Trials are interesting things. While I personally feel that they are far too often about gamesmanship and less about the truth (especially today, when the media has effectively turned the criminal justice system into a spectator sport – next, the talking heads will be scoring lawyers like Olympic athletes or something), the reality is that in our adversary system it is the lawyer’s job to present his or her client’s story to the jury. The opening and closing statements are where the lawyer has the opportunity to clearly articulate to the jury (or the judge, if it is a trial to the court) what they think the case is about and how it should be handled.
I’ve been in many courtrooms over the years, in many different positions. When my wife was sued as a result of a minor fender-bender years ago (an accident that did essentially cosmetic damage to both vehicles but which supposedly harmed the plaintiff to the tune of untold thousands of “soft tissue” injury) I got to be an interested spectator, if not actually the defendant. I’ve litigated cases and been on both sides of the decision (i.e., I’ve won and I’ve lost, and yes, winning is more fun and makes the client happier and more likely to pay the bill). I’ve served on a jury (not in my home state of Oklahoma, where lawyers, like felons, are statutorily ineligible to serve, but in the north woods of Wisconsin). And as a law clerk to a judge, I’ve been privy to many deliberations.
I’ve actually seen the likely outcome swing back and forth as the lawyers offered their closing argument – although that, to be honest, is a rarity. I’ve seen effective advocacy and argument and I’ve witnessed (and undoubtedly offered) argument that could best be characterized as “lame.” But it must be admitted that if there is one aspect of the judicial process that is more theatrical and more interesting than virtually any other it is argument: the openings and closings that can crystallize the outcome, in which lawyers on both sides have their shot at convincing the jury of their version of reality.
In the Interest of Justice is therefore a fascinating book. Unlike Alan Dershowitz’s recent book America on Trial, Joel Seidemann (a Manhattan Assistant District Attorney) focuses not so much on cases as he does on argument. Where Dershowitz analyzed some of the legal battles that “transformed” our nation, Seidemann examines the text of specific arguments – often in order to demonstrate not only how the legal system works, but how society is reflected (if not overtly shaped) through the prism of words. From O.J. Simpson to Marv Albert, from Jeffrey MacDonald (the Green Beret “Doctor of Death”) to the trial of Adolf Eichmann, from the Scopes “Monkey Trial” to the mysterious case of Karen Silkwood, Seidemann has collected some two dozen of the “most memorable” opening and closing arguments of the last century.
Seidemann does a nice job of juxtaposing the arguments of the two Simpson trials – the criminal case in which the defense managed to cast “doubt” on the prosecution’s case, and the civil trial in which the plaintiff was able to effectively shred Simpson’s explanations regarding various aspects of the evening his ex-wife died. Many have suggested that the racial compositions of the two juries are the reason for the different outcomes (and there may be some validity to those arguments). However, Seidemann effectively argues that the different evidentiary requirements of the civil trial (in which the plaintiff could compel Simpson to answer certain questions, while the prosecution in the criminal case could not) arguably played a larger role in the ultimate outcome.
I also found the two “celebrity” cases – Marv Albert’s tawdry trial for assaulting a girlfriend and Sean “Puff Daddy Combs’ gun possession trial – fascinating for some of the legal maneuvering that so frequently goes on in cases in which counsel recognizes that there may be some problems with their case or a witness. In Albert’s case, the defense needed to have the jury see the complainant as a greedy, vengeful bitch, and the opening argument reflects that characterization. Meanwhile, the prosecution tried to portray her as a poor innocent taken advantage of by Marv Albert the deviant sex addict (I’m sorry, but if there were ever a mental image that suggests “too much information,” I think we have a winner right there).
The more serious cases, like the heart-wrenching argument against Adolf Eichmann, demonstrate the devastating potential of the argument:
When I stand before you here, judges of Israel, to lead the prosecution of Adolf Eichmann, I am not standing alone. With me are 6 million accusers. But they cannot rise to their feet and point an accusing finger toward him who sits in the dock and cry, “I accuse,” for their ashes are piled up on the hills of Auschwitz and the fields of Treblinkna and are strewn in the forests of Poland. Their graves are scattered throughout the length and breadth of Europe. Their blood cries out, but there voice is not heard. Therefore I will be their spokesman, and in their name I will unfold the awesome indictment.
The history of the Jewish people is steeped in suffering and tears. Pharaoh in Egypt decided to “afflict them with their burdens” and to cast their sons into the river; Haman’s decree was “to destroy, to slay, and to cause them to perish.” Chmielnicki slaughtered them in multitudes; they were butchered in Petlura’s pogroms.
Yet never down in the entire bloodstained road traveled by this people, never since the first days of its nationhood, has any man arisen who succeeded in dealing it such grievous blows as did Hitler’s iniquitous regime and Adolf Eichmann as its executive arm for the extermination of the Jewish people. In all of human history, there is no other example of a man against whom it would be possible to draw up such a bill of indictment as has been read here today.
At the dawn of history, there were examples of wars of extermination, when one nation assaulted another with intent to destroy, when, in the storm of passion and battle, peoples were slaughtered, massacred, or exiled. But only in our generation has a nation attacked an entire defenseless and peaceful population, men and women, graybeards, children and infants, incarcerated them behind electrified fences, imprisoned them in concentration camps, and resolved to destroy them utterly.
Murder has been with the human race since the days when Cain killed Abel; it is no novel phenomenon. But we have had to wait till this twentieth century to witness with our own eyes a new kind of murder: not the result of the momentary ebullition of passion or the darkening of the soul but of a calculated decision and painstaking planning; not through the evil design of an individual but through a mighty criminal conspiracy involving thousands; not against one victim whom an assassin may have decided to destroy but against an entire nation.
It is a powerful indictment, no less so because it is on the page instead of spoken aloud. And rather than simply read about Eichmann’s behavior in textbook fashion, we see it portrayed with vivid language and imagery. Each of the arguments included in this book feature a different insight into the criminal justice system, and Seidemann takes the time to explore those issues well. He examines the tactics of both sides in each case and explores the reasoning behind ostensibly simple gestures (for example, when a defense attorney serving as part of a multi-lawyer contingent notes that his opponent, the lonely prosecutor, actually has a huge office and a staff of hundreds assisting him).
What makes In the Interest of Justice intriguing isn’t that the cases involved are always precedent-setting or of long-term historical significance, but rather that they reflect certain flashpoints in history and can illuminate more than just the case at hand. Be it the Amadou Diallo case or the Timothy McVeigh trial, an examination of the arguments put forth by both sides can effectively serve as a microcosm of our society and illustrate what is going on “behind the scenes.” The result in O.J. Simpson’s case isn’t necessarily much different than other cases in which likely murderers escape without punishment (for example, the Shepard murder case of the 1960s) but the larger sociological aspects will likely linger.
In the Interest Of Justice is a cleverly designed book that offers real insight not only into our criminal justice system but also into larger societal issues. Seidemann’s choices of “great” arguments might be questioned on aesthetic principles (on occasion, they’re not exactly the most cogent, concise, or compelling arguments) but each one is in its own right an interesting exploration of “justice” in our adversarial legal system.