Simpson trial ending at length Nine months later: The O. J. Simpson trial finally is coming to an end. But like everything else in this long-winded trial, even final arguments are to take an extraordinary amount of time -- perhaps a week or longer

Sun Journal

September 26, 1995|By Sandy Banisky | Sandy Banisky,SUN NATIONAL STAFF

Look for drama. Look for Deputy District Attorney Marcia Clark and chief defense attorney Johnnie L. Cochran Jr. to gaze sincerely into the eyes of the jurors. Look for the prosecution to tell a gruesome tale of murder. Look for the defense to mock the evidence.

Don't look at your watch.

The ideal closing argument, law professors and lawyers say, is punchy and short.

"A good argument should be like a good joke," said Paul Bergman, a law professor at the University of California at Los Angeles. "You should be able to tell it in a few words and people should get it."

But the closing arguments scheduled to begin today in the O. J. Simpson trial are expected to last at least through the week.

And so one of the flashiest, and longest, murder trials of the decade drags itself to a finish -- just as it has dragged itself along for the past nine months.

For all the anticipation of great legal theater, lawyers say closing arguments are not as important as opening statements or the presentation of evidence.

Do they change jurors' minds? Rarely, many lawyers say.

Rather, what closing arguments can do is clinch a juror's support.

"If a juror is leaning in one direction, the argument can give him ammunition, let him go into the jury room with more confidence about his position," said Randolph Stone, a University of Chicago law professor and former public defender in Cook County, Ill., and in Washington.

Many trial lawyers say they begin fashioning closing arguments before they start calling witnesses, "long, long before you go to court," said Baltimore defense lawyer Anton J. S. Keating.

Douglas L. Colbert, a University of Maryland law professor, said that "any good lawyer will have most of the closing argument written before trial. You start from the end and you work backward. You have a theory of defense, and that becomes your closing argument."

This is the prosecution's chance to take all the evidence that the jury has sat through and pull it all together so that the facts follow logically. It's the defense's chance to argue that guilt has not been proved beyond a reasonable doubt.

And it's an opportunity for both sides to point up promises the other side made but failed to keep.

"The evidence doesn't come to the jury in a naturally understandable sequence," said James E. Carbine, an attorney with the Baltimore firm of Weinberg and Green, who also co-chairs the American Bar Association's Litigation Section Trial Practice Committee.

"It's presented in bits and pieces. It's out of time sequence.

"It's up to the lawyers to put it together in a way that makes sense," Mr. Carbine said. "Retell the story in a short, succinct way. And then show what your adversary promised to prove but didn't."

"This is the first time for the jury to hear how each side portrays all the evidence," Mr. Colbert said. "There definitely are jurors whose minds aren't made up. They're confused. If the lawyer's doing a good job, they will speak in a clear and easily understood manner.

"Each side will remind the jury of what the other side said it would deliver and didn't," Mr. Colbert said.

"If I were Marcia Clark, I'd argue, 'We did what we promised and they didn't do what they promised,' " said Steven Brill, editor of American Lawyer magazine and founder of Court TV. "If I were Johnnie Cochran, I'd stress reasonable doubt."

The lawyers should strive, Mr. Bergman said, "to leave the jurors with a sense of a story, a narrative that explains how things happened the way you claim they did.

"The prosecution has to create an image in the jurors' minds so they can see how events unfolded," Mr. Bergman said.

How do they plant that image, as they stand, talking, for hours before a jury?

"A good closing argument is a story," Mr. Stone said.

"That means descriptive language, use of visual aids, use of your voice -- speeding up, slowing down, getting loud, getting soft -- pacing. That means using analogies, metaphors, stories, quotations. You should expect drama. The jury's going to expect drama."

Expect the prosecution to deliver a reasoned narrative, the lawyers said. Expect the defense to present its argument with more spirit and drama.

"It's one of the few places in our society where we still have orators," Mr. Bergman said.

The prosecution goes first in opening arguments, to recap its case. And after the defense lawyers speak, the prosecutors are allowed rebuttal, because the government has the burden of proving guilt.

"If I were the prosecution, I would spend a couple hours talking," Mr. Brill said, "then let the defense go on and on and on. And then I'd spend six hours going responding to the defense."

This is no time for stumbling. "You don't want to lose the case in closing arguments," Mr. Stone said. "One thing you don't want to do is create a hole in your case or raise questions that you can't answer, or argue a point that is not significant."

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