You know the situation — you’re sitting there with a losing hand as defense counsel. Meanwhile, the prosecutor enjoys a field day ripping your client part. How do you change the poisonous anti-defense atmosphere in the courtroom?
Perhaps desperate measures are called for.
If the situation is appropriate, consider these four possibilities.
First. Apt sayings. Make a habit of collecting clever quips. Use them in argument when apropos. One of our favorites is “I would agree with trial counsel — but then we would BOTH be wrong.”
Second. Quick little funny stories with a moral. Only do this if you can tell a story without upsetting the military judge or making the voting members uncomfortable. We like the story reputedly told by Abraham Lincoln when he was litigator. One day, a little boy came running to his dad on the farm saying that the hired hand and the maid were in the barn “keeping the hay warm. “Son, ” said the father, “you’ve got your facts right… but your conclusions are all wrong.“
Third. Find something historical to suggest the prosecution is being overly harsh — for example, if they are asking for a lot of jail time and a BCD. Voting members might be reminded that — to the disgrace of all –there were lifeboat spaces on the TITANIC for approximately 130 more drowning passengers. Sadly, those safely in the lifeboats refused to row back and pick up survivors. You then compare that to what the prosecutor seeks – a mean-spirited result which definitely will not “save” this accused.
Fourth. Suggest that trial counsel is engaging in diversionary tactics and misrepresenting. The argument might go something like this
When you stop to think about it, trial counsel is highly overaggressive in his/her argument. It’s an old tactic — diversionary wordplay to fool you.
Diversion. Misdirection. Do you see what I mean? — Take this example…….
Johnny’s mother loves music and sings in a church choir. She has three children. She names the first child Bach. She names the second child Beethoven. What is the name of her third child?
The answer — after a moment’s reflection, is not the composer Brahms but rather, Johnny. Remember the question started “Johnny’s mother loves music….”
You then argue that the prosecutor is engaging in much more misdirection. Try tying that to holes in his/her argument. If it seems advisable, cite some other potential examples of misdirection or wordplay.
Paul’s grandfather came over from the old country, and was a butcher in the United States for 20 years. He was 5’10” tall and wore a size 11 shoe. His belt size was 34.” What did he weigh?
Susan has worked hard in her garden and collected five piles of weeds in her front yard and four piles of weeds in her backyard. How many piles of weeds will she have when she sets them out for the trash man?
[For the truly brave, do not give the answers to the last two questions — which are, of course, MEAT and ONE PILE. Chances are, the voting members will be curious about the unanswered two questions and perhaps spend time on that, not on your client].
Used properly, each of these four rhetorical devices can effectively derail a prosecutor hell bent on “sending your client to Leavenworth.”