I still can't tell whether I just heard one of the best closing arguments of my career or whether it was one of the worst arguments conceivable. The jury is, literally, still out.
My client was accused of murder, attempted murder and assault. He shot two women in his kitchen one night. The women were at the marital home with his common-law wife. His wife and her friends decided to leave. One witness testified they were going out to buy snacks. The client's wife testified they were going out to buy Dutch Masters cigars, so that they could come back and make blunts, i.e., cigars stuffed with marijuana.
My client did not want his wife to go out. It was 1:30 a.m. He told her he did not want her to go. She said she was leaving. They argued. He demanded she leave her car keys; she had, after all, been drinking and had, at a minimum, popped an Ecstacy pill that night. She left. She left and was walking down the driveway with her friends. My client threw her clothing onto the driveway and told her not to come back.
One of his wife's girlfriends took umbrage with this. She went back to the house. There was spitting, shoving, a thrown beer bottle. In the end, my client was in a corner of his kitchen when he shot one of the women and wounded another. He testified that he was under attack and feared for his safety. My client's DNA is under the decedent's fingernails.
This is a hard case to defend. No question about it. At least one the victims was stoned. My client had been drinking. An ugly, ugly night with horrible consequences.
The jury in this case was two thirds women. Here is what the state argued, in sum:
You heard in voir dire the defense ask what you thought of the saying that a man's home is his castle. Translated that means women are mere chattel. Indeed, saith the prosecutor, other Americans of both genders were property for a long time in this country. (Obligatory nod to the African-American juror.)
The defendant here was jealous that his wife was going out with her girlfriends. He lured his wife back into the home by throwing her clothing on the driveway. He then shot her girlfriends because he could not intimidate and terrorize them the way he could her.
Did I hear this right? My client was jealous, perhaps sexually jealous, of the women my client's wife was partying with? When he threw the clothes out he used it as bait to lure all three back in so he could kill the other two? This sounds like a bad melodrama reflecting trailer life on the Isle of Lesbos. Where did this stuff come from?
After telling the jury that it need not find motive to convict, which is correct as a matter of law, the state then imported this libidinal motive from well beyond the bleechers in left field. (And while I am on the topic of sports, do not let me forget the cross examination of my client about his playing pick up basketball: since he played basketball without referees and is short, he knows how to avoid bigger bodies. Why, it was suggested, he could have picked and rolled his way out of the kitchen.)
How the state transformed this shooting into a manipulative plan to control the wife is beyond me. The women left. The gun was in arm's length when they left. How does his wife's walking out the door constitute his exercise of control? And what of this blatant and blunt appeal to race and gender: A man's home is his castle a code word for misogyny? What next, the Fourth Amendment a tool of sexism?
The argument seemed dumb when I heard it yesterday. It still seems dumb today. But what I think doesn't matter. Perhaps the state knew more about the jury than I knew. Perhaps this silent appeal to the the flip-side of misogyny will work. If it does, I concede that I did not see this coming. But then, I am a man.... Sometimes when I see a cigar all I really see is a cigar.
