VIRGINIA BEACH, Va. - "Ladies and gentlemen of the jury ... " In two Virginia courtrooms this morning, lawyers will speak directly to jurors as the trial of one sniper suspect begins and another ends.
Opening statements will be presented today in the trial of 18-year-old Lee Boyd Malvo, and closing arguments will be delivered in the trial of the elder sniper suspect, John Allen Muhammad, 42.
The two are accused of killing at least 13 people, mostly in the Washington area last fall, and face two charges each that carry the death penalty.
Unlike the testimony phase, when a lawyer serves as a sort of intermediary between witnesses and the jury, the bookends of the trial provide prosecutors and defense lawyers with a direct connection to the 12 men and women who decide a defendant's fate.
Legal experts say that is where the similarities end.
Judge Dana M. Levitz, chief judge of Baltimore County Circuit Court and a longtime Maryland prosecutor, compares the opening statement to the picture on a jigsaw puzzle box; the closing argument, he says, is like the completed puzzle.
"The box tells you what the picture will look like when all the pieces are together," he says.
For law students, the study of opening statements and closing arguments is something of an art form. Lawyers use the opening to create a strong impression.
Opening statements are an outline of the facts and theory of a case, says Norman Lefstein, an Indiana University law professor who helped write American Bar Association standards for openings and closings.
It is inappropriate, he says, for prosecutors or defense lawyers to make formal arguments during the opening because that is expected at the end of the trial when they can ask the jury to make inferences from the evidence that has been presented.
Today, 15 miles away in Chesapeake, prosecutors will open with an overview of the evidence against Malvo; his court-appointed defense lawyers will attempt to plant seeds of doubt about the commonwealth's case.
Fairfax County Commonwealth's Attorney Robert F. Horan Jr. and defense lawyer Craig S. Cooley will give the statements, expected to last at least an hour each.
In Virginia Beach, prosecutors will try to bundle up the three weeks of testimony they presented against Muhammad. Then, court-appointed defense lawyers will remind jurors that they must not convict Muhammad if they have a single reasonable doubt about his guilt.
Closing arguments from Prince William County prosecutors - likely Assistant Commonwealth's Attorney Richard A. Conway and Commonwealth's Attorney Paul B. Ebert - and defense lawyer Peter D. Greenspun are expected to last a total of four hours.
The legal community seems divided on whether openings or closings are more important. Either can provide some of the most dramatic and memorable moments of a trial.
The opening statements in O.J. Simpson's murder trial in 1995 took two full days and were peppered with gory photographs presented by prosecutors and shocking details presented by defense lawyers.
Simpson's lead attorney, Johnnie L. Cochran Jr., promised jurors that they would hear that police ignored witness accounts of the night Nicole Brown Simpson and Ronald L. Goldman were slain. Cochran's opening statement contained so many bombshells that one deputy district attorney who repeatedly objected to it was hospitalized that evening with chest pains.
Simpson was acquitted.
Levitz says opening statements come as jurors are "captivated" by the case. "It's their first impression," he says. "Nothing could be more important."
But Andrew C. White, a Baltimore defense attorney and former federal prosecutor, says closings make more of an impact because the jury, having heard evidence on both sides of the case, can listen more analytically.
During closing arguments in serial killer Jeffrey Dahmer's 1992 insanity trial, District Attorney E. Michael McCann tried to drive home Dahmer's "superior intelligence" and rationality - points he says he made repeatedly during the trial.
McCann, a Milwaukee prosecutor for more than 35 years, says prosecutors in high-profile trials must be careful not to inadvertently threaten jurors during closing arguments.
"One argument that must never be made to jurors is that, 'The world is watching you and how you act. You don't want to disappoint your community,'" he says. "Jurors may know this in the back of their minds, but it's totally improper for prosecutors to spell it out."
Most lawyers agree that openings and closings give prosecutors a tactical advantage because they are the first and last to address the jury.
In Virginia, as in Maryland and in federal court, prosecutors always deliver the first opening statement of a criminal trial. Defense lawyers can give their opening statement immediately afterward or wait until after the prosecution presents its evidence. Most defense lawyers opt to follow the prosecutors.
At the end of the trial, the prosecution delivers what is called the "opening" closing argument, which is followed by the defense's closing argument. Prosecutors may then present a rebuttal, giving them one last crack at the jury, because the state has a heavy burden of proof whereas the defense does not have to present a case.
Still, openings and closings provide each side an opportunity to connect with jurors.
Warren A. Brown, a Baltimore defense attorney for 15 years, says he tries to keep his finger on the pulse of the jury as he delivers his often emotionally charged closing arguments. He says he'll sometimes see jurors bob their heads when he makes a point. Other times, he says, he'll become angry if he thinks a juror is not paying attention.
Either way, he says, a defense lawyer must be able to sense what the jury may be thinking and poke as many holes in the prosecution's case as possible.
"What I try to do during closing is to make the bull's-eye the prosecution has to hit as small as possible," he says. "I want the jury to understand that the only way they can convict is if prosecutors hit that bull's-eye ... if there are no reasonable doubts whatsoever."
During his closing today, Greenspun faces an extra challenge, Brown and other lawyers say. Because Muhammad represented himself during the opening statements, closing arguments will be Greenspun's first and only opportunity during the trial phase to connect with jurors.
"The fact that Mr. Muhammad delivered opening statements and the content of his opening statements ... it's the 800-pound gorilla sitting in the courtroom," says White, the former federal prosecutor. "He created a gigantic problem for his lawyers, one that they really have to address during closing arguments."
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