Great Opening Statements

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1 Great Opening Statements What follows are examples of great opening statements. These opening statements, civil and criminal, are presented so that you can evaluate their effectiveness, and because they show how powerful an opening statement can be. All of these opening statements were given in real cases. The Oklahoma City Bombing Case (United States of America v. Timothy McVeigh) On April 19, 1995, an explosion ripped the air in downtown Oklahoma City, destroying the Murrah Federal building killing 168 men, women and children. Standing accused were Timothy McVeigh and Terry Nichols. The United States of America was represented by James Hartzler, a very talented United States Attorney. He was specially selected to prosecute this case by the Department of Justice. The case, because of enormous pretrial publicity, was transferred to United States District Court in Denver, Colorado. Hartzler knew the power of a story. Hartzler knew that he had to tell the story of the Oklahoma City Bombing from a sympathetic point of view. He knew that the enormity of the crime might work against him; after all, how could someone plot and plan to blow up an entire building full of people! He recognized that he needed to stir the fires of his jurors early on. He was prepared to present much technical evidence. The FBI manhunt and search for evidence was of astounding proportions. His opponent, Oklahoma s Stephen Jones, an accomplished defense lawyer, was, in part, defending upon a theory that there were two men in the yellow Ryder truck that contained the explosives. Jones would also elaborate a conspiracy theory to dilute the charges against his client, Timothy McVeigh. What follows is an excerpt of Hartzler s opening statement. There were few dry eyes in that courtroom when he said his thank you to the jury. Ladies and gentlemen of the jury, April 19th, 1995, was a beautiful day in Oklahoma City. At least it started out as a beautiful day. The sun was shining. Flowers were blooming. It was springtime in Oklahoma City. Sometime after six o clock that morning, Tevin Garrett s mother woke him up to get him ready for the day. He was only 16 months old. He was a toddler; and as some of you know that have experience with toddlers, he had a keen eye for mischief. He would often pull the cord of her curling iron in the morning, pull it off the counter top until it fell down, often till it fell down on him. That morning, she picked him up and wrestled with him on her bed before she got him dressed. She remembers this morning because that was the last morning of his life. This opening minute grabs us immediately. Why? There are six reasons. First, he begins with a definite date. This is always effective because the audience knows that no one talks about a date unless it is a very important moment in someone s life. Remember how Franklin Delanor Roosevelt began his most famous speech: Yesterday, December 7, 1941 Second, by telling the jurors that the day started out as a beautiful day, and then using sensory language to describe the flowers, springtime, etc., Hartzler accented and foreshadowed what was to come. Anyone listening to this knew that something bad was about to happen. Third, and most important, he began to tell the people story. He is going to tell this story from the viewpoint of Mrs. Helena Garrett, Tevin s mother. Can there be any more sympathetic character than the mother of a 16-month child who is about to lose that child? Fourth, the last line tells us what happened to Tevin. We almost don t want to hear the rest but, just like a novelist, we turn the pages to go from one chapter to the next. Fifth, Hartzler s words describe the child beautifully, toddler, ; she picked him up and wrestled with him, all create distinct and clear mind pictures of mother and child. Finally, we can t wait to know what happened he has piqued our curiosity, and Hartzel knows the best is yet to come. Hartzler has the jury where all good storytellers want the audience. They want to know what happened next? Trial Advocacy II Professor M. Rosen. 1

2 And, Hartzler tells them: That morning, Mrs. Garrett got Tevin and her daughter ready for school and they left the house at about 7:15 to go downtown to Oklahoma City. She had to be at work at eight o clock. Tevin s sister went to kindergarten, and they dropped the little girl off at kindergarten first; and Helena Garrett and Tevin proceeded to downtown Oklahoma City. Usually she parked a little bit distant from her building; but this day, she was running a little bit late, so she decided that she would park in the Murrah Federal Building. She did not work in the Murrah Building. She wasn t even a federal employee. She worked across the street in the General Records Building. She pulled into the lot, the parking lot of the federal building, in order to make it into work on time; and she went upstairs to the second floor with Tevin, because Tevin attended the day-care center on the second floor of the federal building. When she went in, she saw that Chase and Colton Smith were already there, two-years-old and three-years-old. Dominique London was there already. He was just shy of his third birthday. So was Zack Chavez. He had already turned three. When she turned to leave to go to her work, Tevin, as so often happens with small children, cried and clung to her; and then, as you see with children so frequently, they try to help each other. One of the little Coverdale boys there were two of them, Elijah and Aaron the youngest one was two-and-a-half. Elijah came up to Tevin and patted him on the back and comforted him as his mother left. Without embellishing anything, Hartzler has raised the sympathy level up several notches. He has done this simply by reporting details, such as the boy patting Tevin on the back. We ve also met other little children. We can just imagine what happened to them! We would like to have met those children. Hartzler continued: As Helena Garrett left the Murrah Federal Building to go to work across the street, she could look back up at the building; and there was a wall of plate glass windows on the second floor. You can look through those windows and see into the day-care center; and the children would run up to those windows and press their hands and faces to those windows to say good-bye to their parents. And standing on the sidewalk, it was almost as though you can reach up and touch the children there on the second floor. But none of the parents of any of the children that I just mentioned ever touched those children again while they were still alive. Hartzler choreographed this paragraph perfectly. He turned and looked up to the second floor. Imagine him looking up to the second floor at those children. The jurors could imagine seeing the little hands and the little faces of those little children pressing against the window, saying good-bye to their parents. And, you can imagine Hartzler lifting his right hand up to try to touch those children looking through the plate glass window on the second floor. This is magnificent choreography. He is using gestures brilliantly. Hartzler went on: At nine o clock that morning, two things happened almost simultaneously. In the Water Resources Building. That s another building to the west of the Murrah Building across the street. An ordinary legal proceeding began in one of the hearing rooms. And at the same time, in front of the Murrah Building, a large Ryder truck pulled up into a vacant parking space in front of the building and parked right beneath those plate glass windows from the day-care center. What these two separate but almost simultaneous events have in common is that they both involved grievances of some sort. The legal proceeding had to do with water rights. It wasn t a legal proceeding as we are having here, because there was no court reporter. It was a taped recorded proceeding, and you will hear the tape recording of that proceeding. It was an ordinary, everyday-across-america, typical legal proceeding in which one party has a grievance and brings it into court or into a hearing to resolve it, to resolve it not by violence and terror but to resolve it in the same way we are resolving matters here, by constitutional due process. And across the street, the Ryder truck was there also to resolve a grievance. But the truck wasn t there to resolve the grievance by means of due process or by any other democratic means. The truck was there to impose the will of Timothy McVeigh on the rest of America and to do so by premeditated violence and terror, by murdering innocent men, women and children, in hopes of seeing blood flow in the streets of America. This last paragraph employs a cinematic technique called cross-cutting. Hartzler presents the legal proceeding going on Trial Advocacy II Professor M. Rosen. 2

3 in one building, but at the same time the Ryder truck is pulling up not only in front of the Murrah building, but directly under the day care center that we ve already visited, and with his hands, he stops that yellow Ryder truck directly below the second floor day care center. We can visualize that Ryder truck directly below those plate glass windows, the plate glass windows of the day care center on the second floor. You can almost see this being played out as if it was on a movie screen. However, without the choreography, without Hartzler looking up at those windows, and without him visually putting the truck directly below the second floor windows, the impact would have been diminished. So, the lesson is that simple choreography, a simple movement of the hand, a simple glance up to the second floor, has worked wonders. At 9:02 that morning, two minutes after the water rights proceeding began, a catastrophic explosion ripped the air in downtown Oklahoma City. It instantaneously demolished the entire front of the Murrah Building, brought down tons and tons of concrete and metal, dismembered people inside, and it destroyed, forever, scores and scores and scores of lives, lives of innocent Americans: clerks, secretaries, law enforcement officers, credit union employees, citizens applying for Social Security, and little kids. It s happened! He describes the tons and tons of concrete and metal, not just falling down, not just exploding, but dismembering the people inside. He lists the kinds of people inside and, of course, ends with the little kids. What more is there to say? Hartzler probably, with one of his hands, showed the tons and tons of steel, metal and concrete, coming down, down, down. Hartzler has described the incident beautifully. He has used sensory language and has put us just a few feet away from this awful tragedy. Hartzler continued and now, comes the grief. Now comes what we have feared: All the children I mentioned earlier, all of them died, and more; dozens and dozens of other men, women, children, cousins, loved ones, grandparents, grandchildren, ordinary Americans going about their business. And the only reason they died, the only reason that they are no longer with us, no longer with their loved ones, is that they were in a building owned by a government that Timothy McVeigh so hated that with premeditated intent and a well-designed plan that he had developed over months and months before the bombing, he chose to take their innocent lives to serve his twisted purpose. In plain, simple language, it was an act of terror, violence, intended to serve selfish political purpose. The man who committed this act is sitting in this courtroom behind me, and he s the one that committed those murders. After he did so, he fled the scene; and he avoided even damaging his eardrums, because he had earplugs with him. Well, not only has Hartzler characterized McVeigh as a violent terrorist, he has described him as a coward! Earplugs? And can you imagine Hartzler, looking at the jury, pointing his thumb to McVeigh sitting to his rear? Hartzler has totally grabbed the attention of the jury with his story. He has created horrible, nightmarish images in his jurors minds and has stirred their passions, not just for Tevin and all of the scores of children who were killed in that second floor day care center, but has angered his jurors and painted McVeigh as a coward all in a short period of time. After this, Hartzler re-introduced himself and the members of the prosecutorial team to the jury and he detailed the evidence. But, is there any question that the case was over then? Hartzler knew that, in addition to the visual imagery of Tevin Garrett, the other children, the building falling and the yellow truck, the image of McVeigh running away with earplugs in his ears was too good to leave alone. The earplug detail became a recurring theme in Hartzler s opening. McVeigh had earplugs; the victims didn t. That very image comes to play into Hartzler s ending. Hartzler lowered his voice and talked directly to each of his jurors: You will hear evidence in this case that McVeigh liked to consider himself a patriot, someone who could start the second American Revolution. The literature that was in his car when he was arrested included some that quoted statements from the founding fathers and other people who played a part in the American Revolution, people like Patrick Henry and Samuel Adams. McVeigh isolated and took these statements out of context, and he did that to justify his anti-governmental violence. Trial Advocacy II Professor M. Rosen. 3

4 Well, ladies and gentlemen, the statements of our forefathers can never be twisted to justify warfare against innocent children. Our forefathers didn t fight British women and children. They fought other soldiers. They fought them face to face, hand to hand. They didn t plant bombs and run away wearing earplugs. Thank you. What a powerful ending! Was there any question that Hartzler spent many, many hours crafting and rehearsing this opening? Hartzler used his themes and used them repeatedly throughout his opening. And he chose the visual of McVeigh with his earplugs running away, as the visual to end his opening. Rage, anger, sadness, cowardess are great themes for this case. The Oklahoma City Bombing Case (United States of America vs. Terry Nichols) Terry Nichols was not there Terry Nichols was building a life, not a bomb. With a few simple words, the schoolteacher from Washington, DC, Michael Tigar, began his defense of Terry Nichols, probably the second most reviled criminal defendant in the history of the American legal system. The United States of America charged that Terry Nichols conspired with Timothy McVeigh to bring down the Murrah Federal Building in Oklahoma City on April 19, Many other charges were added to the main charge. However, with just 14 words, Michael Tigar, master trial lawyer and teacher of advocacy, set a standard for the exquisitely powerful and persuasive opening statement. In a heartbeat, he involved the jurors in the life of Terry Nichols. Immediately, the jury was compelled to think about Terry Nichols, the person, and about why Nichols was not in Oklahoma City on the 19th morning of April, 1995 at 9:02 a.m. The jury was compelled, in the first minute, to listen to Terry Nichols plea. Michael Tigar knows that a powerful and persuasive opening statement must provide the jury with three things: 1.) The Will, 2.) The Way and 3.) The Why to rule for his client and his cause. Tigar knows that the opening statement is that critical first step in the persuasive process. Tigar also practices what he preaches. He preaches that the powerful opening statement must drop the jury directly into the life of his client, must move them to look at the case from his client s point of view, must motivate the jury to care about his client and must simplify what was a complex and difficult case to its core essentials. As we listen to his opening, listen as his words develop the theme and explain why it makes sense. Feel him begin to plant the seeds of the hundreds of reasonable doubts he finds in the prosecution s evidence. But, most of all, sense how this master advocate identifies and embraces his jurors by describing the Oklahoma City Bombing as an explosion as quick has a heartbeat and a sadness as long as life. This marvelous opening infuses the will, shows the way and offers the why. Mike Tigar is a master weaver of facts, stories and words. He builds drama into his tale and weaves truths into a classic conflict between an innocent man building a life and a government determined to convict someone, anyone, of the crime. Tigar ties those facts into his theme, making it all so simple and so memorable with his anchor phrases, not there, building a life. Count how many times Tigar tells us that Terry Nichols was not there. Michael Tigar is a an honest, caring person. He proves this to the jury by demonstrating sensitivity and compassion. To the living, we owe respect, to the dead, we owe the truth. But he also tells us that we are about to (and must) gain respect for the undeniable fact that all Americans are presumed innocent. He exposes the hundreds of reasonable doubts that lurk in the evidence. Tigar juxtaposes those doubts against details of the real life drama of Terry Nichols the man, the husband, and the father. Tigar artfully contrasts this compelling, but seemingly every-day story with the hundreds of doubts about the government s evidence, the Federal Bureau of Investigation s motives and its so-called experts and, of course, the government s key witness, turncoat Michael Fortier. He plants in our minds that, because of the FBI s sloppy work, the government has rushed to a very wrong and quite early judgment. Imagine the faces, the eyes of these jurors, as this tall, slightly rumpled teacher begins one of the most difficult classes he has ever been asked to teach. You can hear him express his steady sincerity. You can feel him involve those jurors with his passion for the young man who was building a life in Kansas, not a bomb in Oklahoma City. You can almost see Michael Tigar settling in before that jury. Hear him smile. Feel his calmness, watch for the humanity he reveals. Listen as he repeats his theme words and challenges his jurors. Watch as he takes them along Trial Advocacy II Professor M. Rosen. 4

5 with him on the journey through Terry Nichols life. A truly great opening statement can indeed be seen while it is being heard. This is a classic example of word pictures, a world created by language, storytelling at its best. It is literally as good as it gets in our profession. Tigar uses no props, no exhibits, no tangible objects to illustrate his opening statement not even his tool of trade the chalkboard. He humanizes his client, dramatizes his plight, and removes the obstacles between Nichols and the verdict he wants this jury to return. He weaves the hundreds of reasonable doubts into a simple but captivating opening. In short, this opening has it all: an emotional story, simple themes, easy-to-remember anchors. It has an elegantly stated point of view, it teaches, it guides, it cajoles, it argues and it persuades. It is time to go to that courtroom in Denver, Colorado. Let s learn and enjoy as one of America s finest advocates communicates with a modern American jury about an abominable act of terrorism perpetrated on innocent men, women and children. The bell has rung, the teacher is ready. Michael Tigar rises: May it please the court, Mr. Nichols, members of the jury, on the 19th morning of April at 9:02 in the morning, or actually just a few minutes before, Timothy McVeigh parked in front of the Murrah Building in Oklahoma City. He was in a Ford F-700 truck from Ryder rentals with a 20-foot box. And Timothy McVeigh was not alone. With him in the cab of that truck were one or two other people. The driver parked the truck and set the bomb to go off. Terry Nichols was not there. Terry Nichols did not know about the bombing until the next day. He was at home in Herington, Kansas, at 109 South 2d Street in a house he d bought and moved into one month and six days before. He was at home. With him there were his pregnant wife, Marife; their infant daughter, Nicole. Terry Nichols was building a life, not a bomb. My name is Michael Tigar; and with our team, I represent Terry Nichols. We re here to gain respect for the undeniable fact that right now Terry Nichols is presumed innocent. We re here to help point out the hundreds of reasonable doubts that lurk in the evidence. Can you see my hand? You can t see my hand. Not until I ve turned it over and showed you both sides could you say that you ve seen my hand. And just as in life, the last bit of evidence about an important thing may be the thing that lights up the whole picture, so we beg you to have open minds. We ll present evidence to you, beginning with our cross-examination of the very first witnesses that take the witness stand; but for the first few weeks of the trial, the Government has the choice of what witnesses to bring, what evidence to bring. He that pleadeth his cause first seemeth just, but the defendant come and searcheth it out. Over and over again, you re going to hear about the presumption of innocence. That means we start with a clean page. That means that suspicion, prejudice, prejudgment, speculation have no place. Second, Ron Woods and I are going to tell you about Terry Lynn Nichols, born and raised in a farming community, married, the father of three children. Ron will tell you about what happened when Terry Nichols first heard on the radio that he was being sought as somebody who knew Timothy McVeigh, how he went right to the police station and spent nine-and-a-half hours telling the truth yes, the truth to the FBI, even as the FBI agents lied to him, lied to his family, and lied to the court. And third, I m going to talk very briefly about the FBI and its laboratory, its so-called experts, some of whom are going to testify here, how those people ignored vital evidence, used junk science, did sloppy fieldwork, and rushed to a very wrong and quite early judgment. So who s on the Nichols team? Well, the first member is Terry Nichols. Me, I m Michael Tigar; and I am a school teacher. I teach at the University of Texas in Austin, Texas. Ron Woods former Special Agent of the FBI. There he is. Terry Nichols living at 109 South 2d Street in Kansas, presumed innocent, living in that house he just bought on a 15-year contract, printing business cards in his own name, receipts for the taxes he had paid, picks, shovels, ammo cans, nails, and arms for sure; yes, for things to sell at gun shows, in his shed. Oh, and ammonium nitrate: Yes, he bought a bag of ammonium nitrate. And in his shed are hundreds of little plastic bottles with labels so he could repackage this fertilizer and sell it for about five or ten times what he paid for it. And you ll see the labels and the little plant food jars, and you ll see how he ground it up to put it in the little jars. He was building a life, not a bomb. This trial, as you can see perhaps from the length of these statements, is a long journey. It is a journey we will take together. And over and over again, Judge Matsch will tell us not to make up our minds till the journey is done, for we all know at times at the close of the day, when the sun s last rays illuminate something that we just hadn t noticed before, you may find the reasonable doubt in that Trial Advocacy II Professor M. Rosen. 5

6 last bit of evidence. And when the journey is over, we ll stand before you and ask you for a verdict of not guilty. Because Terry Nichols was home, building a life, not a bomb. Terry Nichols was not there. For now and into the journey, we bid you well. Well, he did it. His simple theme Terry Nichols was not there, Terry Nichols was building a life, not a bomb, was supported, according to Tigar, by the evidence. He attacks the FBI, and plants the seeds to argue in his closing argument, that the government can t handle the truth, that the Marine Corps builds men, the FBI builds witnesses, and, finally, Terry Nichols was not there. He tells the people story from the perspective of Terry Nichols, his wife, his children, and makes a compelling argument, in the beginning, that Michael Fortier is, truly, the villain here. Results speak for themselves. Nichols was convicted of the lesser charges, but was acquitted on the main conspiracy charge. The O.J. Simpson Civil Case California s Daniel Petrocelli represented Fred Goldman in the civil suit, arising out of the deaths of Nicole Brown Simpson and Ronald Goldman. Fred Goldman s son, Ron, was stabbed to death, along with Nicole Brown Simpson, on June 12, Petrocelli was facing the acquittal of O.J. Simpson, an American icon, on the criminal charge of murdering Ron Goldman and Nicole Brown Simpson. Everyone knew about that acquittal. After all, Mr. Simpson was defended by the dream team and every day of that proceeding was televised. Petrocelli, although he may have had a more favorable jury, knew that he had to overcome large obstacles in convincing a jury that O.J. Simpson killed both Ron Goldman and Nicole Brown Simpson in a fit of rage. Petrocelli decided to have his jury see the murders from the eyes of the young victim, Ron Goldman. He paints Ron Goldman as a sympathetic person, and, we can almost see with mind pictures what Ron Goldman saw through his open eyes. Petrocelli begins: On a June evening, the 12th of June, 1994, Nicole Brown Simpson just finished putting her ten-year-old daughter, Sydney, and her six-year-old son, Justin, down to bed. She filled her bathtub with water. She lit some candles, began to get ready to take a bath and relax for the evening. The phone rang. It was 9:40 p.m. Nicole answered. And it was her mother, saying that she had left her glasses at the restaurant nearby in Brentwood, where the family had all celebrated Sydney s dance recital over dinner, just an hour before. Nicole s mother asked if Nicole could please pick up her glasses from the restaurant the next day. Nicole said, of course, good-bye, and hung up. Nicole then called the restaurant and asked to speak to a friendly young waiter there. Nicole asked this young waiter if he would be kind enough to drop her mother s glasses off. The young man obliged and said he would drop the glasses off shortly after work, on his way to meet his friend in Marina Del Rey. The young man s name was Ron Goldman. He was 25 years old. He might have run from danger, but he did not. Ron Goldman died, ladies and gentlemen, with his eyes open. And in the last furious moment of his life, Ron saw through those open eyes the person who killed his friend Nicole. And for that reason, he too had to die. And the last person Ron Goldman saw through his open eyes was the man who took his young life away: The man who now sits in this courtroom, the defendant, Orenthal James Simpson. Ladies and gentlemen, we will prove to you that Ronald Lyle Goldman and Nicole Brown Simpson died at the hands of the defendant, Orenthal Simpson. What a powerful beginning! Ron Goldman is portrayed heroically, and, the jurors did indeed see the awful deed from the eyes of the dying young man. Look at how Petrocelli used drama. Look at the simple sentences. Look at how he, with sensory language, characterized Ron Goldman: He might have run from the danger, but he did not ; He died with his eyes open. Petrocelli then tells the jury what he will prove. He did not list a series of the evidence will shows, nor did he recite a witness by witness description of what the evidence will be. Only at this point does Petrocelli pause to introduce himself and his team to the jury. He does so briefly, and tells the jury that they will present an extraordinary amount of evidence undeniable pointing to O.J. Simpson as the person who killed Ronald Goldman and Nicole Brown Simpson on the evening of June 12th. He then, recounts, in a staccato fashion, what the evidence is. Trial Advocacy II Professor M. Rosen. 6

7 Mr. Simpson s blood leaving the scene of the murder at Nicole s condominium; His blood dripping to the ground from the fingers of his left hand; Mr. Simpson s blood on the glove he wore when he killed Ron and Nicole; Mr. Simpson s blood in his car that he used to drive from Bundy to his home at Rockingham, five minutes away; Mr. Simpson s blood on the driveway of his home; Mr. Simpson s blood inside his home; Ron s blood in Mr. Simpson s car; Nicole s blood in Mr. Simpson s car; Ron s blood on Mr. Simpson s glove; Nicole s blood on Mr. Simpson s glove And so on. This is an effective mode of arguing without arguing. Petrocelli is telling the jury what his side will present, but the list has the effect of giving the impression of an overwhelming case. Petrocelli then spends the rest of his statement detailing various evidentiary contentions. He comes to the conclusion of his statement and speaks about damages, concluding: To award damages. Now, how does one do that? In a case like this, what we are required to do and will do under the law is we will present evidence to you. You ll have Mr. Goldman take the stand and he will testify about his relationship with his son. And then your job will be to listen to that evidence, listen to the kind of relationship that he had, make a determination as to the nature and quality of that relationship and what that loss meant to Fred. And you will be asked to award damages in an amount that could compensate him. Of course, no amount could compensate him for losing his son, but that s what we do in cases like this. At the end of this trial, I will not stand before you and presume to give you any kind of a number. I will not give you any kind of an amount. You will hear Mr. Goldman talk about his son and the life they had together and the life that they will no longer have together and it will be up to you to do what is just. And that s about all you re going to hear about from me right now. Thank you very much. Petrocelli puts himself on the line. He uses the word I all through his opening. And, his description of the evidence is almost poetic. His repetition of the word blood in various places, both Simpson s blood and Ron and Nicole s blood, creates an undeniable trail for the jurors to follow. So, in a short opening, he dramatized the horrible events of that night, humanized the case by telling the story from the perspective of Ron Goldman and organized the opening statement around the theme that Ron Goldman was a hero he was the man who would not run from danger, he was the young man who tried to defend Nicole Brown Simpson. Petrocelli put all of the elements of the a great opening statement into a rather short opening. The results, again, spoke for themselves. The jury answered loudly and clearly that O.J. Simpson was, indeed responsible. A Closed Head Injury Case Denise and John Smith were a unique couple. They enjoyed the company of each other 24 hours a day. They were not only partners in marriage, but were partners professionally. They owned a small copying business, and, with their two young boys, were making a good income. All of that came to an end on a bright and beautiful Saturday morning. Denise was driving her sister s SUV with her mother and sister as passengers on the interstate to a small city 90 minutes away to buy some baby clothes for Denise s sister. Midway on their trip, the SUV was rear-ended. The SUV went up the guardrail and then flipped over three times. The SUV s roof was crushed a little bit more each time as the SUV rolled over onto its roof. The ambulance came and Denise was taken to the hospital. She was hospitalized only five days with a diagnosis of a mild traumatic brain injury and concussion. Denise stayed home for approximately seven months, but had difficulty with balance, memory and her husband, children and relatives noticed that her personality had changed. She was a different person. Her physicians, however, pronounced her cured after approximately seven months. A year later, still having difficulty with memory, concentration and attention, and having difficulty dealing with her personal life, she was sent to a neuropsychiatrist who diagnosed a post-concussion syndrome. She had suffered a classic closed head injury and, was one of the 10 or 15% of those who, although suffering a mild traumatic brain injury, suffer permanent damage to the brain as a result of the movement of the brain back and Trial Advocacy II Professor M. Rosen. 7

8 forth. There was no medical controversy that she had suffered a concussion; however, although her physicians were convinced that she has sustained a basilar skull fracture, that fracture could not be seen on x-ray, CT scan, or even with an MRI. In short, this case presented the classic closed head injury that appeared to be a minimal injury. Anyone looking at Denise would think she was perfectly normal. However, she was a different person than she was one minute before her accident. The case is at trial. The defense claims that the mild injury has left her with no residual problems. The defense will present videos of vacations taken after the accident, which show what appears to be a happy, smiling Denise. The task for the plaintiff lawyer, is to help the jurors see this accident from a different perspective. An expert will testify that the force of at least 400 lbs. per square inch was necessary to fracture her skull and, that, as a result of that force, her brain was pushed around in its case, and damaged in two places. Plaintiff s counsel rises to give the opening: May it please the court, counsel, Mr. and Mrs. Smith. July 22, 2000 was a great day. The sun was shining in South Louisiana, the sky was blue, the clouds were puffy and white on the interstate leading from New Orleans to Baton Rouge. If you had been a bird flying over Interstate 10 at LaPlace, Louisiana, you would have seen a Ford Expedition driving along the interstate at the speed limit of 60 miles per hour. If that bird looked into the Ford, he would see Denise Smith driving. Seatbelt on, watching the road. Next to her, her sister. Behind her, her mother. At 9:08 a.m., a pick up truck rear-ended the Expedition. The truck pushed the Expedition up onto the guard rail with such a force that the SUV rolled over once, twice, three times. The SUV landed with the force of at least a 400 lb. sledge hammer. At this point, the plaintiff s lawyer took a scale model of a Ford Expedition and rolled it over in front of the jury box three times saying down and around, down and around, down and around, and then slammed the SUV onto the table in front of the jury box, mimicking the 400 lb. sledge hammer. In the Expedition, Helen, Denise s sister, heard Denise say, Oh God, please God, take care of my children. From the back, Denise s mother tugged at her hair, screaming Denise, Denise, are you alright, but Denise could say nothing. Denise was unconscious. The state police arrived, and, with the jaws of life, got her out of the SUV. The EMT arrived and so did the ambulance. Denise was unconscious for a short period of time and remembers very little details of the accident except the pounding from the rear. The next thing she remembers is the EMT talking to her. Members of the jury, that 400 lb. sledge hammer fractured Denise s skull. That 400 lb. sledge hammer caused a frontal basilar skull fracture, a fracture to the thickest part of the skull. That force was so heavy, so hard and so dangerous, that it sent shock waves through every part of her brain, caused her eyes to bleed, shook her brain violently causing injury to two parts of her brain, traveled through her ear canals, causing damage to the inner ear affecting her balance and her hearing, and then that force tried to get out of her skull, but the skull held it in. Her brain hit back and forth, back and forth, against the inside of her skull until the force was dissipated. Members of the jury, the evidence of all of this is the huge hematoma that covered the top of Denise s head. That hematoma is evidence of the 400 lb. sledge hammer. Members of the jury, from that day on, life for Denise and John has never been the same. That s why, members of the jury, this is a case about three things: a traumatic brain injury, a concussion, and a post-concussion syndrome, PCS. This is a case about the PCS that has changed Denise s life, changed her personality, damaged Denise s marriage and has left her a disabled person. A person who cannot remember what she said 15 minutes ago, a person whose life is full of yellow stickies, stickies that tell her things like, don t forget to pick up your kids, don t forget to call John, don t forget to cook, don t forget to go to work tomorrow, don t forget your son s school s address, don t forget to change your clothes. The 400 lb. sledge hammer is a good mind picture. That s why I used those words. I knew the neurosurgeon who testified would say at least 400 lbs. per square inch of force was necessary to cause the skull fracture. Understatement is a good tool. How to convey the force of that 400 lb. sledge hammer to the jury and how to compare that force with the human brain? Typical trial anatomy models of the brain are solid. They are made of plastic. In this case, I knew I would use a Jello brain, that is, a full size brain made from a specially constructed Jello that mimicked, very closely, the color, and most of all, the texture, the softness, the delicateness, of the human brain. Trial Advocacy II Professor M. Rosen. 8

9 But you don t know Denise. You didn t know her before you walked into this courtroom today. What can I give you to show you the difference in her? Well, I will bring before you and put on that witness stand, witnesses. Not just family members, but friends and even business acquaintances who will tell you the difference between the Denise before, and the Denise after. They will tell you in their own words how different she is, how her mind and even her soul is affected. They will tell you that she is a sad person, a confused person, a challenged person but a person who has been fighting from day one to get back on her feet. You will learn that Denise went back to the family business, but, unfortunately, because of that TBI, and the PCS, the post concussion syndrome that followed, this young woman, before, a meticulous person who prided herself in her bookkeeping, in her precision, in her accuracy, especially in mathematics, finds herself with the mathematical ability of a retarded person. But, she fights on. She has attempted to be the mother she was to her children before this accident, and you will see and hear what they have done to adjust their life, a life that is full of doubt, concern, and, yes, even pain. But what will you hear from the other side? What will that insurance company tell you? Their own insurance company, the insurance company they depended on to take care of her in the event of an accident? Well, as you know from our conversations during the voir dire selection process, that insurance company refuses to acknowledge the injury. That insurance company s words are deny, deny, deny. They even denied the accident happenedbut, just before you arrived here in this courtroom, agreed that Denise suffered an accident, that she was totally faultless, and that the only thing you will decide is what compensation can bring her back to normal. But, of course, you know already, that she can t be brought back to the Denise she was before the accident. That insurance company will take advantage of that fact. They will want you to ignore the before Denise, and only focus on the after Denise. That s not right, and we will not let them do that. They will show you vacation videos of the family in an attempt to convince you that all is well, life is as it was before July 22, 2000, when that 400 lb. sledge hammer hit her head. We will show you why their case is nothing more than an excuse, an excuse to trick you into believing that the after Denise is the same as the before Denise. Members of the jury, as I told you when we talked in the jury selection process, I will ask you for full justice in this case. Not a penny less than that amount that will compensate Denise and John for Denise s injury, and John s suffering, but not a penny more. I look forward at the end of this case to standing in front of you and asking you for a just and a fair verdict. Members of the jury, the after Denise is much different than the before Denise. I am looking forward to revealing to you Denise before and after. I know that you will listen. I look forward to presenting the evidence. Members of the jury, this is a straightforward case. That 400 lb. sledge hammer caused the TBI, that traumatic brain injury, that traumatic brain injury caused a concussion, that concussion caused the PCS, the post concussion syndrome. That s all there is to it. Thank you very much. The jury agreed. The jury rejected the insurance company s premise that the injury was a minor one. The second Tyco trial (State of New York v. Dennis Kozlowski and Mark Swartz) The first decade of the 21st Century saw federal and state prosecutors indict and bring to trial executives of major corporations. One of the most famous and most unusual trials was the Tyco trial conducted in New York state court by Manhattan District Attorney Robert M. Morganthau. The first trial of Dennis Kozlowski, Tycos former CEO and Mark Swartz, on multiple counts of grand larceny, conspiracy, falsifying business records and securities fraud ended in a mistrial. Most courtroom observers thought that the first trial was a courtroom circus, an unfocused rambling trial. The second trial was less of a circus than the first one. The second trial, however, like the first, featured weeks of testimony about what the defendants received in the forms of bonuses, loans and perks. But, there was little question about what they got; all the serious questions were about whether the companys rules authorized what was given to these corporate executives. The prosecutor knew that many board members had testified in the first trial that they had no intention of paying certain bonuses or permitting the company to buy Kozlowski multi-million dollar homes as it did. The jury apparently believed the board members and disbelieved Kozlowski and Swartz, both of whom testified. There is also very little question that some, even all of the disputed payments were not mentioned in the Tyco board minutes. But neither were many of the undisputed bonuses. Trial Advocacy II Professor M. Rosen. 9

10 The record keeping at Tyco was pretty loose. But the indictment was looser still and the charge of larceny for accepting payments from a company when the payments were recorded on the books is all but unprecedented. Some of the larceny charges were even premised on loans that were repaid. In one case, the defendant did not pay taxes on the money the jury said they stole, but in the other cases the taxes were paid. The securities fraud charges were never even vaguely specified. Although the Manhattan district attorney alleged many deceptions, they never spelled out that the deception supposedly inflated Tycos share price. The defendants argued that whatever the board members said they recalled about what they did (or failed to do), contracts and by-laws, all enshrining massive payouts for performance, that governed the companys actions, entitled Kozlowski and Swartz to the hundreds of millions of dollars in payouts, just pieces of which the Manhattan District Attorney said were stolen. The second trials opening statement was more focused and more in line with what the jury needed. The following is a short excerpt of the beginning of the opening. It certainly can be considered an opening statement worthy of study. Members of the jury. This case is a story about two men the defendants in this case, who stole $150 million from a company named Tyco and from that corporations owners and shareholders. These defendants ran Tyco but they did not own Tyco. These men engaged in a process of instruction, deception and concealment. They were too smart to shred anything or erase anything. The defendants controlled the flow of information to the members of the Board of Directors who were only part-timers. The prosecutor boiled the case down to three words: instruction, deception and concealment. Three simple words the jury can always return to. During the trial, the prosecutor kept repeating these words. The prosecutor also told the story from the viewpoint of the real victims, the owners and the shareholders. The defendants didn t steal the money from the company they stole it from the owners and the shareholders. The prosecutor also succinctly summarized corporate law by suggesting to the jury that these officers, although they ran Tyco, did not own Tyco. The prosecutor made sure that that principle stuck with the jurors the prosecutor repeated that phrase many times in the opening statement and during the trial. The prosecutor used to the states advantage the fact brought out by the defense in the first trial that no documents were shred, no s were deleted, no documents were destroyed. Wisely, the prosecutors integrated a weakness in their case into their story and used it to their advantage. They took a defense argument away. Failing to destroy documents is now part of the crime. That was a smart tactic on the part of the prosecutors. Finally, the prosecutor answered some of the questions that the jurors in the first trial found disconcerting. That is, how can these defendants be guilty if the Board of Directors knew what was happening. The prosecutor calls them part-timers to help the jury decide the case. The jurys verdict came after 11 days, about the same amount of time the last jury deliberated without reaching a verdict. The verdict is a clear win for the Manhattan District Attorney, Robert M. Morganthau, who at age 85 is running for re-election. The prosecutor, in the second trial, focused less on Kozlowskis conspicuous consumption the $2 million party in Sardinia, the $15,000 umbrella stand, the multi-million dollar artworks. The first jury, although surprised by this enormity of Kozlowskis appetite for material things and his greed, did not give much weight to this evidence. The May Department Store Trial St. Louis, Missouri The May Department Store Company, a long time St. Louis company, found itself in litigation with a neighboring lawyer. The May Company built a garage for its downtown store next to a building known as the Randall building, a building built back in 1910 in downtown St. Louis. Photographs from 1961 reveal a building so close to the Randall building that no exit from that side of the building was possible. In fact, before 1962, there was no basement exit or fourth floor exit on that side of the building. The May Company built the garage to the edge of its property line, right up against the east wall of the Randall building. This meant that there was now an open area next to the basement of the Randall building. Luckily for Randall, the garage had a stairwell from the basement to the top floor. And that stairwell was located along the wall of the garage next to the Randall building. The owners of the Randall building recognized an opportunity and asked the May Company if they could construct a second exit from a restaurant in their basement into the stairwell of Mays garage. May said yes, so the owners and the May Company made a deal, a license agreement. The agreement gave the owners of the Randall Trial Advocacy II Professor M. Rosen. 10

11 building permission to use the garage stairwell as an emergency exit from the basement of the Randall building. In return, May received the right to advertise on the south wall of the building. The deal did not give the owner of the Randall building permanent rights to use the stairwell in the garage. The deal between the parties expired in March, That was the 1962 deal. In 1976, an attorney purchased the building. The 1962 deal was part of what the attorney bought so he could use the basement exit into the stairwell of Mays garage. The new purchaser, a workmens compensation attorney, knew that the 1962 deal expired in March, He knew that the deal placed no obligation on May to renew it. However, the new owner wanted to use the fourth floor for a part-time residence. But, he believed he needed a second fire exit to do so. The new owner came to May and asked if May would grant him permission to have an emergency exit from the fourth floor of the building into the stairwell of the garage. May said yes. May and the owner made a deal; they signed a written contract in the form of a second license agreement. This deal also expired on March 31, 2000, the same as the 1962 contract. May received nothing for it. And, although not required, May even agreed to pay the cost of constructing the doorway through its garage wall. During the negotiations, the attorney asked for a permanent right to use the exit into Mays garage, but May would not agree to that. May didn t want to tie its hands. So the attorney-owner knew he would not have the deal forever. He knew that both deals expired in March, The owner also asked May for permission to tap into Mays private waterline in its garage. He wanted to use Mays water as a source of water for the new fire sprinkler system he installed in the basement of the building. Although not obligated to do so, May also permitted the owner to tap into Mays water. So, if a fire broke out in the basement, his sprinkler system would go off using Mays water. Without Mays help, the owner could never have converted the top floors into a part-time residence because of zoning and safety requirements. In March, 2000, the licensing agreements for the fire exits expired. Three months earlier, May wrote the attorney-owner telling him that the deal was about to expire and May was not interested in renewing it. A month later, May gave notice it would cancel the water agreement. The owner reacted by walking into Mays executive suite demanding to speak to a corporate officer. May agreed to renew the owners deal for a fee. The building owner responded no, not a dime. He slammed the door shut on negotiations. The owner claimed he had a right to use, forever, the stairwells and the water, even though his deal had expired. He didn t want to pay. But May tried to be even fairer. May offered to buy his building. The building owner stonewalled and would not negotiate. May was concerned that the owners claim of a right to use Mays garage and water would put them in the serious position of losing the right to control their own garage. May had to protect its property. May had other concerns. After the licenses expired, the owner no longer had the obligation to protect May from any accidents occurring in the garage. The reality of this was brought home when in October, 2001, the City of St. Louis discovered the water line was turned off and May feared it might be liable if a fire broke out in a restaurant in the owners buildings basement. Letters to the owner didn t work. So May put up a no trespassing sign, one attached to the owners wall. That didn t work either. The owner turned around and complained that May was trespassing on its property. May began the process of obtaining from the City of St. Louis permits to seal the exits and cut off the water. But, May tried to be fair. May held up all of this to give the owner time to make other arrangements, but the owner never did. The owner turned down several alternatives. On March 11, 2002, May cut off the water and in April, sealed the exits. The owner sued May. Ron Dolan of May delivered the opening statement. He knew his challenge was to make a fairly complicated commercial facts situation palatable to a federal jury in St. Louis. He also understood that the May Company had been a longtime, well-respected citizen of St. Louis. Long after other companies moved to the suburbs, May stayed in downtown St. Louis. Ron also knew that he needed to communicate to the jury viscerally and visually. Ron delivered the opening statement in the United States District Court for the District of Missouri. Ladies and Gentlemen of the Jury. This is a case about ingratitude and getting something for nothing. This is also a case about not taking responsibility. I say ingratitude because Mr. Smith bought an impaired Trial Advocacy II Professor M. Rosen. 11

12 building; he couldnt use it the way he wanted to use it without help from May, which owns the garage next to Smiths building. So he came to May, his neighbor, and asked for help. May I use your garage for a fire exit? May said yes, you may use it for 20 years free of charge. May I use your water? May said sure, until we tell you differently, also free of charge. And how did the ungrateful Smith thank May? At the end of 20 years, he claimed a right to use Mays stairwells forever. And he claimed the right to Mays water, forever. When May said that wasnt ideal, he sued May. Proving, no good deed goes unpunished. But there is more. Smith wants the right to use the exits and the water in the garage without paying for it. And he wants to do this forever. He wants something for nothing. To fix his problem. Members of the jury, we will show that its time for Mr. Smith to take responsibility for his own problem, not look to May to solve his problems with his building. After Ron established his themes, he went into a brief background using a good visual to keep the facts straight. Ron then ended his opening statement with a call to action. At the end of this trial, when His Honor tells you what the law is, and when you have heard the evidence we will present to you, we will ask you to tell him, enough is enough. You have to pay for what you want. Its time to stop getting something for nothing from the people of May. Thank you and we look forward to presenting our case to you. May Department Stores prevailed in this case. Many of the jurors told Mays counsel that they thought that the opening statement set the tone and convinced them in the beginning that May should win this case. The May lawyer used many of the principles set forth in this book. He boiled his case down to a simple story. He unified his case with a simple theme, and then boiled the case and the theme down to three simple concepts and then reduced even those concepts to some simple words that jurors hear all of the time. The Michael Jackson Trial Michael Jackson was indicted in 2004 on numerous charges of sexual molestation. The prosecutor, district attorney Tom Sneddon, tried most of the case. Michael Jacksons defense counsel, Thomas Mesereau, a masterful trial lawyer, defended Michael Jackson brilliantly. The prosecutor attempted to use Michael Jacksons status as an international rock star to his advantage. Ladies and Gentlemen of the jury. On February the 3rd of 2003, Michael Jacksons, the defendant in this case, world was rocked. And it didn t rock in a musical sense. It rocked in a real life sense. On that date, Martin Bashirs documentary Living with Michael Jackson, aired in England, immediately creating a fire storm over his admission that he shared his bed with boys to whom he was unrelated. An associate of Michael Jackson described the fall out from the Bashir production as a train wreck. The case against Jackson is about the manipulation of a young boys adolescence through exposing him to strange sexual behavior and introducing him to sexually graphic adult magazines. The child, a 13-year old cancer survivor, was exploited in part, because he was estranged from his father. Sneddon then used Jacksons well-known liking for entertaining young children to his advantage. He continued. Michael Jackson was a man who has a long-standing custom and habit of sharing his bedroom and his bed with young boys. Michael Jacksons victim in this case refers to him as daddy. Trial Advocacy II Professor M. Rosen. 12

13 Sneddon told the jurors that the accuser and the accusers family were viewed as a loose end that needed to be contained and isolated by the Jackson camp. He told the jury that the Jackson people were planning a rebuttal video to the Bashir production. In a bid to secure an interview with the family for the rebuttal program, Jackson and his aids used logic, reason and appeals to trust, but when these approaches failed, Sneddon said, They got the interview through extortion. Sneddon moved into a description of Jacksons home, describing it not as a place for children, but a place of horror. Michael Jacksons estate has been used for beautiful causes. For the children, the underprivileged children, for the children who have been suffering, who have been brought there to share a day or weekend at the Neverland Ranch. It is something very good. However, just like so many things in life, something very good can end up being, on other occasions, in another setting, something very bad. Sneddon then described the estate as a childrens wonderland, with its amusement park, zoo and go-cart track. He also told of a secret wine cellar, the entrance to which is hidden behind a jukebox in the main building where Jacksons special guests were entertained. He told the jury that sexually explicit magazines were found laying by the tub in Jacksons private bathroom. He then described the testimony to be given by the accuser and the accusers brother. Thomas Mesereau knew he had a difficult case and very unique client. After noting that it was an honor to represent Michael Jackson, Thomas Mesereau told the jurors: I am here to tell you these charges are fictitious. They are bogus. They never happened. They are fake, silly and ridiculous. Mesereau told the jury about the victims mothers attempt to extort money from high profile celebrities like Mike Tyson and Adam Sandler. He launched into a biographical sketch of Jackson and his creation of the Neverland Ranch, a place where Jackson always enjoyed the childhood spoils he never had while a young man. Mesereau painted Michael Jackson as coming from a difficult childhood, a childhood devoid of childhood experiences, a sympathetic figure exploited by many. Countering Sneddons assertion that Jacksons estate was a den of iniquity, Mesereau told the jurors: We will prove that Neverland is not a haven for criminal acts, a lure for molestation, a magnet for crime. In describing the help that Jackson provided when his accuser was ill, Mesereau said that the performed asked the boy to envision white blood cells playing Pac Man and the cancer cells are being gobbled up by the good people. Michael had gotten that from studies of visualization techniques that were perfected in England years ago for cancer patients. Mesereau described the accusers mother as a shake-down artist who used her son as bait, a woman who coached her kids to lie in connection with an assault lawsuit the family brought against J. C. Penney. Mesereau told the jurors that after the Bashir documentary aired, the mother was expecting a big payday in return for her childrens participation in the Jackson rebuttal video. However, when an opportunity to cash in never materialized, Mesereau said the molestation accusations surfaced, and the family went to a lawyer, then another lawyer, and then still another lawyer. Mesereau never lost his cool during the opening statement, despite many objections from the district attorney. He laid out his entire case before the jury, but previewed the fact that he intended to assassinate the victim and the victims mothers character. He prepared the jury for all of this so that the jury was not surprised or shocked. Michael Jackson was acquitted of all charges. The jurors complimented Mesereau on his elegant opening statement given with passion and drama. Trial Advocacy II Professor M. Rosen. 13

14 The Trial of Levi Weeks or The Manhattan Well Mystery 3 On December 22, 1799, Elma Sands, a young woman residing in a Greenwich Street boarding house in New York City, borrowed a muff from a neighbor, left the house and disappeared. On Christmas Eve, three young boys found Elma s borrowed muff floating in the Manhattan Well. Nine days later, Elma s body, violently battered, her gown torn open with great violence was raised from the depths of the well. Levi Weeks, her lover and a fellow boarder, was arrested for her murder. Alexander Hamilton and Aaron Burr appeared for the defense in the first recorded murder trial in United States history. In 1800, when the trial began, Hamilton and Burr, although hardly close friends, were still on speaking terms. They often worked together on one side of a case or on different sides of the same case. In this case, public opinion was enflamed. Elma Sands death created a sensation in the City of New York. A pretty young girl from a respectable home had been cruelly murdered and rumors abounded that the young carpenter who lived in the boarding house had proposed marriage to her in order to enjoy her favors and had then killed her to avoid keeping his promise. Hand bills were distributed around New York implying Weeks guilt and the first newspaper accounts added fuel to the fire that threatened to consume the young man. Levi Weeks was arrested on January 2 when the discovery of the body was reported to the police. The trial was held at a session of the Court of Oyer and Terminer in General Goal Delivery in New York City. Inside the courtroom the crowds were so great that constables were ordered to clear the room of superfluous spectators. The version of the trial considered most reliable was taken down in shorthand by William Coleman, who claimed to have filled six notebooks with the events of the trial. Coleman was a clerk of the circuit court, a position he owed to the influence of Alexander Hamilton. This trial is thought to be the first recorded murder trial in United States history. The presiding Judge in the Weeks trial was John Lancing, Chief Justice of the New York Supreme Court. The prosecutor was Assistant Attorney General Cadwallader David Colden, the grandson of the former Lieutenant Governor of Colonial New York. The defense team of Alexander Hamilton and Aaron Burr were joined by defense attorney Brockholst Livingston. Livingston had administered the oath of office to George Washington. Assistant Attorney General Colden rose for his opening address: In a cause which appears so greatly to have excited the public mind, in which the prisoner has thought it necessary for his defense, to employ so many advocates distinguished for their eloquence and abilities, so vastly my superior in learning, experience and professional rank; it is not wonderful that I should rise to address you under the weight of embarrassments which set circumstances actually excite. But Gentlemen, although the abilities enlisted on the respective sides of this cause are very unequal, I find consolation in the reflection, that our tasks are so also. Levi Weeks, the prisoner at the bar, is indicted for the murder of Elma Sands. He is a young man of reputable connections and for ought we know, until he was charged with this crime, of irreproachable character, nay of amiable and engaging manners, insomuch that he gained the affections of those who are now to appear against him as witnesses on this trial for his life. These are circumstances greatly in his favor and there is no reason to fear that they will not be urged with all their force. We are aware that you will not convict such a one of the horrid crime of which he is accused upon less than the utmost evidence that the nature of the case admits, and that you will not readily be convinced that one so young has already imbrued his hands in the blood of the innocent. The deceased was a young girl, who until her fatal acquaintance with the prisoner, was virtuous and modest and it will be material for you to remark, always of a cheerful disposition and lively manners, though of a delicate constitution. We expect to prove to you that the prisoner won her affections, and that her virtue fell a sacrifice to his assiduity; that after a long period of criminal intercourse between them, he deluded her from the house of her protector under a pretense of marrying her, and carried her away to a well in the suburbs of this city and then murdered her. (Here, Colden stopped, suddenly, for a few seconds as if overpowered with his emotions.) No wonder, gentlemen, that my mind shudders at the picture here drawn, and requires a moment to collect myself. I shall proceed to detail you now more particularly the proof which I expect will be made. [Here, Colden recites the history, how the body was discovered and the facts of the victim s disappearance. Colden can produce no eye witnesses. This trial will be a classic case of circumstantial evidence. Colden previews his problems for the jury.] You will see, gentlemen of the jury, that we have only circumstantial evidence to offer to you in this Trial Advocacy II Professor M. Rosen. 14

15 case, and you must also perceive that from its nature it admits of no other. I shall, however, reserve my remarks upon the subject for a future stage in the cause; and shall, without delaying you longer, proceed to call the witnesses. I have chosen this trial not only because of its historical significance or because of the interesting cast of characters. The opening statements are good examples of the principles enunciated in this book. Assistant Attorney General Colden makes excellent use of the natural sympathy for the young, innocent in many ways, victim. He also takes the sting away from the fact that many witnesses will testify for the defense that Levi Weeks was a young, upstanding businessman. Aaron Burr gave the opening statement to the jury. He reserved giving his opening until the state rested. This is one of the few examples of Burr s style at the bar to be preserved: Gentlemen of the jury, The patience which you have listened to this lengthy and tedious detail of testimony is honorable to your characters. It evinces your solicitude to discharge the awful duties which are imposed upon you and it affords a happy presage, that your minds are not infected by that blind and indiscriminating prejudice which had already marked the prisoner for its victim. You have relieved me from my greatest anxiety, for I know the unexampled industry that has been exerted to destroy the reputation of the accused, and to immolate him at the shrine of persecution without the solemnity of a candid and impartial trial. I know that hatred, revenge and cruelty, all their vindictive and ferocious passions have assembled in terrible array and exerted every engine to gratify their malice. The thousand tongues of rumor have been steadily employed in the fabrication and dissemination of falsehoods, and every method has been taken to render their slanders universal. We have witnessed the extraordinary means which have been adopted to inflame the public passions and to direct the fury of popular resentment against the prisoner. Why has the body been exposed for days in the public streets in a manner the most indecent and shocking? [Elma Sands body was exhibited in the middle of the square, near the gallows, for days after the body was discovered.] Such dreadful scenes speak powerfully to the passions; they petrify the mind with horror congeal the blood within our veins and excite the human bosom with irresistible, but indefinable emotions. When such emotions are once created, they are not easily subdued. We rely on it at first that there is nothing from which a discrete jury can condemn the prisoner; in the very commencement of the business it is involved in doubt. Notwithstanding there may be testimony of an intimacy having subsisted between the prisoner and the deceased, we will show you that there was nothing like a real courtship, or such a course of conduct as ought to induce impartial people to entertain a belief that marriage was intended; that it will be seen that she manifested equal partiality for other persons as for Mr. Weeks. It will be shown that she was in the habit of being frequently out of evenings, and could give no good account of herself; that she had at sometime asserted that she had passed the evening at houses, where it afterwards appeared she had not been. We shall show you that if suspicions may attach anywhere, there are those on whom they may be fastened with more appearance of truth than on the prisoner. Certainly you are not in this place to condemn others, yet it will relieve your minds of a burden. There will be two modes of giving a solution first, that the deceased sometimes appeared melancholy, that she was a dependant upon this family and that a gloomy sense of her situation might have led her to destroy herself. We shall show you that the prisoner has been uniformly well-spoken of, more highly esteemed than one of his years, not only for his deportment, but for his morals. That a man of such a character should be impelled, without motive, to the commission of so horrid a crime, cannot be believed. Much has been said about the appearance of guilt and terror in the prisoner when charged with a crime. But gentlemen, no men is armed with so much firmness of nerves that when charged with a crime, he would not discover real emotion. But before we come to the testimony, on the part of the prisoner, it may be well to examine a little more into the nature of the evidence on the part of the prosecution. It may be material to discover how much of this testimony which we have heard is the effect of prejudiced imaginations; in cases, people relate first with an honest zeal to relate as an opinion, next as a matter of fact. The only material facts in which I would observe here, is the expression ascribed to the prisoner, of the Manhattan Well, but that circumstance will be satisfactorily accounted for, by proving to you that he had been previously informed that the muff had been found there, and it was therefore natural to inquire if the body was not found there also. If, gentlemen, we show you all of this, you will be able to say, before leaving your seats, that there is nothing to warrant you in pronouncing the prisoner guilty. In this clever opening, Burr offers the suggestion that she was so morose over her dependency upon the Ring family that she could have drowned herself. Burr also called before the jury the awful possibility of the death of an innocent man, his client. These openings are an interesting look into history. We Trial Advocacy II Professor M. Rosen. 15

16 see that both the prosecution and the defense lawyers used all the sympathy they could muster for their clients, and against their opponents. Neither the prosecutor nor the defense team delivered a closing argument to the jury! Counsel for both sides took the very unusual course, of submitting the case without argument to the jury under the charge of the judge. It was the practice in 1800, as in English courts of justice, for the judge to summarize the facts. After saying that he was taken by surprise in being called upon to charge the jury before he had the usual opportunity of preparing a digest of the testimony for the jurors consideration, and after some incidental comments, he proceeded to remark, quietly and as a matter of course, that it was very doubtful whether the deceased left the boarding house on that Sunday evening in the company of the prisoner. He also suggested that it was very doubtful that the deceased had been exposed to any violence other than that occurred by drowning, and finally, said that it was difficult to discover what motive could have actuated the prisoner in the commission of the crime and that the court was unanimously of opinion that the proof was insufficient to warrant a verdict against the prisoner. The jury retired and returned in five minutes with the verdict of not guilty. Katherine Ring, the owner of the boarding house, upon Weeks acquittal, stood in the courtroom, pointed at Alexander Hamilton and cried out If thee dies a natural death, I shall think there is no justice in heaven. 3 Kleiger, Estelle, The Trial of Levi Weeks, Laurel Publishing Company, End of Document 2011 Thomson Reuters. No claim to original U.S. Government Works. Trial Advocacy II Professor M. Rosen. 16

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