ANTICIPATING THE PROSECUTOR’S REBUTTAL
Different lawyers and different facts may call for different approaches, but generally one needs to deal with the fact that after defense counsel retakes his or her seat, the prosecution will again have an opportunity to speak to the jury, an argument that, except in rare circumstances will go unanswered. A common approach is the following:
“Psychologists tell us that people find most believable those they hear from first, as well as those they hear from last. A sort of “FIFO” (or first in/first out) credibility gauge. Under our system, and because they have this heavy burden to prove their case beyond a reasonable doubt, the prosecutor over here gets to go first and last. We are sort of sandwiched in between.
So my client is going to have to rely upon you, when you go back to the jury room to deliberate, to respond as best you can to the arguments he or she is going to be making next. I will not be permitted to do so.”
In Delia Gonzalez’ defense Warren Burnette returned to the “scapegoat” theme in addressing the issue of rebutting the prosecutor’s closing argument as follows:
“Now, Bock is going to make you a speech. It will be what we call a steamwinder. That’s his purpose in the case.
Now, let me tell you, up in Salem every time they convicted a witch and every time they burned one, there was somebody making it easy for them to do it. That was the man that made the speech. That was the man that made the closing speech. That was the man who came along and did the hatchet job and who aroused you.
Oh, you see it’s always been known,… the Old Testament is full of it and they are still writing about it as though there’s something new about it in the psychology textbooks of the day, but if …if I want to bring out the worst that is in you towards your fellowman or woman, then I need to isolate that person. I need to get them apart. I need to get them to be something a little bit away from you, really need to get your attention sort of off of them, but I need, I need to get you separated.
Delia is not on the jury. She can’t be in the jury room with you. That’s the system we have. Maybe it won’t always be that way, maybe there will come a time, a blessed time when you are all together when the judgments are made, but you owe her the obligation while you deliberate of thinking of her as a wife, the mother and the warm, human being that this evidence shows her to be and you owe her the obligation of saying that ‘I will see no citizen branded a felon based upon the whooping and hollering of an ambitious prosecutor who will be somewhere else next week in court making the same speech.’”
