only time he showed the depth of his feelings was when he said that the last month before the robbery was like experiencing water torture: “The drops of water were falling onto my forehead, one drop at a time, until I felt like I could no longer bear it.”
By the end of the direct examination, he had come across to the jury as the person he was, a man of quiet dignity who had temporarily cracked under pressure.
The cross-examination by the prosecutor was skilled and effective in showing that Steven understood the nature and consequences of his actions, but it did not shake our position that he was not in control of those actions. The one dramatic moment took place when the cross-examiner asked Steven if he thought he was insane at the time he robbed the bank. Steven, refusing to be stereotyped as a dangerous nut, said, “No, I was not crazy. But, I was not myself.”
Closing argument was scheduled for the following day. In modern courts lengthy orations are a rarity. Judges, particularly federal judges, strictly enforce time limits on attorneys. The lengthy O. J. Simpson case was an aberration. Most criminal trials resemble an assembly line, with the judge as foreperson, pushing the attorneys to finish the case as fast as possible so he or she can crank out another case. Judge Weigel warned us to keep our closing arguments under an hour. Actually, this was not unfair. In a week-long case—most criminal trials take less than a week—forty-five minutes to an hour and a half is usually plenty of time. The idea is to communicate with the jurors, not to bore them.
There are many goals of a closing argument. Among the most important is organizing the evidence into a coherent whole that supports your theory of the case—your explanation of why the evidence points to the innocence of the defendant. Passion is also a component of a closing argument, but it should be combined with logic and common sense. You have to make the jurors want to decide in your client’s favor. In Steven’s case I knew that I had to create a desire in them to find him not guilty. I also knew that I had to give them reasons to acquit. Both desire and rational arguments were essential so that when they went into the cauldron of the small, uncomfortable jury room, the jurors who wanted to acquit would have logical reasons to use in persuading the other jurors.
Preparing a closing argument is an exciting part of the trial experience. A good lawyer will have developed a theory of the case well before the trial begins. She will also be familiar with the prospective witnesses and their testimony and will have inspected the physical evidence. Therefore, she can and should write 70 percent of the closing argument before the trial begins. After the testimony ends in the actual trial, the attorney can finalize the argument, making changes consistent with how the evidence was presented and capturing the tone of the trial in argument.
That night, after my family was asleep, I sat down at the dining room table and put on my music tapes labeled “For Closing Argument” to energize and inspire me. I listened to Paul Robeson, the man after whom I was named, sing folk songs like “Joe Hill” and “The Warsaw Ghetto.” I played Jimmy Cliff’s reggae beats “The Harder They Come” and “Born to Win,” and George Winston’s version of Bach’s Jesu Joy of Mans Desiring. By midnight, I had finished writing the argument out on my yellow legal pad. Then I stood up and practiced delivering it aloud. The argument was a little less than an hour long. I delivered it aloud in its entirety two times, and at two o’clock in the morning I went to bed, so exhausted that sleep quickly overcame my adrenalin.
The next morning tension filled the courtroom. The bank robbery, Steven’s flight to Georgia, the attempted guilty plea, the two months of intense preparation, the week of witnesses and argument, the specter of five years in prison—all of the elements that make a criminal trial an authentic human drama came together the morning of closing arguments.
The U.S. attorney speaks twice; he goes first and last because in a criminal trial the state has the burden of proof. Sandwiched between his two speeches to the jury is the defense’s one chance to persuade them. The prosecutor, John Milano, was excellent. The essence of his argument was that the rational, calm acts of the defendant in robbing the bank were indicative of preparation, knowledge, and purposeful thought, not a sign of insanity.
Prosecutors will often try to influence the jury’s emotions by suggesting that if they acquit the defendant it will cause an increase in crime. The message is that they must find the individual defendant guilty in order to deter hordes of other criminals. This type of argument plays on the fears of the jurors and finds fertile ground in insanity cases. The prosecutor will tell the jurors that if they accept the logic of the defense, then all kinds of criminals will commit horrible crimes, claim insanity, and get off. This was just the kind of argument Van Buren made in the William Freeman trial. The U.S. attorney in Steven Robinson’s case took the same tack. He forcefully argued that if the jurors accepted the defense’s theory they would be exonerating all poor, angry, frustrated black men who rob banks.
Milano finished the first part of his closing and sat down next to the FBI agent.
Judge Weigel looked at me and said: “Mr. Harris, are you ready to proceed?” I had already stood up and was walking toward the jury box. I stood about six feet from the jurors and walked back and forth every once in a while as I talked to break up the monotony that comes with speaking to an audience for more than a few minutes. There are many outstanding speakers among trial lawyers, but few Sidney Poitiers or Richard Burtons. The idea is to be oneself, not to get lost in formal debating style. The idea is to communicate with those twelve people who are at the heart of our greatest democratic institution: the jury—twelve people chosen basically at random from the general community. Unlike many European systems where professionals trained in the law decide the case, the American jury consists of twelve lay people who are called upon and given the right to judge another human being.
I tried to speak to their common sense, logic, and compassion. “There is no such thing as cblack psychology/” I said. “In order to examine Steven Robinsons behavior, we look at three factors. One, basic psychological principles which apply to all people regardless of skin color. Two, the historical experience of black Americans. Three, the unique, individual life experience of Steven Robinson. We must merge all three in our attempt to explain the actions of Steven.
“In order to truly understand this case we must understand the concept of black manhood. The black family was attacked by slavery. This was no accident; there was a conscious decision to separate families and separate people from the same tribes. In modern times, unemployment, the difficulty that black men in particular have in obtaining and keeping jobs, continues to weaken the family. Black manhood consists of providing for one’s family, in succeeding in the outside world.3 It is grounded in self-respect and self-worth.
“Steven taught at the Malcolm X School. Why is Malcolm X such a hero in the black community? Let me quote to you from actor Ossie Davis’s eulogy at Malcolm X’s funeral: ‘Malcolm was a man! White folks do not need anybody to remind them that they are men. We do!. . . Protocol and common sense require that Negroes stand back and let the white man speak up for us. . . . But Malcolm said to hell with that! Get up off your knees and fight your own battles. That’s the way to win back your self respect!’”
I walked to the far end of the jury box and continued. “Of course, self-respect is important to all people. Of course, providing for one’s family is important to all of us regardless of the color of our skin. But for a black man, given America’s racial past, it is an essential part of his identity. It defines him.
“The prosecutor has argued that by finding Steven Robinson not guilty you let all black bank robbers go free. This case is not about all black men who rob banks. You are listening to the evidence of that man’s life who is sitting right over there. He is not a hypothetical person. He is real. People commit crimes for different reasons. Our defense is not a simplistic racial defense. You are sitting in judgment of one man, one individual.
“To
