Legally Speaking: Low Points In Closing Arguments

John G. Browning Dec. 10, 2009, 1:00am

I've always loved closing arguments – the rhetorical battle for the hearts and minds of the jurors, the "Rashomon"-like war of competing narratives as lawyers blend storytelling and verbal counterpunching.

But in an age of sound bites, shortened attention spans, and the importance of visualization, closing arguments nowadays increasingly resemble dueling PowerPoint presentations more than the real-life theater that they've traditionally been.

That doesn't mean that dramatic flourishes have disappeared altogether; of course, like any live performance, the performers don't always succeed.

Sometimes it's the lawyer's statements or gestures that don't exactly inspire confidence. Carlos Perez-Olivo was disbarred as an attorney by New York state authorities in 2006. Among many other reasons (including failure to return client money and a previous disbarment in Puerto Rico), disciplinary authorities cited Perez-Olivo's disturbing closing argument in a client's murder trial.

Elio Cruz, a waiter, was on trial in 2004 for shooting his wife's lover. What compelling statement did Perez-Olivo make in Cruz' defense?

He apparently had a bit of a memory block, and so said "there is more, ladies and gentlemen of the jury, but I've forgotten it." Not exactly what you want to hear coming out of your lawyer's mouth.

One juror was so disturbed by Perez-Olivo's performance that she wrote a note to the judge complaining about it and voicing her concerns for anyone else Perez-Olivo might be hired to defend. Needless to say, Cruz was convicted.

And for Austin criminal defense lawyer Adam Reposa, it wasn't exactly what he said that got him in trouble. In response to argument by opposing counsel in March 2008, Reposa allegedly rolled his eyes and made a repetitive hand gesture simulating masturbation.

In a later hearing for contempt of court, Reposa was found guilty, sentenced to 90 days in jail and led out of the courtroom by bailiffs. Apparently, it's difficult to make hand gestures when you're in handcuffs.

On other occasions, a closing argument doesn't work because the jury just isn't buying what the defense attorney is saying. For example, take the lawyers defending Cesar Rodriguez in his January 2008 trial for allegedly killing his 2-year-old stepdaughter with a blow to the head.

What indisputable proof did they present of Rodriguez' parenting skills and love for his stepchild? The lawyers offered the jury a photo of a mug that their client had supposedly received from the murder victim, a mug emblazoned with the words "World's Greatest Dad."

That's right – they relied upon a cheap souvenir bearing a slogan that has appeared on countless T-shirts, key chains, greeting cards, refrigerator magnets and trophies. Lead prosecutor Ama Dwimoh dryly countered, "As evidence comes out, it becomes clear that the last thing he was was 'World's Greatest Dad.'"

In November 2009, a New Jersey jury had a similar problem with the credibility of attorney Walter Lesnevich's novel defense of his client Edward Ates. Ates had been charged with the murder of Paul Duncsak, an executive who had been married to Ates' daughter and who later became embroiled in a bitter custody fight with her.

Lesnevich's pitch to the jury? According to him, Ates was "too fat to kill" anyone. The 285-pound defendant was, the lawyer argued, so fat that he wasn't physically capable of walking up a flight of stairs, pulling a trigger six times, and then getting back in his car and driving away.

Of course, it didn't help that by the time Lesnevich was urging the jurors to "look at him," Ates had lost more than 60 pounds. In any event, the jury convicted Ates of murder on the second day of deliberations.

Lawyers are sometimes accused of using their arguments to drop a bombshell of information on the jury. Kansas lawyer Sam Kepfield might have taken that advice a little too literally.

During his closing argument on behalf of client Anastasia Daily – on trial for forgery and theft – Kepfield pulled out a grenade and placed it on the ledge in front of the jury box.

The defense attorney was arguing that Daily had been forced by co-defendant John Bradshaw to participate in the forgery of stolen checks, since Bradshaw was allegedly threatening to kill her dog and injure her daughter.

Under Kansas law, Kepfield had to show compulsion – that Daily was under threat of great bodily harm if she didn't commit the crimes. To demonstrate an example of such an "imminent threat," Kepfield pulled out the (fortunately inert) grenade, removed its pin, and asked jurors "Are you afraid now?"

The strategy could have worked better. The jury took about 15 minutes to convict Daily of forgery, conspiracy to commit forgery and misdemeanor theft.

And Kepfield may have to find new props for future closing arguments; the county sheriff announced an investigation into Kepfield's bringing a "weapon" into the courthouse in possible violation of Kansas' statute on "criminal use of explosives."

Lawyers have turned to biblical verse, literary classics, references from popular culture, and their own anecdotes to hammer home the central themes of their cases to juries during closing arguments. They have been accused of using fireworks (verbal only – sorry, Sam Kepfield) and smoke and mirrors.

To really make an impression on a jury, perhaps attorneys should try real smoke and mirrors, like trial lawyer and professional magician Steven Leventhal of Philadelphia. Leventhal, who has performed all over the world, frequently incorporates magic and illusion into his closing arguments in order to reinforce certain points with jurors.

But Leventhal, seasoned litigator that he is, understands that gimmicks and showmanship can only take you so far. As he puts it, "The jury is smart enough to understand that the facts make or break a case."

John Browning is a partner in the Dallas office of Thompson, Coe, Cousins & Iron LLP. He may be contacted at:

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