The Last Word
Breathes there a lawyer with soul so dead
Who has not to himself has said
Dammit! I forgot about rebuttal.
Ah, yes. Rebuttal. Whether in the form of closing argument or a witness, how many times has rebuttal served to collapse a craftily-constructed house of cards that appears to have convinced a group of six otherwise intelligent citizens and swept away an advocate’s smoke screen so thick it would have impressed a Marine Corps Drill Sergeant at basic training in Quantico. And when it hits, it’s like being on the wrong end of the snap of a wet locker-room towel. It really hurts.
Rebuttal. A lesson once taught and always remembered. Remembered, yes, but not always overcome.
My first experience came in Washington, DC where, as a new public defender, I represented a young man who had burgled the apartment of the woman who lived across the hall. I accepted the suggestion of my mentor as to how I should approach closing argument. “No one,” I argued, “would be foolish enough to burglarize the apartment of his next door neighbor. Why for my client to have done this he would have to be a madman or a lunatic!”
Duly flushed with my impressive delivery of my mentor’s eloquence, I sat at counsel table and listened in dismay as in rebuttal my opponent observed, “Mr. Dow says for his client to have done this crime he would have to be a madman or a lunatic. I don’t know the defendant. Mr. Dow does. Perhaps he is a madman or a lunatic. But the prosecution doesn’t have to prove that. We just have to prove he’s a burglar and that is what we have proven. Just look at the evidence. First…”
You know the rest.
My next experience came with an alibi defense. My client was charged with a crime that occurred at a specific hour one afternoon in New London while he was supposed to be working on the railroad tracks. He did not commit the crime, he testified, because, although he began working on the tracks in New London in the morning, at the time of the crime he was across the river working on the tracks in Groton. And he had taken a railroad hand car across the bridge to get there.
On rebuttal the inestimable Bob Satti presented railroad officials who established that the railroad bridge between New London and Groton was closed and the tracks were closed all afternoon. So much for gandy-dancing along to Amtrak line.
Prosecutors, God love ’em, are experts at rebuttal closing arguments. None ever better than now-Judge Pat Clifford. After a relatively pedestrian opening—thank you for your attention; what I say in closing argument is not evidence; these are the elements of the offense; and I submit we have proven each element beyond a reasonable doubt; you should find the defendant guilty-Pat would stoically indulge the defense attorney’s hyperbole decrying the lack of evidence against the defendant.
When the Clarence Darrow of the moment concludes, Pat slowly rises from his seat, walks to the clerk’s desk and gathers all 37 exhibits admitted in his case and takes them to the podium. Then, like pounding nails in a coffin, he reviews each one with the jury, piling each on top of the other until the pile was so high even the two alternates in the back row would need a periscope to see over them in order to see the defendant.
Cross examination, it is said, is the most powerful engine for exposing the truth. Well that may be. But rebuttal is a pretty close second.