A GOLDEN OPENING

We all know what the golden rule is during trial: a party cannot ask the jury to place themselves in the situation of the defendant or victim- and then ask the jury how they would feel if so situated. (Lost in all the hoopla over self defense/stand your ground is the fact that not only is the golden rule not applicable to the defense, the defense must ask the jury to place themselves in the defendant's shoes, as the jury instructions require the jury to make such a finding as to the defendant's actions.)


We all know that Mr. Black recently lost a very difficult case in state court in West Palm Beach despite presenting an excellent defense. Mr. Black blogged about his opening statement here, and we reprint a portion of his post below.  It is without a doubt a powerful, moving opening that one would expect from a master. However, the court apparently sustained objections about the opening statement. 


Our simple question is this: isn't much of the power of the opening created through a "golden rule" violation? Should Mr. Black have been surprised that the prosecution would not sit by quietly while he masterfully placed the jury in the car in the driver's seat with his client? 


You decide: 

Here is the “first minute” of my opening argument:

“If you were standing on the side of 120th avenue at 12:45 am, you would have seen John’s car as it traveled down the street. As it gets close to the stop sign you can sense there is something wrong with the car.

If you looked into the car you see John trying to control a huge car with an enormously powerful engine that won’t react to orders of its computer. Unknown to John, the throttle control system is not working right. The throttles to this huge engine, 12 cylinders 560 horsepower, won’t close. It won’t stop the fuel coursing into the monster of an engine.

You see John trying to figure out what is happening and he panics trying to stop the car, but without success as it suddenly accelerates through the stop sign and into the intersection smashing into Scott Wilson’s Hyundai.

You see and feel the tremendous force of the collision. Smell the engines and the gas and the smoke. You hear the crushing of metal and the screeching of tires as both cars transition uncontrollably through the intersection.  They are helpless passengers along for the ride, victims both of the immutable realities of physics:  speed, force and distance.

You see John’s head slammed against the driver’s side window hard enough to shatter it. He falls unconscious.

The automobile in which Scott Wilson was driving, now separated from John Goodman’s car, is over the bank, and upside down in a canal; dark murky water, thick with vegetation, and the car all but invisible to human eye.

When John wakes he doesn’t know where he is. He can’t grasp what just happened. He can’t wrap his head around it. You can see him getting out of the car looking around trying to make sense of what happened. He looks but sees nothing. It is almost pitch black. What did he hit? He can’t see another vehicle.

He starts walking towards his house to find help but he is so disoriented and lost he goes in the wrong direction.

He has suffered a concussion, a broken right wrist, and a fractured sternum. His already damaged spine is far worse from the crash. You can see him try to walk. The pain in his legs causing him to wobble back and forth.

As he walks the full force of the pain hits him. For the next hour his only source of pain relief comes from a bottle of alcohol. It deadens the pain.

You will hear from eye witnesses, experts and exhibits:

John Goodman was not drunk or intoxicated at the time of the collision. He simply had not consumed enough alcohol prior to the accident to put him anywhere close.

His car was defective causing sudden acceleration.

He suffered a grade 3 concussion causing confusion and disorientation.

He couldn’t see anyone to render aid to.

He left his passport and driver’s license in the car and was not attempting to flee.

Under the circumstances it was reasonable to look for help rather than stand on a dark deserted street.

This was a tragedy. A young man died. But this was an accident not a crime.

It is this tragic automobile accident that brings us together in this courtroom.

Now let me take you back 7 hours before the accident:”

I thought a good way to involve the jury in the opening was to let them see, feel and hear the accident for themselves. At least that was my idea going in. Unfortunately the judge sustained objections to that and I had to edit on the fly. The judge was very restrictive in his rulings and it made it much more difficult to be an effective advocate. I found myself self-limiting what I said during the trial in order to circumvent objections and avoid annoying sidebar conferences which interrupted the flow of the arguments. Judges seem to prefer a streamlined case without any real advocacy by the lawyers...