What makes a good closing argument? Jurors in the Karen Read retrial are about to find out.

Boston Globe

18 hours ago

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TODAY'S STARTING POINT
When prosecutors wrapped up the first trial of Karen Read last year, they declared that 'all of the testimony' indicated she had caused the death of her boyfriend, John O'Keefe, during a blizzard in Canton in 2022.
That closing argument, for at least some jurors, wasn't convincing; after the jury deadlocked and failed to reach a verdict, the judge declared a mistrial.
Now, as Read's second trial
'It's equal parts art and science,' said Chris Dearborn, a professor at Suffolk Law School. 'It's about persuasion, trying to tell a better story than the other side. And some of those basic principles of persuasion are really fundamentally no different, whether it's a barroom argument, a closing argument, or a toast or speech.'
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Several attorneys and legal professionals who spoke to the Globe were unanimous: one of the worst things that attorneys can do in their closing arguments is appear underhanded or insincere.
'If you do something that loses you credibility, it really can hurt you,' Dearborn said. 'On close cases, on the margins, being the side that the jury trusts or likes the most can make a difference.'
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Losing credibility can happen easily by failing to mention what Dearborn referred to as 'bad facts' — ignoring evidence or threads that are detrimental to your case.
Some of those facts
'In his opening statement, Hank Brennan never talked about Trooper Proctor,' Dearborn said. 'I think it'll be a mistake if he doesn't own that issue in his closing. Because it can look like he's trying to hide something.'
Even if the facts of the case are fully and accurately addressed, attorneys still run the risk of appearing to be insincere.
'If you are not a person who raises your voice, then don't do that in the closing,' said Boston-based attorney J.W. Carney, Jr. 'Or if you are a person who's sometimes a little insecure, it's okay, you can show that. The jurors have gotten to know who you are through the trial. You don't want to change that personality.'
Good lawyers balance their own personality, whether flashy or more methodological, with a measure of accessibility when speaking to jurors.
'You have to be very mindful of the jury's intelligence and be very careful not to potentially insult them or suggest that they don't have the ability to be, both individually and collectively, discerning,' said attorney Brad Bailey.
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At the end of the day, that means delivering the argument like a regular person, clearly and articulately without being overly wordy or extravagant.
'You should talk like you are at Thanksgiving dinner, talking to your grandmother,' said Jack Lu, a retired Superior Court judge and lecturer at Boston College Law School. 'Zero legalese, zero police language, and zero lawyer language.'
That's not to say there's no room for emotion, he added.
'If there is not blood on the floor, meaning rhetorically, at the end of the closing argument, you have not used raw emotion,' Lu said.
Throughout the trial, attorneys from both teams have been making note of what testimony or threads of evidence resonate with jurors, Bailey said.
'You can bet there's a lot of conversation behind closed doors about what seemed to work,' he said. 'You may see direct eye contact being made with particular jurors that could have reacted to certain things.'
Carney, who worked alongside Brennan while representing James 'Whitey' Bulger more than a decade ago, said the lead prosecutor in the Read case would address the jurors directly.
'Some lawyers act as if they're giving a closing argument as an orator in the Roman Coliseum,' Carney said. 'Hank talks to individuals in the jury. What he's doing is speaking to a single juror at a time. And that juror during the deliberations will remember the point that Hank gave.'
The defense, meanwhile, will seek to convince the jury that the prosecution did not meet the burden of proof in establishing Read's guilt.
'They not only have to lay out why they believe that the crimes have not been proven and why they think the jury ought to have multiple reasonable doubts, but they also anticipate upfront and try to rebut in advance what they believe the prosecution is going to say [in the rebuttal],' he said.
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Carney pointed to one recent case —
'When it was done, I spoke to my two partners and said, 'Here is the website on which you can watch [the attorney's] closing argument, it's brilliant,'' he said.
Dearborn said the closing arguments from Read's first trial 'were a little too long, a little bit too scattershot.' But there were a few key phrases
— particularly from the defense — that he said probably resonated with the jury.
'Those are the things that sometimes jurors talk about because there's only so much attention span out there,' he said. 'So if you're not aware of that when you're talking to a jury, you can lose the jury.'
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