Worst. Closing Arguments. Ever.
Written by John G. Browning
We all know that trial lawyers in Texas have fairly wide latitude during closing argument. As you’re summarizing the evidence in the case and how it should lead the jury to find in favor of your client, you can say almost anything. You can wax poetic, tug at jurors’ heartstrings, and even summon the righteousness of an Old Testament prophet. But while younger lawyers sometimes ask me what they should do during closing argument, I rarely get any questions about what not to do in closing argument. So here are a few helpful, if tongue-in-cheek, pointers:
Don’t Threaten to Kill the Jury
This rarely works, as Richard Glawson, of Boston, can attest. In 2007, Glawson was on trial for a number of serious charges stemming from a 2001 crime spree, including carjacking and assault with a deadly weapon. Representing himself at trial, Glawson began his closing argument by stating, “Ladies and gentlemen of the jury, I’ll kill all of you if you find me guilty of any one charge, and that goes for your family, too.” Apparently, this novel “threaten the jury” approach wasn’t a new one for Glawson. His previous trial had ended in a mistrial after Glawson actually punched an elderly juror (afterward, new charges of battery and juror intimidation were added to what Glawson was already facing). Glawson also was accused of kicking a Suffolk County Superior Court officer in the head during what was described as a “courtroom outburst.” Not surprisingly, Glawson was convicted on nearly all charges and was sentenced to 45 years behind bars (or “bahs,” as they say in Boston).
Don’t Fake a Heart Attack—Especially if You’re Really Bad at
Keison Wilkins was on trial in Montgomery County, Ohio, in June 2008 on a variety of charges, including felonious assault. The Dayton man was representing himself, and as he began his closing argument, he must have sensed that he needed a “Hail Mary” to even get a mistrial. So, he faked a heart attack, grabbing at his chest and then collapsing to the floor. In a rather entertaining courtroom video that went viral (and is still viewable on YouTube), skeptical deputies react, but it’s clear that neither the judge nor anyone else in the courtroom is buying Wilkins’ performance. A nurse is summoned, who quickly finds nothing wrong with Wilkins. Wilkins continues the act even after he’s returned to the defense table, but everyone just looks bored. In a development that shocked no one, Wilkins was found guilty and sentenced to 42 years in prison. I guess that leaves him a ton of time to brush up on acting.
Don’t Use a Hand Grenade
While I’m normally a big fan of the value of demonstrative aids during closing argument, I’m afraid I have to draw the line at explosive devices. But apparently Hutchinson, Kansas, criminal defense attorney Sam Kepfield disagrees. In November 2009, Kepfield was representing a defendant, Anastasia Daily, on charges of forgery and theft. Daily’s defense was that a co-defendant had threatened to hurt her daughter and kill her dog if she didn’t go along with the scheme that resulted in the charges. To help illustrate for the jury the concept of acting under the compulsion of an imminent threat of bodily harm, Kepfield used an unconventional method, to say the least, during his closing. He set a grenade down, first on the ledge of the jury box and then on the prosecutor’s table before suddenly pulling the pin and asking the jurors, “Are you afraid now?”
Assistant District Attorney Amanda Voth later said she was too surprised to say anything, but Judge Richard Rome ordered Kepfield to get the grenade off the table. The stunt apparently didn’t sway the jury, since they found Daily guilty after deliberating for only 15 minutes. But Kepfield did make an impression on the local sheriff’s office and the Kansas Attorney General’s office, which opened an investigation after the incident was reported by the judge. And although Kepfield would not face criminal charges, the question remains: Which was the bigger dud, the dummy grenade or his closing argument?
Don’t Spontaneously Combust
Finally, we’ve all probably had the experience of listening to an opposing attorney in court and secretly wishing that “liar, liar, pants on fire” wasn’t just a phrase. But then again, we never got to witness the bizarre turn of events in March 2017 in a Miami courtroom, when then-28-year-old lawyer Stephen Gutierrez was making his closing argument—only to have his pants catch on fire. Gutierrez was defending a client, Claudy Charles, who was accused of intentionally torching his car. Gutierrez had earlier tried to argue spontaneous combustion as a defense. According to Gutierrez, during his closing he noticed that his pants pocket felt hot (he had several small e-cigarette batteries at the time). With the heat intensifying into flame and smoke, Gutierrez ran from the courtroom straight to the men’s room. After dousing the batteries in water, he returned to the courtroom, pants singed but unharmed.
Gutierrez insisted that he didn’t stage the fire as a courtroom stunt but that didn’t prevent prosecutors from launching an investigation that concluded the young lawyer had likely ignited the battery. In 2019, Gutierrez pleaded guilty to Florida Bar violations, including filing a bogus insurance claim related to the arson case. In November 2020, Gutierrez’s license was suspended for 91 days. And in February 2021, the lawyer was arrested on a felony cocaine charge.
So, the next time you’re preparing for a closing argument that will “kill,” when you’re “on fire” and ready to drop some bombshells, don’t take it literally.TBJ
JOHN G. BROWNING
is a former justice of the 5th Court of Appeals in Dallas. He is the immediate past chair of the State Bar of Texas Computer & Technology Section. The author of five books and numerous articles on social media and the law, Browning is a nationally recognized thought leader in technology and the law.