In my previous two posts I have been discussing The Last Trial by Scott Turow. (Links are at the end of this post.) It is a great book. This post deals with the end of the trial and more of my reflections from over four decades as a litigator.
After the prosecution rests the accused, Kiril, must decide if he will testify in the trial. It is his right. Defence counsel cannot keep him off the stand. As with many strong willed and accomplished accused Kiril wants the jury to see he is not the man portrayed by the prosecution. As I expected, Stern and Marta tell him directly and forcefully not to testify. Will he, a Nobel Prize winner, accustomed for decades to doing what he wants accept their advice? (I was reminded of an important Saskatchewan case in which Colin Thatcher, a former Provincial Cabinet Minister and the son of a former Premier, was on trial charged with murdering his wife. Against the advice of his trial lawyer he insisted on testifying and was convicted. In his book, Last Appeal, Thatcher said
Because of my legislative experience, I believed any jury would demand they hear me say, “I didn’t do it.” Choosing not to testify was a luxury I did not believe I had.
His hubris doomed him for he was savaged on cross-examination. I wrote a series of posts on the book which can be found by looking on my non-fiction page.)
Stern spends much of the day before he will give the closing argument thinking about his life and what he will say to the jury. (While I try to have the closing drafted before the trial it is inevitable that unexpected statements, the way in which certain evidence was given, the impression created by witnesses means my closing arguments have often changed during the trial and are not completed until sometime during the night before being delivered.)
Stern’s closing address is beautiful. It is eloquent. It is moving. He presents clearly the positions of the accused. He hammers home the dishonesty of a pivotal witness. (I once described a key witness for the Crown in a closing argument as follows:
She has practiced deceit for a long long time. She has deceived people for years. I submit she tried to deceive you.
I am not sure she knows how to tell the truth.
She has told so many stories trying to conceal or deny what happened. Finally at this trial the truth has come out.
The number of witnesses does not prove a case but equally you are entitled to consider what evidence was called that supported what she said happened.
She was the only Crown witness on the events. She was contradicted by her husband, her children, her sisters-in-law, her friend, her employer and her sister. Who came forward to support and confirm her evidence? No one because there was no one. Not even herself. She contradicted herself throughout her evidence.
I ask you to find my client not guilty of all the charges.
Stern sets out the alternative to Kiril. Every flaw in the State’s case is exposed.
Yet beneath the eloquence are troubling facts for Kiril. (I was not sure what the jury would do with the case.)
There is a twist I had not seen coming that was completely plausible for a narcissist like Kiril.
Stern reminds me of Atticus Finch. Both are lawyers of great substance but not flamboyance. Their presence and manner inspire confidence in clients. (Facing a trial is a dark time for the accused. I advise clients we are doing our best for them and will put our record of success against any firm. Many need such reassurance.)
It is not a Hollywood ending. It is a Stern ending. He has loved and respected the law for almost six decades. He has been a character in Turow’s books for over 35 years. I am sad to see his career end. I am glad there was a great last case for him. (When I reach the end as a lawyer, a time that is sometime in the future, I hope I can be as graceful as Stern.)