You've heard by now that defense lawyer Theodore Wells cried at the end of his closing in the Lewis Libby trial. "I give him to you. Give him back to me," he told the jury. "With that," said the New York Times, "Mr. Wells teared up, sobbed audibly and sat down."
Prosecutor Patrick Fitzgerald had an intense moment too, but it was sarcastic, not sad. Repeating words Wells had used often in his closing, Fitzgerald shouted, "Madness! Madness! Outrageous!" startling the courtroom.
Different emotions, different reactions
How did these two outbursts play? If you're willing to treat the flock of writers in the Libby courtroom a little like a shadow jury (that is, statistically unpredictive but still informative), they'll give you an answer. Fitzgerald's outcry was great; Wells's crying was weird.
I can only confirm that it came across as contrived, bizarre, abrupt, as if he found himself at the very end of his time, reminded himself he had to do the crying schtick, and threw it out there almost as an afterthought, half-assed, an unexpected choking as if with overwhelming emotion.
and riveted by Fitzgerald:
"Madness! Madness! Madness!"
When Pat Fitzgerald got up, thundering those words in mock outrage, he grabbed all the energy floating about the courtroom like static electricity, and held it to himself, never to surrender it, save during a brief, late sidebar we'll get to in a minute. This is not a reflection of my personal experience: this is my observation of what happened all around me.
I don't quite know how to explain it, other than to say Pat shocked people. His demeanor throughout the trial had been fairly direct, occasionaly subtly snarky or self deprecating, but he had not once raised his voice. . . until that moment. It jarred people. It commanded attention. Fitzgerald became a one man spontaneous passion machine from that point on. Yes, there were moments when his voice modulated, but his intensity never wavered. His command of the details of exhibits, including exhibit numbers, was unmatched by any other attorney in the case: he rattled them off like the names of his friends. . . . Fitz laid out a long, proper drubbing, and the jury, most of all, hung on every word and breath.
This time it's not bias
Pachacutec is biased and proud of it. His bio says he "works during fleeting sober moments to build a vibrant progressive movement sufficiently strong and sustainable to drive a pointed stake through the heart of American 'conservatism' forever," and his post on the Libby closings admits cogently the challenge of being "circumspect enough to know to the way your own biases or idiosyncratic reactions can color your own perceptions").
So I thought I'd write an interesting piece on the interplay of bias and presentation -- how bias makes us rate the presentation better or worse, but objectively good or bad presentation decisions help make us biased, a which-came-first-the-chicken-or-the-egg kind of thing. That piece is out there to be written, but I can't write it about Ted Wells crying. When I canvased other shadow jurors -- er, bloggers and mainstream journalists -- who saw the closings, they were uniformly derisive. Some samples:
Dana Milbank in a Washington Post opinion piece said Wells delivered these lines to "the puzzled jurors" and then "sobbed loudly and went back to his chair, where he sat staring at the floor and emitting the occasional sniffle."
Firedoglake "live blogger" Marcy Wheeler, famous in the blogosphere for her near-transcripts, said "Give him back" was "[f]ollowed by an abbreviated choke, a catch of his breath. Without the crescendo, it sounded more like a death rattle than any truly felt emotion. And compared to the real rage Wells had shown earlier in the day, it looked fake. Utterly, completely fake."
I'm sure there was somebody in the courtroom who was moved by Wells's tears, and I'm sure it's posted somewhere on the Internet, but I couldn't find it, and I'm not surprised.
I may be naive, but I bet the tears weren't fake. Ted Wells doesn't need me to tell him it's not safe to cry in court. Crying happens; I cried listening to StoryCorps this morning. But people expect lawyers, like judges and politicians, to maintain emotional control, and they can be harsh when lawyers cry.
Related notes from the news:
1. Speaking of shadow jurors, if you're lucky enough to have the budget for them, keep an eye on them. The really fun blog Trial Ad Notes informs us here about a Washington Court of Appeals decision in which the defendant complained, among other things, that the plaintiffs' shadow jurors ate lunch in the real jury lounge, and one of them asked a real juror about parking validation. The verdict stood, but it couldn't have been fun for the plaintiff to write that part of the appellate brief.
2. If you want to start on the Anna Nicole Smith crying-judge story, here's the Washington Post article, and you can follow the delighted blogs out from there.
(Photo by Sean Mason at http://www.flickr.com/photos/smason/131126989/)