I’m a big fan of closing arguments. It’s that time in a trial when the lawyers wax rhetorical and either rise to the occasion or stumble as they try to convince the jury to buy into their version of the case.
This week, at the penalty phase of the Boston Marathon bomber’s trial, the closing arguments were dramatic and emotionally compelling. Ultimately the prosecution prevailed; the jury condemned Dzhokhar Tsarnaev to death.
A good lawyer uses a closing argument to expound on big concepts and little details alike. The best arguments frame the toughest issues of our times in masterful oratory that finds a permanent place in our cultural lexicon.
Atticus Finch wasn’t real, but I wish he were — and I wish there were more lawyers like him. His case in Harper Lee’s “To Kill a Mockingbird” nailed a social issue that still haunts us a half-century later: racism in the criminal justice system. The motives behind the prosecution of a black man who kissed a white woman were cynical and racist, and he called them out on it.
But Finch’s argument cut through the cynicism:
“In this country,” he said, “our courts are the great levelers, and in our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and of our jury system. That’s no ideal to me. That is a living, working reality.”
That enduring belief in the legal system drove Clarence Darrow, whose closing argument probably saved Leopold and Loeb from the gallows in the 1920s; prosecutor Vincent Bugliosi, whose closing took on the murderous, helter skelter madness that was Charles Manson; Bobby DeLaughter, who brought the killer of civil rights leader Medgar Evers to justice after 30 years; and William Kunstler, who challenged the establishment in defense of the Chicago Seven:
“You can crucify a Jesus, you can poison a Socrates, you can hang John Brown or Nathan Hale, you can kill a Che Guevara, you can jail a Eugene Debs or a Bobby Seale. You can assassinate John Kennedy or a Martin Luther King, but the problems remain,” Kunstler said in defense of yippies charged with inciting riots at the 1968 Democratic National Convention.
“The hangman’s rope never solved a single problem except that of one man.”
It’s a frequently quoted one-liner from a closing argument that perfectly captured the flavor of its time even if the Chicago Seven trial wasn’t a capital case.
But perhaps the best one-liner to come out of a closing argument, though, stems from a bloody glove and Johnnie Cochran’s defense of O.J. Simpson: “If it doesn’t fit, you must acquit.”
We don’t know yet where United States vs. Dzhokhar Tsarnaev will land in the legal history books, but the closing arguments were among the best I’ve seen.
There were no cameras in the courtroom, so they won’t be making the rounds on YouTube. You’ll have to listen with your eyes, just as I did when I read “To Kill a Mockingbird” as a child. I didn’t have an iPad, I had a library card.
Listen with your eyes and you will hear more than any Twitter feed can give.
Steve Mellin, a prosecutor with the Justice Department’s capital punishment unit, brilliantly contrasted the havoc and heartbreak with the man who caused it.
Mellin’s performance was classic. He took long, dramatic pauses, solemnly named the dead and wounded, described “a river of blood” and even seemed to choke up as he spoke of one of the bombing victims.
“There is so much death and loss and devastation in this case, it’s hard to know where to begin,” he said. “The defendant planted a bomb that led to painful eulogies and terrifying memories. Surviving family members were left to attend to funerals and live lives with bittersweet memories of those lost forever and painful reminders of what could have been.”
And then he struggled to maintain his composure as he read from a poem written by the father of Lingzi Lu, a 23-year-old grad student from China:
In tears, we hear you say, the forever young,
“Dear Dad and Mom, don’t cry,
I love you!
If there is an after-life, I will be your daughter again!”
“Her father said, ‘She’s gone. How can our living go on?’ So unbelievably sad, and yet so true. Their pain will never go away.”
And then there was Tsarnaev, a man he said was a terrorist convinced he had done right, caught on camera in a courthouse holding cell three months later.
“The defendant comes into court to be formally charged with murdering a little boy, murdering two women and a police officer,” Mellin said. “He has had months to reflect on the pain and suffering that he has caused. But when he’s put in that holding cell, you cannot see a trace of remorse on his face. He paces, he fluffs his hair, and he makes obscene gestures at the marshals watching over him.”
He described Tsarnaev and his brother Tamerlan as “partners in crime and brothers in arms.” Tamerlan died a martyr’s death, Mellin said, walking into a wall of police bullets. But Dzhokhar survived.
“A death sentence is not giving him what he wants. It is giving him what he deserves,” Mellin said. “Frankly, it’s not even close.”
Or is it? Defense attorney Judy Clarke has saved several people convicted of hideous crimes from death row. And this week we got to see how.
Her closing argument started off slowly, and some of the reporters, myself included, wondered if she’d lost her magic touch. But Clarke was building quiet thunder.
She has always owned the defense case by telling it like it is. It’s how she maintains credibility while defending people who commit horrible crimes. There’s no sugar-coating, no fairy dust. Yes, he did it and it was awful.
“We’ve told you that Dzhokhar followed his brother down Boylston because that is the tragic truth,” she said. “But if not for Tamerlan, this wouldn’t have happened. Dzhokhar would never have done this but for Tamerlan. The tragedy would never have occurred but for Tamerlan. None of it.”
Like everyone else, Clarke says, she’s wondering how an immigrant “kid” everybody liked became the Boston Marathon bomber. She can offer no answers.
“If you’re looking to me for a simple and clean answer as to why this young man, who had never been arrested, who had never sassed a teacher, who spent his free time in school working with disabled kids — if you ask me — if you expect me to have an answer, a simple, clean answer as to how this could happen, I don’t have it. I don’t have it.”
And then she makes the plea to spare his life, putting the decision squarely on the shoulders of each juror. The federal death penalty requires a unanimous vote by all 12 jurors. A lone holdout means a life sentence and a victory for Clarke.
As she is fond of saying, “It only takes one.”
And so, the final moments of her argument were targeted at the “one.” She asked, “Is his a life worth saving? Is there hope for him? Is there hope for redemption?” And she pointed out that the law never demands a death sentence.
“The law values life, and you have no obligation to vote for death. Each one of you, individually, each one of you is a safeguard against the death penalty.”
She urged jurors not to act out of a need for retribution because “that’s not who we are.” A life sentence, she argued, “allows the possibility of redemption.” It’s a sentence that reflects justice and mercy.
“Mercy’s never earned,” Clarke said. “It’s bestowed. And the law allows you to choose justice and mercy. I ask you to make a decision of strength, a choice that demonstrates the resilience of this community. We ask you to choose life.”
Atticus Finch would have been proud. But Clarke didn’t get the last word. That privilege belongs to the prosecution in any capital case, and Assistant U.S. Attorney William Weinreb has stood as the fatherly moral conscience of this trial.
His closing argument came like a punch in the gut after Clarke’s “choose life” idealism.
“If you want to know why the defendant committed these crimes, that’s the question Ms. Clarke just told you is unanswerable. If you want to know — if you want an explanation of how he became this person, of what made him do it? What better place to look for the answer than in his own handwritten explanation of his actions?” Weinreb said.
During the 18 hours he hid from police in a tarp-covered pleasure boat in a Watertown backyard, Tsarnaev scrawled what prosecutors refer to as the “boat manifesto.” Tsarnaev’s message, written with a pencil on the sides, was streaked with blood and pocked with bullet holes. Jurors viewed the boat for themselves.
“He wrote in the boat, ‘I’m jealous of my brother who has received the reward of martyrdom, but God has a plan for each person. Mine was to hide in this boat and shed some light on our actions,'” Weinreb said.
“‘God has a plan for each person.’ That’s who he believed he was doing this for. His god, not Tamerlan Tsarnaev.”
He said Tsarnaev deserves the death penalty “not because he’s inhuman, but because he’s inhumane.”
And then he planted the notion that anything short of a death sentence is letting a callous terrorist off the hook.
“If you sentence the defendant to life imprisonment, you will be giving him the minimum punishment authorized by law for these crimes,” Weinreb said. “It is a lesser punishment than death. Does he deserve the minimum punishment or do these crimes, these four deaths, demand something more?”
I don’t know if these closing arguments will be taught in law school some day. I don’t know if they’ll eventually wind up in movies or books. All I know is I was lucky to witness three lawyers who are among the best in the country at what they do, playing at the top of their game.
