Lawyers' closing arguments show a flair for the dramatic

"We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding 12 men every day who don't know anything and can't read."

-- Mark Twain

The dramatic, over-the-top rant from an excited lawyer, a staple in TV courtroom thrillers, has edged into the mainstream, meaning fewer trials end with a logical closing argument, legal experts say.

The shift, according to local judges, lawyers and law professors, has meant the higher courts more closely scrutinize closing arguments as a check against verdicts doled out by inflamed jurors.

And jury pools influenced by TV and movie court dramas also call for an increased use of technology, common in civil trials but only edging into the criminal courts.

It's not that the art of the closing argument is dead, the experts say, but a change in jurors' expectations tends to prompt prosecutors and defense attorneys to pull out the stops to try to win their case.

"The juries definitely want more action in the closing argument," said DePaul University law professor Leonard Cavise. "They want visuals, sound effects. They want lawyers jumping on tables."

The closing arguments take place after evidence has been presented at a trial and typically begin with statements from the prosecutor or plaintiff's lawyer, who is entitled to a rebuttal after the defense's argument.

The spectacle is a debate associated with late oratorical giants such as Clarence Darrow and Johnnie Cochran Jr. Closing arguments are studied and honed throughout an attorney's career as a talent that all learn but few master.

Courtroom seats are often filled for closings and many spectators are other lawyers, jotting notes of a colleague's argument for use in their own cases someday. The phrase, "Deals made in Hell don't involve angels," is often recycled in various form.

Kane County State's Attorney John Barsanti frequently lectures lawyers on how to prepare and deliver a closing, but he doesn't watch anymore. Barsanti said closing arguments are no longer tools for lawyers to try to persuade a jury.

"You don't get much argument anymore. … That's the heart of it: persuasion," Barsanti said. "There's just a lot of yelling."

The "CSI effect" raised jurors' expectations about the types of evidence, such as DNA or other forensic marvels, prosecutors should provide to prove their case. And courtroom dramas have had a similar effect on how attorneys -- especially prosecutors -- act during trial.

Donald Hudson, the chief judge of the 16th Judicial Circuit, also notes a shift toward the dramatic, in part because juries now expect the court to mimic what they've watched on TV, and because crime is heavily covered by the press.

"There's a certain, subconscious urge to reach the level of what we see on TV," Hudson said.

The higher courts are paying attention to closings and in Illinois have ruled prosecutors are barred from trying to anger or prejudice jurors without addressing the issues in a case.

Last year, Jacoby Wheeler won a new trial in his Decatur murder case after state Supreme Court justices found fault in the "us-versus-them" theme used by a prosecutor, who also took jabs at the defense and even invoked the Monica Lewinsky scandal.

"A solitary figure appears in Court bearing the burden of avenging another's death … justice only requires a solitary champion because truth and justice is not a load as heavy as it appears," according to an opinion last June criticizing the closing, delivered by Richard Current, then a Macon County prosecutor.

On May 8, the state's lawyer disciplinary panel leveled a complaint against Current, in part accusing him of using the closing to seek a conviction, not justice. Attempts to contact Current were unsuccessful.

Paul Glaser, with the state's appellate defender's office, said prosecutors frequently push the envelope at closings, but it's not often that they cross the line and have their verdicts overturned.

The higher courts can spot a dubious closing, but they act only if the arguments egregiously affect the outcome of a case, said Glaser, whose office deals with roughly 90 percent of appeals in Illinois.

The flair for the theatrical during closings comes at a time when attorneys also are adding the use of technology to illustrate evidence at trial and bolster their final argument.

For example, the defamation trial in 2006 that pitted state Supreme Court Justice Bob Thomas against a small-town newspaper and its columnist saw videotaped depositions mixed in amid witness testimony.

And earlier in that year, an Elgin mother's shaken baby trial saw the use of computer animation to show her child's brain injuries, and a seldom-used PowerPoint production highlighted the closings.

Jack Donahue, a Lisle defense attorney, said emotion-grabbing materials -- charts, graphs and PowerPoint slides -- have increased, but instead of closings shifting to the theatrical, the court veteran sees the opposite taking shape.

"The impact of closing statements has changed quite a bit," Donahue said. "But it seems to me as if it's more sterile, because jurors are so focused on the facts."

Geneva lawyer D.J. Tegeler agrees, saying juries nowadays are keyed on the details of a trial.

"Theatrics are nice, but juries don't want their time wasted," Tegeler said. "When you're hoodwinking them, juries know that."

Cavise said the evolution of the closing is part of a natural change in courtroom tactics, which for attorneys, in addition to their clients, is a high-stakes game of win or lose.

"This is war. It's not just TV. It's the nature of the adversarial system," Cavise said, adding, "Only about 2 percent of cases go to trial, so when they are, you go for it."

Excerpts of some headline-grabbing closing arguments:

"Marilyn Lemak, as she sits here, remains trapped in the wreckage of her own mind. We're not asking you to exonerate. Marilyn Lemak will always remain unextricated from the unimaginable nightmare she created with her own hands."

-- Attorney Jack Donahue during the 2001 murder trial of Marilyn Lemak

"These acts weren't done by the person who sits here today. These acts were done by a man who thought he was the hatchet man."

-- John Barsanti, then a private attorney, at the 2003 attempted murder trial of Edward Edwardsen

"In short, Ryan sold his office. He might as well have put a 'for sale' sign on his office."

-- Joel Levin, an assistant U.S. attorney, at the 2006 corruption trial of former Gov. George Ryan

"You don't bring a pocket full of bullets to do an armed robbery. You do that for something way bigger."

-- Linas Kelecius, a Cook County prosecutor, at Juan Luna's 2007 trial in the Brown's Chicken slayings

"Do you accept or reject the government's ability to take away our right to make our own decisions about our safety? To click it by coercion becomes the certain death of my soul."

-- Kenneth Prazak, defending himself in 2005 in a McHenry County court on a citation for violating the state's seat belt law