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Libby Case: Prosecution Summation And Rebuttal


(Photo by REUTERS/Jonathan Ernst via Yahoo.)   

I have a confession to make. I am having such a hard time writing this post. I have almost no idea what to say. The reason is this: I am still flummoxed by the Fitzgerald Opening Statement. You may recall, way back before the beginning of the trial, I did a little piece on how Prosecution Opening Statements are supposed to go and the elements they are supposed to cover. There is a sort of standard format for that and I ticked them off one by one. Now I didn’t come up with that list all by my little self. No, lists like that one are spouted in law schools and in continuing legal ed course and in trial advocacy course and competitions all over this country all the time.

There is no rule that says this is how you have to do it, mind you; it’s just this is how we are all taught to do it. Well that’s not what happened at this trial. No standard, color by numbers Opening Statement from PatFitz.

Instead, we were treated to one of the most devastating pieces of advocacy I have ever seen. Understand, I am somewhat of a student of the game. When I was in Law School and when I worked downtown in N.Y., when ever I had free time during the day, I went to watch other lawyers on trial or arguing before the Second Circuit Court of Appeals. And since it was the Big Apple, some of the best lawyers in the country travel in to argue there. I am a pretty sophisticated consumer of lawyer’s arguments.

Well Firepups, I have to tell you that I have never seen or heard ANYTHING like that Opening. I still have it on my mind. It was totally stripped down, devoid of almost all rhetorical flourish or device (there was only one—Fitz compared 4th of July fireworks to the fireworks that were about to rain down on the Wilsons after July 6th) and completely without artifice or extraneous elements of any kind. It relied solely and completely on the power of the facts and pushed those facts to the foreground in stark relief by making the person reciting them almost invisible.

It takes, all in one unified moment: nerves of steel, total humility, exquisitely nuanced taste/discretion, and a total belief in the “rightness” of the evidence to dare so simple and stark a presentation. It was like Shaker furniture, or the glistening perfection of a white marble Doric column. Weeks later, I am still blown away by it and cannot get it out of my head.

So, to say I have no clue what Team Fitz has in store for us in Summation, would be such a huge understatement, that I can’t bear to insult your intelligence with it. So, instead I am going to bring you up to speed on how the summation process works and hopefully you will be primed and ready for whatever TeamFitz brings to us.

The Prosecution gets the first word and the last word the jury will hear from lawyers in the trial. This is supposed to be some small compensation for bearing the very heavy “proof beyond a reasonable doubt” burden of proof. The way that plays out is this: Prosecution opens first, then Defense opens, then there is testimony and exhibits (a/k/a evidence), then the Prosecution sums up, the Defense sums up and the Prosecution gets to do a Rebuttal Summation. The jury does not hear from the lawyers again after that. The judge will hear from the lawyers, but not the jury (except for very extraordinary circumstances which I will not go into here).

In this case, the first Prosecution Summation will be offered by Mr. Zeindenberg. He is a very accomplished lawyer in his own right, but I have never seen him argue and don’t know if we can expect any surprises from him. He and the Defense have an advantage here afforded them both by the judge and by President’s Day holiday in that they will have had a good 5 days to comb over the transcripts and record and write out many drafts of what they want to say. The Defense lawyer may chose to tweak his Summation to deal with something heard during the first Prosecution Summation, but as with the Opening Statements, both sides will walk into that room having their game plan already set.

The hardest thing to do is the Prosecution’s Rebuttal Summation. You have little/no idea what the Defense will argue in their Summation, if you are really lucky you will have a lunch break or bathroom break to pull your thoughts together and outline your remarks, but pretty much, you are arguing off the cuff. This is where your total encyclopedic knowledge of the case, your command of the relevant statutes and case law and your ability to think on your feet makes all the difference.

Traditionally, the Prosecution's main Summation is a sort of mirror image of that traditional “this is what the evidence will show” kind of Opening Statement. Normally, you remind the jury of what you promised them in the Opening and take them through all the evidence to demonstrate how you made good on every promise. Pat didn’t make any promises in the Opening, he went straight to the evidence and let it, literally, speak for itself (he played three excerpts from 3 different instances of Libby’s prior testimony and you could hear for yourself Libby’s voice growing more confident as he honed and refined his lies to the Grand Jury. I truly believe it was at that moment that Team Libby knew they could never put him on the stand. Fitz cut him off at the knees with that one).

So, I don’t know that Zeidenberg has the formula available to him, though he could try a variant on it. I am looking forward to seeing what he comes up with.

However, for me, the real object of fascination will be the rebuttal. Will it be like the cross examination of the Libby underling where in one question “if you wanted two hours to go for coffee with Libby would that be hard to get ?” which turned the “Libby was a busy man” defense completely on it’s head? That’s my current theory. Will it be picking out and highlighting some previously overlooked and seemingly insignificant detail that stands in as a metaphor for the entire case? That’s what he did in the Sheik Abdel Rachman case. Or will it, like the Opening Statement, be something totally unexpected? Every step of the way, Fitzmas has kept me on the edge of my seat. It seems that will be true right up to the very end. It’s so hard to wait till we find out.

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