CLOSING ARGUMENT

 Former Police Officer Derrick Chavin most likely spent his last weekend of freedom for a very very long time. The prosecution heads into closing arguments this week on what we have seen to be a slow plea with evidence admitted that would never have passed muster in our trials, especially in Florida. ME's stating that the cause of death was homicide. Puhleeze. We would have savaged the academic bookworm who opined about the functioning of lungs and the excessive force. He would have been  gasping for his own air on the stand with a cross examination that would have focused on the last time he was surrounded by a hostile crowd while trying to arrest a felon who outweighed by a hundred pounds.  While he may make split second decisions about patients lives in an ICU, how many times does his decisions affect not only the patient's life, but his own? 

But we did not try the case. 

How do you prepare for closing argument? 

Mr. Markus is known to watch "A Few Good Men" for inspiration. 

We play Bruce Springsteen's "No Retreat No Surrender" in our car every day during a trial, and in the parking lot on the day of closing. Then as we have a small break in the proceedings just before closing we close our eyes and recite this stanza from Thomas Babington Macaulay's Lays of Ancient Rome:

Then Out spake brave Horatius Captain of the gate: 

"To every man upon this earth, death come soon or late. 

And how can man die better than facing fearful odds.

 For the ashes of his Father and the Temple of his Gods." 

Benefits of a classical education. 

PLAY NICE

The 3rd DCA (Motto: "PCA all the way") has fired this warning shot across the bow of trial lawyers in the REGJB: You ignore it at your own peril. 

Faigns v State:

However, we note that comments on the credibility of counsel, such as those 

at issue in this case, are recurring in closing arguments at an alarming rate. We caution counsel for both the prosecution and defense to uphold their professional and ethical obligations and to be mindful of the line clearly established by the courts of this State. See, e.g., Jackson v. State, 421 So. 2d 15 (Fla. 3d DCA 1982); Del Rio v. State, 732 So. 2d 1100 (Fla. 3d DCA 1999). We also entreat the trial courts to be mindful of such misconduct and to respond accordingly with appropriate curative instructions and firm admonishment of counsel. 

As we say in England, "Forewarned is forearmed."

SCHEINBERG SUSPENDED TWO YEARS
When we last left Broward ASA Howard Scheinberg, he was on the losing end of a Bar Referee's report recommending a one year suspension for his canoodling, incessant texting*, and all around bad conduct with then circuit Judge Ana Gardiner during the time he was prosecuting Omar Loureiro in a first degree murder case before Judge Gardiner. But then, it's Broward, and if you don't have the judge in your back pocket, don't bother showing up for court. 

The Florida Supreme Court has affirmed the decision of the referee, upholding a violation of Bar Rule 4-8.4(d) (A lawyer prosecuting a capital case shall not engage in canoodling, texting, sexting, and /or phone calls with the presiding judge) but upped the suspension from one year to two. The decision is here. 

While the 3rd DCA reminded us to play nice, the Florida Supreme Court has reminded us not to play too nice. 

And this thought just occurred to us: A prosecutor gets suspended for two years for (more than likely) having sexual relations with a judge. Alex Michaels gets two days jail for telling a prosecutor (allegedly) to have sex with himself.  If the prosecutor in Broward had listened to Alex.....everybody wins!!!

Meanwhile, Alex Michaels did what he does best this week: A NOT GUILTY in a case before Judge Murphy. 

See you in court. 

* 949 cell phone calls and 471 text messages. When did this guy find the time to prepare for trial????

STOP THANKING JURORS

DR. Conrad Murray found guilty. But you probably already knew that.

HAPPY BIRTHDAY SY GAER. We were remiss in not reporting that yesterday, Sunday, was Sy's birthday. But it seems appropriate to remember it today, Monday, the start of the trial week in the building Sy spent his life working in. Stop by his picture on the second floor (across from the elevators) and read the wonderful words of Judge Milt Hirsch and share a few thoughts about our wonderful friend.

CLOSING ARGUMENTS:

Roy Black looks at the closing arguments in the Dr. Conrad Murray case. His analysis, as always, is worth a read, but his first point is something we have been harping on for years: DON'T WASTE TIME THANKING THE JURY!

The most dramatic moment of the case arrives. The attorney stands up with his/her case on the line. Those first few minutes of persuasive argument may well swing the jury. Come out with your best points. Make a dramatic statement so powerful that it will ring in the jury's ears long after you've sat down. The jury will never be more ready to hear it than in these first few moments.

And what do most attorneys do? "I want to take a few moments and thank you for your service. It has been a long and hard case and we all know that you've been paying attention and the case is almost over and on behalf of (insert your client here) I want to thank you for blah blah blah blah blah blah blah..."

Here's what Mr. Black says:

If you want to thank the jury do it in the body of the argument not at the beginning. Everyone knows you really don’t mean this. It is condescending and pandering. They know this intuitively. So stop it. It sounds and is phony.

Mr. Black is right. Stop it. Nobody cares and nobody really believes what you're saying. Do you really think the jurors go into the back and say "Well I think the defendant is clearly not guilty but the prosecutor took the time to thank us for our service and the defense attorney didn't so maybe we should teach her a lesson and find her client guilty?"

Dolphins win! Nuff said.

See You In Court.

HE WHO LAUGHS LAST

The Florida Supreme Court says the prosecution should have the last word. If prosecutors need the help because their cases are so weak or their trial skills are lacking, we say give the poor schlumps a fighting chance.

In Federal Court the prosecution has always had the last word at closing argument. The theory behind this is that the prosecution has the burden of proof and therefore should have the last word.

We have often felt that good and solid defense evidence is more than worth losing the rebuttal at closing argument. An experienced defense attorney can handle the prosecution's rebuttal argument in their closing argument by asking questions and challenging the prosecution to answer them. There are other tricks of the trade, so if you are concerned, just ask around.

The real issue here is the Judge (you know- those individuals who leave the courthouse at 2pm lugging a set of golf clubs.)
If the Judge can stop reading the blog during closing argument and pay close attention to the closing argument by the defense attorney, then the Judge can issue (heaven forbid) an intelligent ruling when the defense objects that the prosecution's rebuttal is outside the scope of the Defendant's closing argument.

We have been involved in cases where we have never mentioned one particular piece of evidence, yet over our objections, the Judge has allowed the prosecution to argue the issue during rebuttal. To make this fair, Judges need to be vigilant and keep the prosecution's argument at rebuttal to only issues that the defense argued.

Perhaps this will help our robed readers:

Rebuttal: n 1: the act of refuting by offering a contrary contention or argument.

From: legal-explanations.com : (n) Rebuttal is the negation of a proof, argument, evidence or documents provided in a proceedings by introducing counter evidence.

So as long as our robed readers hold the prosecution to actual rebuttal arguments, we think the prejudice will be negligible.

Do not despair fellow defense attorneys. We win cases all the time in Federal Court and in State Court where we did not have the last word.

Remember: Your goal is to make sure that the very last words uttered by the clerk in reading the jury verdict begins with "NOT".

See You in Court. Sandwiches are fattening anyway. Try salad.