Can You Channel the Dead in Closing?
It is my firm belief that every possible form of performance art has found its way into a closing argument. While many lawyers deliver presentations that are duller than dirt and could not possibly convince anyone, others take things in a very different direction – performing slight-of-hand magic tricks or attempting to transform the courtroom into a church or a theater. I’ve never heard of anyone pulling out a guitar and singing, but I’d wager good money that it’s happened somewhere.
We try a lot of our cases in the Southern District of New York. If you mostly practice there, you might be skeptical about attempting anything truly creative in closing argument. But it’s worth remembering that this is a big country with a lot of courthouses. While many of them look similar, the allowable practices within vary tremendously. And if a rhetorical technique works well, it’s highly likely to be tried in every court that will tolerate it and probably a few that won’t.
Ouija boards have been around since the late 1800s and the idea of using a séance or a medium to speak with the spirits of the dead is likely prehistoric. The Old Testament tells the story of the Witch of Endor, a medium used by King Saul to contact the dead prophet Samuel for advice in his conflict with the Philistines. [1] Like most sorcery in the Bible, this went poorly for King Saul. [2] But given the number of trials that involve wrongful death, it would obviously be useful to conjure or otherwise channel the spirits of the dead to provide material testimony.
But since sorcery does not actually work [3] you aren’t allowed to channel a dead person to speak through you in a closing argument. Right?
Well, maybe…
Senator John Edwards was unsuccessful in his campaigns for the presidency and vice presidency. His political career ended in indictment and scandal concerning alleged campaign finance violations arising from an affair. But before he was ever a politician, Edwards was a phenomenally successful trial lawyer.
Practicing in North Carolina, Edwards was one of the most feared plaintiff’s lawyers in the state. While he did not exclusively practice personal injury law, he was known for obtaining large personal injury verdicts, particularly in fetal injury cases. In his career, Edwards was involved in at least twenty cases alleging medical errors made during delivery. And he had a fairly unorthodox technique in arguing such cases. As the New York Times put it:
In 1985, a 31-year-old North Carolina lawyer named John Edwards stood before a jury and channeled the words of an unborn baby girl.
Referring to an hour-by-hour record of a fetal heartbeat monitor, Mr. Edwards told the jury: ''She said at 3, 'I'm fine.' She said at 4, 'I'm having a little trouble, but I'm doing O.K.' Five, she said, 'I'm having problems.' At 5:30, she said, 'I need out.' ''
''She speaks to you through me,'' the lawyer went on in his closing argument. ''And I have to tell you right now -- I didn't plan to talk about this -- right now I feel her. I feel her presence. She's inside me, and she's talking to you.'' [4]
The jury appeared to accept the conjured testimony and awarded a $6.5 million verdict.
But Edwards is far from the only lawyer to use “channeling” as a closing argument tactic. It even pops up from time to time in criminal cases. For example, in Drayden v. White, [5] the Court of Appeals for the Ninth Circuit reviewed a habeas petition from a man convicted of first-degree murder. The defendant had gone home with another man, ostensibly for sex, but had strangled him once they arrived. Channeling the victim during closing argument as a kind of rebuttal witness against the defendant’s testimony, the prosecutor literally sat himself on the witness stand before delivering a speech, as the victim:
My name was Jerry Quinton, and I was 48 years old the night that I was strangled to death.
* * *
I found John Thomas Drayden. I found him coming out of Tosca's, and we started a conversation. I asked him, in the course of the conversation, to come home with me, and he said “yes.”
When we got home I walked through the door and I started to hang my coat up, because I was there expecting to have sex. And the next thing I knew I was hit from behind and driven to the floor. I was beaten and I was rendered unconscious. And thank God for that. I didn't know what happened to me next, when Mr. Drayden put that cord around my neck and strangled the life out of me. I listened to his testimony about how we walked into the living room and I turned on music for him and offered him something to drink and how I made phone calls to BART for him. And that's a lie.
* * *
Ladies and gentlemen, what he did to me was he murdered me. It was not self-defense. He wasn't angry. I don't know why, having listened to the testimony, he came to my apartment with me. But I do know that the reason that he told you he came there was a lie.
On review, the Court of Appeals tut-tutted a bit about this performance, stating that “[w]e agree that the prosecutor engaged in misconduct when he delivered a soliloquy in the voice of the victim” and that “the prosecutor seriously risked manipulating and misstating the evidence by creating a fictitious character based on the dead victim and by testifying in the voice of the character as if he had been a percipient witness.” [6] But while the Court of Appeals used many harsh adjectives in describing the prosecutor’s conduct, it nevertheless found that “the prosecutor's closing argument did not render Petitioner's trial fundamentally unfair” and that no new trial was necessary.
But while the Court of Appeals for the Ninth Circuit considered channeling a “deplorable” practice, not every appellate court even considers it noteworthy. For example, the Supreme Court of Montana reviewed a case in which a “channeled closing” was just the start of a strange courtroom adventure. In Heidt v. Argani, [7] a plaintiff’s lawyer trying a medical malpractice case channeled a spirit so effectively that it literally made a juror physically ill. As the Montana Supreme Court put it:
On the fifth day of trial Heidt's attorney presented his closing argument to the jury. Most of the argument was delivered as a first-person narrative by Heidt's attorney who assumed the persona of Heidt's deceased husband to recount the events leading to his death. On appeal Heidt's attorney describes his presentation as “[c]hanneling ... as though he was the decedent.” After an extended closing, Heidt's attorney began to “channel” a description of the death of Heidt's husband, using phrases such as: “Then, oh my God, I'm dying.” He then began describing being autopsied, including a description of being cut open and of his sorrow at not getting to see his children grow up.
This got to be more than some could bear. One of the jurors announced that she was “not okay” and that she thought she was going to pass out. She attempted to leave the jury box and the court called a recess. [8]
Ultimately EMTs were called, and the juror was taken to a hospital. On review, the Montana Supreme Court considered whether the events of the closing required a mistrial to be declared. Oddly enough this was not because the plaintiff’s attorney had physically sickened a juror through the reckless summoning of tortured ghosts. Rather, the court was concerned that the jury was so impressed with the defendant physician – who had attended to the sick juror for fifteen minutes before the ambulance arrived – that it could no longer adjudicate the case fairly. Noting that while this was a “rare occurrence,” the court noted that three prior courts to consider the “party physician attends to sick juror” issue had all concluded that a mistrial was required and remanded the case for a new trial.
So, what does this mean for the would-be attorney necromancer? Channeling is clearly permitted in at least some courts, making it unambiguously safer to speak with the dead in closing than to talk about insurance or jury nullification. Obviously, it is not going to work well everywhere –the Ninth Circuit panel in Draden were not fans and many trial judges may feel the same way. But if you’re in a more flexible court and you have a case where it would be helpful for the dead to speak, it’s worth considering allowing them to do so.
[1] 1 Sam. 28:3-16.
[2] Id.
[3] Or, if the Old Testament is to be believed, is a really bad idea.
[5] 232 F.3d 704, 711-712 (9th Cir. 2000).
[6] Id. at 712-713.
[7] 352 Mont. 86 (2009).
[8] Id. at 87.
