Chapter 7 Closing Arguments

• Library: How to Win an Acquittal (ABA) (2011 Ed.)

CHAPTER 7 Closing Arguments Trial Diary 29

Criminal trials cannot go to closing until the court figures out what instructions to give the jury. In some cases, this is not so difficult a process, since often standard approved instructions control. In the San Juan case, the indictments (yes, there are two) are complex and confusing. There are four conspiracy charges. One relates to the federal election laws and has three different sub-conspiracies alleged. The defense, of courses, insists these are different conspiracies. And two of the sub-conspiracies are time-barred and depend on the third being a piece of an overarching unitary conspiracy.

Confused yet? Imagine how the jurors will feel. Then there's the honest services scheme, which is the underlying crime for the money-laundering scheme. The defense says honest services fraud requires very specific official action that favors a contributor and a quid pro quo. That's Latin. Loosely, it means "show me the money" The prosecutors, of course, say something different. And finally, there's the tax conspiracy. That Luisa and Acevedo Vila got together to figure out that if Acevedo Vila didn't report the nice clothes he got and a couple of family trips he took cash for, and if those items were in fact Puerto Rico income that needed to be reported in Puerto Rico, and then if Acevedo Vila didn't report them, when he got around to filing his federal return, on which he owed no income thanks to a foreign tax credit, he still owed the alternative minimum tax, to the tune of $100 for each of two years. Hey—I'm not making this up.

So we spent all day in the judge's chambers yesterday arguing instructions. Arguing is too strong a word. Judge B. will do what he thinks right. What he thinks right is for the most part to use the government's proposed instructions. The defense won small points here and there. But I'm pretty sure the final version of the instructions will sound like it's telling the jurors to convict. Call me paranoid, but that's how I read them. We had one very important fight. Over what prosecutors are too often getting to use in white-collar cases—a willful blindness instruction. Basically this tells the jury they can infer guilty intent if they think a defendant closed his or her eyes to facts. Bad instruction. Bad idea. And I say no evidentiary basis to give it in this case. So of course, Judge B. is going to give it. Ouch.

And funny thing. When I reread the final version of the instructions, I didn't seeany definitions ofreasonabledoubt. Orwillfully. Or good faith. Obviously typographical errors. I pointed out the obvious mistake. No mistake, it turns out. Judge B. doesn't believe courts should define reasonable doubt. Or lawyers should give jurors examples of what reasonable doubt means. Really. I guess jurors sometimes acquit when they understand reasonable doubt and the requisite intent. And we wouldn't want that, now would we.

Trial Diary 30

Today was a total circus. Outside of court. In the courthouse. The place was mobbed with people wanting to watch the closing arguments. I meet Luisa every day at the street entrance to the courthouse and we push through the reporters and walk together up the sidewalk and into the federal building. It was a madhouse this morning. But a good madhouse. Supporters waving party flags. People running up and hugging Luisa. People applauding me. Inside was more of the same. To add fuel to the fire, I chose a black suit, white shirt, and bold red tie. Red is the color of Acevedo Vila's and Luisa's party. Hey, I'd have worn that tie anyway. It's a good closing argument tie. But in the San Juan case, it elevated me to hero status.

Two of the younger prosecutors split up the initial prosecution closing. I was surprised all five of the juniors didn't give the closing as a choral reading, taking turns. But it was just two. Standing up one after the other with PowerPoints and reading their script to the jurors. They sounded good enough. They lied, of course, about the evidence. Prosecutors lie. Just ask any defense attorney. But the lies were general and expected.

Then Tom G. got up for Acevedo Vila and talked for two hours. He did good. He danced around damaging testimony. He called the fact that Acevedo Vila asked his family to write checks a mistake. He attacked witnesses' memories. He urged that getting wined and dined doesn't mean a candidate knows there are illegal contributions. He agreed Acevedo Vila helped get Santana meetings, but insisted Santana business was good for Puerto Rico. He ridiculed the tax charge. Over and over he insisted there was no evidence that Acevedo Vila knew people were doing bad things for his benefit. I tried to watch the jurors while Tom talked. They seemed to pay attention at times. But mostly all of us were trying to stay warm. Because somehow as the morning wore on, the air conditioning went crazy and the temperature in the courtroom dropped. Drastically. The thermometer near the defense table said 60 degrees. Ice was forming in the water pitchers. Jurors were shivering. Luisa was smart enough to bring a wrap and was largely invisible under what looked like a big black blanket. At some point I stopped thinking about what Tom was saying and started wondering if my toes would fall off. Tom finished, and we all got to go outside for a lunch break and in search of firewood.

When we returned in the afternoon, it was my turn. And the courtroom was warmer. I didn't care. I planned to make it plenty hot for the prosecutors. And I started indignant and forceful. I stood for the innocence of Luisa. Luisa was a scapegoat. Dang, I love that Bible story. I told several stories. I said "please" a lot. I used the "clean glasses/dirty glasses" line while talking about circumstantial evidence. And how circumstantial evidence doesn't mean speculate or guess. Then said my grandpa taught me when I was young that you could go through life wearing dirty glasses or clean glasses. Dirty glasses, I said, distorted everything and made things look ugly and bad. I said prosecutors wore dirty glasses. I said my grandpa told me to wear clean glasses, to see things how they are. And I told the jury in criminal trials, jurors are supposed to wear clean glasses.

Then I pulled out a fable from Puerto Rican childhoods. Something I was told years ago by a sweet Puerto Rican lawyer who passed away last year. Seems in Puerto Rico there are lots of tales of "Juan Bobo," a child who always gets in trouble. Think Dennis the Menace meets the kid from Home Alone. But in Puerto Rico, they take Juan Bobo seriously. Even have statues of...