TIME HONORED HISTORICAL ANALOGIES
Courts are loath to restrict counsel from making literary and historical analogies in closing argument. Take for example Edward Bennett Williams’ biblical references, or the reference to the inscription on the wall of “the oldest courthouse in England,” set out above. Even more to the point, Warren Burnett analogizing his client, Delia Gonzalez, to the scapegoats of the Nazi Holocaust. One could hardly conjure up a more succinct description of a lawyer’s role in closing argument than Burnett’s retort to the prosecutor’s objection:
“Before the Germans could do as they would with the Jews, they prosecuted a handful in Court.
- BENNETT: Your Honor, I am going to object to that statement. There’s nothing in the record anywhere approaching the analogy of that statement. For that reason, I ask the Court to instruct the jury that the remarks of counsel are not evidence and not to be considered as evidence.
- BURNETT: May I be heard, Your Honor? THE COURT: Yes.
- BURNETT: There’s no better piece of history known, and if the time should come, when an advocate cannot analogize on history, otherwise then of course, the role of the advocate would be meaningless.
THE COURT: Objection overruled.”
ASK THE JURY TO ARGUE YOUR CASE FOR YOU
When Michael Tigar, a giant among midgets in our profession, argued for the life of Terry Nichols, convicted in the Oklahoma City bombing trial, Tigar asked his jurors:
“I am done now, ladies and gentlemen of the jury. When I go home tonight my little daughter will ask me, ‘what did you do today Daddy?’
I will tell her that I tried to save the life of one of God’s creatures. And members of the jury what will you say when you go home?”