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Closing argument

A judge I have great respect for finds out that some lawyers have taken shots at her on the OACDL listserv for imposing time limitations on oral argument.  The next time she sees me, she calls me into chambers and tells me a story.  A very good lawyer was defending a policeman accused of stealing drugs, and it was a very tough case.  The judge said he had twenty minutes for oral argument.  The lawyer protested mightily, he and the judge went round and round, but she stuck to her guns.  The lawyer gave a closing that lasted 18 minutes and 35 seconds.  His client was acquitted.

I believe her.

The longest closing I ever gave was 50 minutes, and that was in a two-week aggravated murder trial twenty-five years ago.  I doubt I'd do it now.  We live in a society where commercials are now 15 seconds, because advertising agencies know that people aren't going to sit for a 30-second one.  People sit on the couch with the remote clasped firmly in their hands; a TV show has a few seconds to grab their attention, else it's off to the next one.  Arguing much more than twenty or thirty minutes risks the jury tuning out.

And that was the major issue in the 8th District's decision last week in State v. MoseleyMoseley had been convicted of rape, kidnapping, and felonious assault based on the victim's completely uncorroborated account that she had been held hostage by him for 39 days, during which she'd managed to take several pictures of the two of them hugging and confirming the testimony of others that they'd seemed like girlfriend and boyfriend.

I got the appeal, and the first error I assigned was insufficiency and manifest weight.  These are almost sure losers, but if I've got a semblance of an argument on this, I'll lead off with it, figuring that if I can get the court thinking this was a really close case, they'll be much less likely to chalk off any significant error as harmless.  The closeness of the case was further demonstrated by the fact that a Howard charge was necessary.

And I had what I thought was a significant error:  after a week-long trial involving 12 witnesses and 1218 pages of transcript, the trial judge had given the defense 25 minutes to make their closing argument, and the prosecution 40:  25 to open, and 15 to close.  What's more, defense counsel had done a good job of preserving the record, stating near the end of his argument that he'd like to discuss the elements of the crimes, but didn't have the time.  And there's some nice case law on this; about 40 years ago, the 8th in State v. Kay reversed a theft conviction because the judge had allowed only 45 minutes for closing. 

So I win!  The court holds that the limitation here was unreasonable. 

But I lose!  Because it's harmless error.  Why?  Because the defense counsel was so damned good:  he "effectively summarized the evidence and conveyed the defense’s theory all within the time limitation."  Of course, defense counsel might have even more effectively summarized the evidence and conveyed the defense's theory -- sufficiently to, say, get an acquittal -- if he'd had more time.  The opinion effectively counters the point of counsel not having time to argue the elements; as the court rightly notes, "the state’s success on proving the elements came down to whether the jury believed the victim," so arguing the elements wouldn't have made any difference.  On the other hand, the opinion is fairly muddled in its explanation of why the disparity in the time provided the two sides for argument didn't matter. 

So is this sour grapes, or did the court get it wrong?  I'm tempted to think that an unreasonable restriction on closing argument is structural error, but the court does have a point in noting that the Kay court said the error might not have required reversal but for another error, the judge's open bias.  And it may be that the judge I mentioned above is right:  limitations on closing arguments are simply a way of saving the lawyer from himself.

Still, there's a good bit of paternalism in that view.  Jurors can get bored to death with cross-examinations, too, but no judge wouldn't dream of telling lawyers before trial that cross-examinations couldn't exceed 25 minutes.  Of course, that strikes at the heart of the constitutional right of confrontation.  But closing argument is part and parcel of the right to counsel, the right to present a defense.  It can mean the difference between a conviction and an acquittal.   That 50-minute argument I did in the aggravated murder trial?  We talked to the jury afterwards, and that was the difference between a conviction and a hung jury. 

The ability to give a good closing argument is a skill, and an essential one.  Whatever a lawyer thinks he needs to do, within reason, he should be allowed to.  And if an appellate court decides that a limitation on what he was allowed to do was unreasonable, that case should go back.

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