one and let the rest go.’ Then everyone will be happy. Everyone except an innocent man who will be as dead with that one pellet that he’s been hit with as if he’d been hit with all of them.
“That is the insidious dynamic of this case. The prosecutor knows that reasonable people like to compromise. We have been taught to compromise from our earliest years. Do not fight. Don’t be so stubborn. Listen to the other side and compromise. This is what we do. And Mr. Prosecutor knows that. He goes home tonight while you deliberate, and he relaxes in front of his fireplace and has a nice dinner with his wife and family, and he’s not worried about the outcome of this case, because he knows that you, the jury, reasonable people, will compromise, that you will allow at least one pellet from his shotgun charge to strike Jimmy, that you’ll find him guilty of at least one charge, and that will satisfy Mr. Prosecutor, because he has convicted Jimmy and made a criminal of him forever, and Mr. Prosecutor has won yet another case—another notch on his gun.
“In the meantime Jimmy will be a criminal and he will always be a criminal. He will always be smeared with the taint and stink of being a felon. His wife will always be living with a criminal, should he ever get out of prison, and his children will always have a criminal for a father.”
Arguing punishment. As we’ve already seen, in all but a death penalty case, the law in most states prohibits a defense attorney from mentioning the punishment the defendant will face. Obviously, the law is attempting to hide from the jury the consequences of its acts. People who are called upon to make decisions that will affect the life of another forever ought to be fully informed as to the consequences of their decisions. Don’t we put people in prison who have failed to consider the consequences of their acts?
We might try to let the jury in on the secret—what will happen to the defendant if he is found guilty. Objections to our attempt will likely be sustained, but it seems to be a morally proper argument and unless we try we have already given the opponent that victory. The attempt is a no-lose proposition—if we try to make the argument and are prevented from doing so, we are just where we would be if we hadn’t tried in the first place. On the other hand, we just might be successful.
I attempt to discuss punishment not directly, not saying, “The defendant will go to the pen for twenty years if he is found guilty,” but discussing the matter in a more oblique way. If my effort is wrong, the prosecutor can object and the judge can rule so as to prevent a further discussion of penalty. Perhaps this is what I will say:
“I can see Jimmy now. The case is over and the sheriff puts the shackles around his legs and the cuffs on his hands and he is dragged back to his cell, a convicted criminal. One word has changed his life. One word! The word is ‘guilty.’ I go to him in his cell. He can hardly speak. I can hear him say, ‘Well, Mr. Spence, you did pretty good for me. You saved me from all but that one charge. You won nineteen but you lost just one. That’s pretty good.’ But what he hasn’t said is, ‘I will suffer as much from one guilty charge as from twenty. I will be away from my family as long with one guilty charge as with twenty. Why didn’t you tell the jury that?’ And so I have told you that. One buckshot kills as surely as twenty.
“What are the consequences of finding him guilty of a single charge? I am not permitted to tell you the years he will rot in the penitentiary. The law does not permit me to do so. But I can tell you that Jimmy will never take his boy fishing. Perhaps not even a grandchild. He will never celebrate his twentieth wedding anniversary with his wife. Will she be there when he gets out? I would bet on it, but both she and their little boy are innocent of any crime, as is Jimmy. And this good woman and their child will be punished as surely as if they had been a part of this alleged scheme—for twenty years or more.”
Vouching for our client’s innocence. Many courts do not permit the defense attorney to argue that in the attorney’s opinion his client is innocent. It is a prohibition against vouching for the innocence of one’s client. Here again, one wonders why? If his client is innocent, why can’t the defense attorney give his opinion on the matter by saying, “I believe my client is innocent” as well as the prosecutor who says, “I believe the defendant is guilty?”
But we can argue that “the evidence establishes that this defendant is innocent.” That is argument, not vouching. A closer issue is when we say “the defendant is innocent,” or we speak of “an innocent client,” which can be interpreted as merely implying that the evidence establishes that the defendant is innocent. Such statements fall just short of vouching, but when we represent an innocent client we need to get as close to the truth of our case as we can.
The power of a single juror. We must not forget that a jury is composed of individuals. In any group there will be leaders and there will be followers. If we have not been elegantly successful in our jury selection, there may be a juror or two who will lead the rest over the cliff. Each of us, jurors or not, must learn to appreciate our own power. No one has power over us. The jailer may hold the key, our employer our opportunity to advance, the police on the street the power to direct us where we travel, but the ultimate power over each of us is the power we wield over ourselves. A juror’s vote is his power. It belongs to him or her exclusively. In a criminal case perhaps that is the most important power in the courtroom. But jurors need to understand their power before they can use it. Let me explain as I might to the jury.
“I hear all the time that I am only one person. I don’t have any power. How can I change anything? We have grown up believing that the power over our lives is vested in others, in our parents, our teachers, the boss, the politicians—everyone has power, but we do not. It is a sort of insidious robbery of our personhood, because each of us has great power, not only over our own lives, but over the lives of others. And I can think of no better example of the power of the individual in America than one who serves on a jury.
“The verdict here must be unanimous. Each of you must agree to send Jimmy away. That is a huge power vested in each of you—each of you—because when any one of you say, no, I do not agree to send Jimmy away, then that will stop it. Any one of you can stop it. To put it another way, what happens to Jimmy is your personal responsibility—not the jury’s responsibility as a whole, but the responsibility of each of you, individually, as jurors.
“I know we work in groups. We do not want to stand alone. We do not want to be the odd person, the troublemaker, the one who does not follow. On the other hand, each of us has our own individual power. It is for us to decide how to use it. Of course, it is your duty, as the court will instruct you, to listen to the position of your fellow jurors, but you are not required under the law to relinquish your honest conviction. It is yours. Your power, your right, your duty to determine this case for yourself. Each of you can stand alone if you believe you are right. And if you do it is your duty to do so.
“You have told me you would do so when you were chosen as jurors. Each of you told me that if you believed Jimmy was innocent, or that the proof of the state fell short, you had the courage to stand alone. I asked you that during jury selection because it is the most important power any citizen in America has, to determine the fate of another’s life.
“It is for this reason that Jimmy is in your hands—not in the hands of all of you, but in the hands of each of you. He is yours to do with as justice demands of you. You have the power, each of you, a power separate from anyone else’s power. Each of you have more power than the prosecutor. Yes, each of you have even more power than the judge. The judge cannot dispose of Jimmy or free him until each of you decides first. Jimmy is the one who is powerless. He is in your hands, each of your hands.”
The jurors’ promise not to pressure each other. I am always afraid of the browbeating juror who forces one of lesser strength to submit to his position. So, we might say to the jury:
“One of the beautiful things about the American jury system is that it honors each of you as individuals. Although you are a member of a group, you are each respected individually. Some of you may be more outspoken, more assertive, even more argumentative than others. We would expect that, would we not? But the mere fact that some may be more expressive does not mean that they have more power. For each of you has the same power, the power to save Jimmy.
“Because the law respects each of you as individuals, I know that each of you will respect the right of your fellow jurors to their opinion. It is alright to present your ideas. You should. But it is not alright to put undue pressure on your fellow jurors to agree with you. You have told me when you were chosen that as a juror you will respect the opinions of other jurors, even if they do not comport with your own, and more important, that you will protect the right of any juror to disagree with the majority. And we are grateful to you for doing just that.”
The defendant has failed to take the stand. I have said I rarely put the defendant on the stand in the criminal case. And I will tell the jury why.
“Folks, we know that Jimmy is not required under the law to take the stand and to testify on his own behalf. And we know the reason. The Constitution of the United States protects those who have been charged with a crime from having to testify. The law further says the fact that Jimmy has not testified will not be considered by you in any way, that you will not take that into account in determining Jimmy’s guilt or innocence.
“Why did our founders give us that protection? Why shouldn’t a person who is charged with a crime, and who is innocent, not want to take the stand and testify? I would want to. Perhaps you would too. But our founders knew that something happens to a person who is charged with a crime. It is a horror, a living horror to be charged and to be innocent. He cannot defend himself. He must cry out his innocence. But if he protests too much he will be seen as guilty. If he gets angry he may be seen as guilty. If he forgets a fact under the heat of this trial he may be seen as guilty. People often do not believe the accused who testifies. They think he may not only be guilty as charged, but a liar as well—someone who will take an oath and perjure himself to escape conviction. Nothing that he says on this witness stand can ever acquit him, and our founders knew this.
“Moreover, the defendant is but a lay person. He is not skilled in dealing with the likes of Mr. Prosecutor over there, who would love to bombard him with those clever questions that can confuse and confound and make the most innocent person look guilty. How could Jimmy, with an eighth-grade education, ever compete with this prosecutor who is skilled in this business of cross-examination? It’s for these reasons that our founders have protected us. I have decided as his lawyer that it is best for Jimmy to let me speak for him as best I can. At least the contest will then be fair.”
And I might add in the appropriate case: “And in any event, why should Jimmy testify when the state has failed so miserably to prove its case? What is there for him to rebut? One cannot rebut the state’s guesses and its assumptions that are based solely on circumstances. No one could. And Mr. Prosecutor sits over there, eager as a cat on a mouse to get Jimmy on the stand so that when Jimmy gets confused, or forgets, or gets angry at his harassment you will believe Jimmy is guilty. I am not going to give Mr. Prosecutor the opportunity to try to make a case out of Jimmy when he has none.”
Jury nullification. We often hear people wonder about jury nullification, that is, the power of the jury to nullify the law and to return a verdict that is just, despite the law. Jury nullification was a part of our system until judges began to realize that jurors too often for the judges’ liking returned verdicts in favor of defendants who were charged with crimes under unfair laws. Today the courts or legislatures in nearly every state have nullified jury nullification, despite the constitutions of many states that provide for it. How do we talk about jury nullification when that right has been stripped from juries? One might discuss the issue in the following way:
“The purpose of the law is to do justice. The laws of this country are supposedly designed to provide justice to the people. But what if the law, as applied, does not do justice? What then do we do? What do we do in such a case?
“Jurors are judges. You judge the facts, the judge judges the law. But facts are meaningless if the law is unjust. The law was not intended to punish innocent people. Sometimes the law does not fit the facts. Sometimes the law, if applied, will result in a terrible injustice. You cannot change the law. You will be instructed by his honor that you must follow the law. Yet, in the end it is in your power, and yours alone, to do justice.”
This is our last chance to speak to you. In all but a few jurisdictions in this country the prosecution has the right to close—the right to the last argument. Here is what we might say to the jury about that:
“When I sit down, Mr. Prosecutor has the right to the last argument. I must remain silent. You will hear nothing from me again on this case. My lips will be sealed by the law. The logic of the law, if it is logical, is that, since the burden of proof rests with the prosecution, the prosecution should be give the last opportunity to convince you, to rebut what we have said in our defense, and leave you, the jury, with the words of the prosecutor ringing in your ears.
“That is the law. We cannot change it. As the prosecutor argues, I must remain silent and you will see me squirm. I will not be squirming because of what he says, but because I cannot get up and point out the fallacy of what he says. I have only one comfort, and that is your good, sound, honest memory of what took place here. And I know you will be fair. So here is what I ask of you: When you hear the prosecutor’s close, know that I could answer every point he raises. Every one. But instead of me answering, you can answer for me when you go into the jury room. With the belief that you will do just that, I will feel more comfortable remaining silent as Mr. Prosecutor hurls his last word.”
Charisma and other considerations. We do not speak to each other in the same way that we speak to the jury. An effective closing argument can be made in a conversational tone, but the excitement of the case, the justice that begs for attention, the emotional need for retribution and vindication call upon us to speak with all of the genuine power we can muster. The final argument should not be seen as a performance. Yet it becomes a performance, and, as such, it is rooted in truth and sincerity. Indeed we must perform.
Charisma is the controlled transfer of raw emotion. It is getting in touch with one’s own molten center and permitting it to come forth in a controlled eruption that touches the listener and passes on its inimitable heat.
One cannot speak in any convincing way about falling in love without first having experienced it. Two people in love cannot experience it without the transfer of the emotion between them. So it is with the performance on the stage or in the courtroom, before the jury or in the boardroom. Nothing happens until the raw emotion is somehow first listened to and felt by the speaker, and thereafter transferred to the listeners.
The performance of the final argument permits us to tap into an area of creativity that is not available to us when we speak one-on-one to our friends or to our wives and children at the dinner table. We do not perform for them. The dramatic is not the tone people adopt in speaking to each other. The dramatic is acceptable on the stage, but it is not appreciated in everyday conversation. In the courtroom the theatrics must be real. The presentation must be honest. But it will not flow over a cup of coffee. At last, this business of effective oration is in part the product of charisma.
First, let us again remember that our heads have been put into strenuous training from almost the moment we could say our first words. Think of it this way: Suppose that at about the age of two our parents put us into rigorous, continuous body-building workouts. By the time we get to kindergarten we could press fifty pounds, and the training goes on for year after strenuous year, until, by the time we get out of college, we could lift nearly a thousand pounds. But we couldn’t run even a block. We couldn’t dance. We couldn’t even skip and hop. About all we could do is to trudge along carrying a monstrous body, flex our muscles, and lift those prodigious weights.
So our minds likewise have been put into training from the time we were old enough to begin counting. The focus of our training has been mental exercise. We learn that logic, reasoning, and thinking, always thinking, are the keys to success. We are told not to engage in that “touchy-feely stuff.” We believe that those who are sensitive, creative—those who are spiritual—are somehow acceptable misfits. We endure them but we do not deeply respect them. Most often they do not make large sums of money. They are not a part of a thinking, intellectual society. We most respect those who have a powerful, measurable intellect.
No college offers courses on how to feel. Academia is chiefly brain muscle. To weep or to explode in joy are not the end result of a college education. We build the muscles of the mind so powerfully that there is no room for the tiny, atrophied creative and emotional spaces in our makeup. We cannot sing. We cannot paint a picture. We cannot write a poem. We cannot hear the early morning song of a bird and recognize its attachment to heaven. We are crippled by the muscles of the mind.
But as we have learned, justice cannot be defined. It is not the product of a mathematical formula. When we have experienced justice we feel it. When it has been taken from us we also feel it—deeply. Justice may not be understood as a conventional feeling such as pain, or fear, or joy, or sorrow, but justice can be understood only on a feeling level. If we have received it we may experience peace or a sense of satisfaction. If we have not, we may feel anger or pain. We can argue all day about what is or is not justice. We can exercise the muscles of the mind until they collapse. We can cite the law, or old, moldy precedent, and drown ourselves in the intellectual marathons of scholars, but, at last, justice is nothing more than a feeling. That being so, how can we argue for justice without having a deep, soul-deep, understanding of how it feels to be deprived of it?
Charisma is the transference of the passion we feel to those with whom we communicate. We can exhibit no charisma if our communication is anchored in the intellect where it becomes frozen and shriveled like a pansy in a snowstorm. Charisma does not emerge from the mind. It rises up out of our passion. Passion is not a mental exercise. Passion is an unleashing from the emotional core. And it is difficult for us to experience passion when our emotional core is buried beneath the rock-hard iceberg of the disciplined mind.
I am not arguing that we ought not use our minds or that we ought to scoff at intelligence. I am saying that to be real, to be whole, to become a person, we must be open to the heart as well as the mind. To many, especially lawyers, any dealing with heart stuff is frightening. Where might it lead one? One might care or love, and that leads only to hurt. One might weep, and that leads only to shame. One might show anger appropriately, and that leads only to rejection. Emotions, we have been taught, get in the way of reason. But as we have seen, reason is the slave of emotion. We make our decisions on an emotional basis of one kind or another and end up supporting the decision with reason. Although we have been trained otherwise, every decision we make is first made in the gut and then shored up with reason.
I have said that charisma is derived from passion. Without passion we are shooting blanks, as it were. Our passion comes from outrage, outrage that our client has been injured, killed, improperly charged, or deprived of human respect. Charisma can also come out of love and understanding, out of caring, and out of the faint joy of hope. It can be spiritual, but it is always directly connected to the emotional core.
Unless we have a passion for justice there can be no justice. Unleashing our passion is the power we call charisma, a power that is contagious, that has moved us first and that surges on to move an audience, a jury, a customer, or a friend. I see charisma as being located within my heart area, as if it is contained within a large internal bowl. When I speak out of my passion I sense that I have inserted a tube into the heart’s bowl, and that the passion I feel is transferred through the tube, up into the throat. The throat opens, and the power escapes through my lips and at last begins to fill the emotional container of my audience. That transference is the dynamic of charisma. But it starts with us. Without our own bowl filled with passion, our own caring and outrage, indeed, our love and understanding, there can be no charisma, for there is nothing to transfer.
Eye contact. So we are about to make our final argument to the jury. To whom do we make this argument? We refer to those twelve people as “the jury.” But, remember again, they are individuals. Each has an immense power. Each can vote against us. Each can become our ally in the jury room. Each can save us. And none must be passed over or ignored.
On any jury there will be those individuals with whom we feel most comfortable and those with whom we feel more distant. So it is in every group of people. You can be sure that the mirror is at work here. If we feel distant to Mrs. Smith on the jury, it is very likely that she has the same feeling toward us. And we can very easily alienate her, because we are not going to speak as readily to her as to the other jurors who have shown their openness toward us.
But if we do not talk specifically to each juror, the juror who has been by-passed will feel left out. And that juror will resent us. We must spend equal time talking directly to each juror, not in the order of their seating, but randomly. Eye contact is the way we talk to the juror personally. I see lawyers skimming the jury panel with their eyes as they talk. That lawyer has, in fact, refused to become personal with anyone. And the jury will refuse to be very open to him. We must speak to each juror. Generally I speak to a juror until I feel it is time to move on. Sometimes my discussion with the juror will last as long as thirty seconds, before I decide to speak to the next juror. Absent such eye contact that is combined with the completion of a thought (or at least a sentence) we will have missed one of the most important opportunities to convince our jury, because no juror is likely to be convinced by the lawyer who doesn’t care enough about the juror to spend some personal time with him or her.
What shall we wear? Everything we wear makes a statement. I know lawyers who wear the finest suits, the most expensive shirts, with those embroidered initials on their cuffs and diamond-studded cuff links. I see them parade in front of the jury in alligator shoes and pretty silk handkerchiefs in their suit pockets that match their ties. The statement is that I am fancy. I am wealthy. I am a dandy.
I see lawyers who come into court with their shoes scuffed, their shirt collar curled up on the ends, and their pants puffed out at the knees. And the statement is that I am careless and have little responsibility—at least for myself—and if I have none for myself, how can I be trusted to have any for anyone else?
I have often been seen on television in a fringed buckskin jacket. But the courtroom is a different arena. One should wear clothes that call as little attention as possible to the wearer. We are not models. Our garb should be plain, simple, neat, and inconspicuous. I usually wear a dark jacket, perhaps navy blue, and gray trousers. My only variance from my rule of dress is that I wear plain black boots because they are historically a part of me, and it would be uncomfortable for me to wear any other footwear.
I am not a fashion expert by any means. For women, their dress should be simple, with little or no jewelry, the skirts should not be tight fitting or short. A lot of leg and belly may be in style on the street and in the cocktail lounge, but it creates problems in the courtroom. Any attention that is contrary to the business at hand, a statement that says, “Look how sexy I am,” instead of “Look how professional I am, how reliable, how trustworthy,” will send the wrong message.
Some years ago I was trying a case in New Mexico for the family of a young man who died on the operating table as the result of the negligence of the anesthesiologist. I thought I had tried a compelling case and that my final argument had been powerful. I expected the jury to return a sizable verdict for my clients in short order. But the jury was out for many hours. The jurors did, in fact, return a record verdict. But I wondered why it had taken them so long.
I had the opportunity to talk to one of the jurors later. He said, “Well, Mr. Spence, one of the jurors noticed your Rolex watch.” So what? I thought. Like many tourists who have been in Hong Kong, I bought a Rolex, but the model I chose was an unpretentious sports model in stainless steel. “Why would that make any difference to the juror?” I asked. “Well, because,” the juror said, “you present yourself as a simple country lawyer. You drive to court in an old pickup truck. And here you are wearing an expensive Rolex watch. The juror wanted to know, who is this guy anyway? Is he real? Is he to be trusted? Things don’t match up here.” That was a lesson to me. We ought to be consistent in who we are. A guy who drives an old pickup truck and wears plain clothes in the courtroom ought not be wearing a Rolex. And I haven’t since then. Credibility is often founded or lost on small things.
The sex thing. I am not against sex or being sexy. Its energy is the stuff of life, and life without it would be like biscuits without gravy, or pop without fizz, or something like that. But in the courtroom the sex thing has to go. I admit that as a younger lawyer I often tried to seat a handsome-looking woman on the jury, with the rationalization that, since I had to talk to a jury for many days, I might as well have the pleasure of looking at some comely lass. But the rest of the jurors are quite aware of what’s going on. That an attorney might give more attention in the direction of the pretty one, that, indeed, he might forget himself and be guilty of showing off a bit, like a puffing sage grouse strutting his stuff in rutting season, is a matter that is not missed by the other jurors. Their resentment sets in immediately. And it can be costly.
Once, as a younger lawyer at the peak of my superciliousness, I decided to try my case to an all-woman jury. In one way or another I was able to get all of the men off the jury except one. I found out later that in the jury room the contest became one between me and the one man on the jury, a sort of revisit to the primeval. I suspect, without knowing, that that contest cost my client many thousands. The fight was not with the opposing counsel, but with that one male juror—a contest for dominance over the eleven females. The center of the conflict should have been with my opponent and his unjust case. The sex thing in the courtroom hurls us back into primal places that are usually at odds with justice.
The nonlawyer in the boardroom, the sales room, the boss’s office—closing the deal. It’s time to close the deal. We’ve prepared and presented our case and supported it with facts and data. We’ve faced the opposition bravely and intelligently. We’ve listened and we’ve been heard and the time is at hand. It’s now or never. Although the decision on the part of the power person will likely have been made even before our final pitch, we have this one last chance to prevail.
Creating the vision. At the close our attitude is one of confidence, but it is laced with a kind of joy. I feel it all the time when a salesperson is painting his vision for me. He seems happy. He sees the beauty of the automobile he wants to sell. He touches it fondly, lets a certain joy escape that seeps out as a smile on his face. He loves his product and his love for it is contagious. I begin to love it as well, more than before. I see me driving down the street in this beautiful machine. It makes a statement about me. I can smell its newness. I feel its soft leather caressing me. I sense a sort of happiness derived not from the car itself, but from the vision I have of driving the car, of becoming its owner, all of which is buttressed by this salesperson who continues to smile and speak on and on about the virtues of my pending decision.
My wife, Imaging, is talking about remodeling the house. There will be a cozy room where we can sit down in the evening alone and read or watch a movie. Her vision of the room is transferred to me, and I feel the joy of it, the closeness we will share. I think of it as the love room, and the first nail in the new room has not yet been driven.
Creating the vision is the ultimate calling of any who wish to close a deal, to sell the boss on a new idea, to convince a council to adopt a better approach. Whatever we want, whatever our agenda, the closing pitch is our final argument. As we have seen, we all yearn to be worthy. The vision we offer a committee is its opportunity to do good, to be remembered, to be lauded. The vision may simply be their roles as heroes of a kind, those who face the adversity of a hostile majority and nevertheless do the right thing. The vision we create for the boss may simply be seeing himself as a fair and successful businessman.
As we have seen, in business trials exist as well. When there’s trouble in the business, responsibility for the trouble is unloaded on someone. The person who is the target will occupy the same position as the accused in a criminal trial, except the constitutional safeguards that protect us from the state are not usually available to the poor devil who stands to answer for some corporate failure.
As we have seen, trials in business are conducted in meetings and presentations that are sometimes stacked against the accused. The presentations are rigorously prepared. A judge presides, often the reigning officer, or a jury, sometimes a committee of vice presidents or department heads. The stakes are high. The winner may save his job, the loser may be gored with a pink slip. Fairness is not the issue. Profit is the issue. Power is the issue. The personal agendas of the company officers are the issue—securing their position up the company totem pole is the issue. Fear is the prevalent emotion, fear that is often exchanged for anger.
The agenda may deal with what the business world thinks of the corporation, the value of its stock, and the integrity and competence of its officers. Appearance may become more important than substance. Truth may become lost in deluding company smoke. In the end, the meeting, the trial and its conclusion in the corporate setting has most of the elements of a final argument. We will hear from both sides, who will make their pitches. A judgment will be made. Heads may roll.
Some last thoughts about the final argument. The final argument is not a plea for sympathy. We get sympathy from our loved ones, the priest, our friends, and a paid-for sympathy from our psychologists. The final argument is about justice. It reaches into places where we store our ethical anger. It focuses on our righteous indignation, but the argument can be delivered with compassion, with love, but always with a demand for justice.
The final argument is not only about justice, it’s about those who are called upon to deliver justice. We define ourselves by the decisions we make. When a plea for justice is delivered to us as the decision maker, we either stand by our own sense of justice or we join those whose injustice brought the matter before us in the first place. We are given choices—we can seek a kinder world, a better place in which to work, a better corporate community, a society that refuses to condone profit over human life, a civilization that puts human life above all else, or we can join the unenlightened who have preceded us at the expense of justice. The final argument will at last define both those who seek justice and those who provide it.
My final argument to you. The human race from the beginning has been engaged in a terrible cosmic struggle from out of the darkness into the light. We are an infinitesimal part of it. Still, each of us, no matter how humble, no matter how lowly and seemingly powerless, has a critical part to play. We must only recognize our role. And take it on.
I’ve been around a long time and I’ve made many mistakes, both in and out of the courtroom, some of which I deeply regret. Yet without our mistakes and the pain we’ve suffered on their account we would have lost the opportunity to grow. So, at last, we must embrace our mistakes.
I often think of my life as a flower. One of my favorite flowers of spring is the alpine buttercup that follows the melting snow into the sunshine. In the early spring it fights its way up through the cold, hard earth. If we could reverse roles with a buttercup as we have reversed roles so often during this adventure, what might we discover? We become this tender, whitish-yellow shoot. It hasn’t touched the sun yet. The green is yet to come. The tender shoot pushes up through this cold, hard earth and—behold!—this year’s plant is born. But, from the moment it first peeps above the surface of the ground it is subject to all the dangers and injury that can befall anything alive and growing.
The old elk comes wandering along and steps on the tender shoot and smashes it down. Yet the shoot pushes back up. The hungry chipmunk discovers it and bites off its tender delicacy. Still out of its reservoir of power the buttercup once again pushes up. There seems to be a magical energy in its roots that causes it to struggle toward the sun despite the adversities that attack it. Then one day it bursts into a tight, light yellow bud. Perhaps we understand the buttercup. Are we not budded up as tightly when we emerge from our schools and take our places in this unyielding, rigid society? Do we not complain that we can’t bloom in the face of the soul cramp and heart trap we experience in this money society? Then something happens that permits us to either bloom and burst out into all of our pure golden glory or, sadly, we wither while we’re still in the bud.
In these chapters I have hoped to provide for people’s lawyers, as well as for people themselves, a vision of how they may more effectively present their case and win in and out of court, a vision that will permit you to launch into blooming.
I have gone through the process of blooming. But is it not the obligation of plant and man to spread its seed? That, in part, is what I have been about in these pages.
I have said that justice in America is a myth. Much too often justice is not delivered to the deserving. Much too often it is a dream, a hope, an ideal from which we are rudely awakened when our time comes to seek it. What we see is not the blindfolded Justice holding her scales, awaiting the time when right outbalances wrong, but, instead, a vision of the same woman with her back turned to us.
The failure of justice in America lies at the feet of those who are responsible to deliver it, from the politicians, the judges and lawyers, to the corporate overlords and their minions who exercise power over the daily lives of their workers. But the burden belongs to each of us as well—to the teacher who creates visions for our young and to the cop on the beat who sets an example of fairness and justice on the street. Indeed, it belongs to parents whose cautious and caring exercise of power in the family instills a respect for authority and a love of justice in their children. At last, the responsibility to seek justice also belongs to those who suffer its failure.
Many a decent citizen struggles daily before boards and commissions and in the workplace toward a betterment of their lives and those of their neighbors and fellow workers. And whenever our rights are trampled by power there will always be those who courageously step forward to fight for justice, lawyers for the people and, yes, the people themselves. Yet their goals are often stymied by their inability to communicate effectively and to present their cases in a winning way.
I join the masses of citizens of this world whose goal is to make their contribution, as trivial and parochial as it may seem, so that the space we occupy on the earth has not been wasted. It’s my hope that I have provided some insights here that will touch each of you in a way special to you, guidance that will help make more of your life’s struggles, from bud to bloom, winning ones, ones, in the end, that will empower you, as well as me, to spread our seeds.