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On the timer

I tried my first murder case thirty years ago. There are two things I vividly remember about it. First, the judge screwed up big time. While my co-counsel, who I'll call Rick, was giving the closing argument, I jotted down the proposed assignments of error we were going to raise on appeal. There were nine of them. We wound up winning six.

The other thing I remember is that I had a lot of time to jot down the proposed assignments of error. An hour into Rick's closing argument, the judge called us up to the bench. "How much longer are you gonna be?" he asked Rick. "You're killing these people."

Me, I would've quickly turned to the jury, said, "Th-th-th-that's all, folks!" and crawled under the trial table. Rick went on for another hour. No deaths among the jury panel were reported, but it was a close thing.

In my last murder trial, this past January, my closing argument was thirty minutes. I felt that was a bit long.

Clarence Darrow wouldn't have. In the Leopold and Loeb case, his summation ran over twelve hours. Of course, when I was growing up, commercials on TV lasted a minute; advertisers nowadays have figured that fifteen seconds is about the maximum attention span for the average viewer. Any lawyer who ventures much beyond the 45-minute mark in closing is running the risk of jurors nodding off, or looking at him with expressions ranging from boredom to open contempt.

Either to protect us from ourselves, or to keep trials moving along, a number of judges have taken to imposing time limitations on closing argument. While limitations on voir dire, also common, don't raise much of a problem, it would seem that putting a timer on closing argument would. Back in Herring v. New York, the Supreme Court held that closing argument for the defense was a "basic element of the adversary factfinding process in a criminal trial." No judge would think of limiting cross-examination to 20 minutes per witness. But, as we find out in last week's 8th District decision in State v. Cowen, limitations on closing present a different story.

Cowen was convicted of raping a 6-year-old boy, and one of the assignments of error was the judge's limiting each side's closing to 30 minutes. The Ohio Supreme Court has held that a judge has discretion to do that, "as long as such limitation is reasonable under the circumstances." Whether it's reasonable depends on five factors: (1) the circumstances of the case, (2) the gravity of the offense, (3) the number of witnesses, (4) the volume of the evidence, and (5) the length of the trial. The panel finds the limitation unreasonable, given the nature of the case, its complexity (five days of testimony, 1000 pages of transcript), and the seriousness of charges (the defendant was sentenced to 25 years to life). Nonetheless, the court finds the error harmless: the time limit didn't impair Cowens' defense because "Cowen's counsel was able to effectively summarize the evidence and present the defense's theory of the case, while criticizing the State's theory, all within the 30-minute time limitation." Well, if he was able to do all that, why was the limitation unreasonable?

This leads me to two observations. First, barring a totally ridiculous limitation, you're never going to win a case on this. The Cowen court cites State v. Moseley, an appeal I handled, where the court similarly found the judge's limitation of 25 minutes unreasonable, but also found the error harmless. (And in that case, the judge had given the State 15 minutes on its opening close and 25 on its final close, while limiting the defense to 25 minutes total.) There's simply no way you're going to show that if you were only given another five minutes, the result would've been different, and that seems to be the analysis the appellate courts will apply.

The second observation is whether this trip is necessary. If you're a judge and your doing this to save time, what's the point? You're talking about saving twenty minutes out of a week-long trial. As for saving us from ourselves, well, I'm a great believer in applying the theory of natural selection to strategies. Rules changes and other factors have made the passing game supreme in football, and coaches who don't adapt to that lose games and get fired, so nobody uses "three yards and a cloud of dust" as an offensive strategy any more. Baseball managers rarely bunt anymore because while playing for one run made sense when games were decided by 3-2 scores, it doesn't make sense when games are decided by 8-5 scores. Attorneys who think that closing argument is their time to bloviate at length either learn not to do that because they keep losing trials, or they stop being trial attorneys because they keep losing trials, and nobody will hire them. You don't need to tell us to keep it short; we'll figure that out on our own, sooner or later.


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