Over The Line and Memories Of A Fat Erroll Flynn

Closing argument by defense counsel in a medical malpractice case was improper and prejudicial requiring a new trial per a recent decision of the Rhode Island Supreme Court.

The argument

Here, the comments made by [defendant] WIH exceeded the proper bounds of closing argument and were plainly improper. Defense counsel, in no uncertain terms, directed the jury to send a message. He specifically asked the jury to, by their verdict, “tell [WIH] and their NICU to continue to take in the sickest kids” and newborns. This comment was calculated to prejudice the jury against plaintiffs and bring about “exaggerated sympathy” for WIH. Yammerino, 416 A.2d at 701.

The harm

After a careful review of the record, we conclude that the trial justice erred in finding that WIH’s closing argument did not result in prejudice to plaintiffs. The trial justice herself found that defense counsel’s closing argument was “certainly over the top[,]” and “he went to the line—perhaps over it—in his argument.” She characterized the argument as “forceful and colorful[.]” However, the trial justice then proceeded to find that the argument “did not influence the jury because the weight of the evidence supports the verdict.”

The trial justice failed to properly perform the second step in determining whether counsel’s closing argument warrants a new trial. At that point, her function was to determine whether the jury was influenced by the improper remarks, not whether the weight of the evidence supported the verdict.

Not a one-off

Moreover, the trial justice’s admonitions to the jury were insufficient to neutralize the prejudicial effect of defense counsel’s comments. The trial justice noted that she, “on no less than four occasions[,] advised the jury that attorney statements are not evidence and should not be considered evidence” and that “[t]he jury was instructed that it had to follow the [c]ourt’s instructions even if they did not agree.” These general instructions failed to directly address the comments made by WIH in its closing argument and, in our judgment, were insufficient to dissipate the influence of the improper remarks.

The trial court’s “colorful” remark immediately bring to mind the legendary prosecutor and later defense counsel Kenneth  Michael Robinson.

Robinson is viewed by fellow members of the bar as “a premier trial attorney,” said Thomas V. Mike Miller Jr., president of the Maryland Senate who practices law in Clinton. Miller said Robinson dabbles in “a lot of cornpone” and “courtroom dramatics, but is not a person to be taken lightly.”

Robinson, whose swashbuckling courtroom behavior led him to describe himself in a 1980 Washington Post interview as being “sort of a fat Errol Flynn,” has defended such notables as former representative John Jenrette Jr. (D-S.C.) during the Abscam investigation and accused Washington drug kingpin Linwood Gray, among others.

When I was a youngster coming into the D.C. Bar in the late 1970s, Kenny was packing the galleries in his closing arguments.

Best free ticket in town.

He was famous as a prosecutor for establishing the D.C. law on prosecutorial misconduct in closing argument.

The apocryphal story then was that the judges knew that reversal was likely but that it was just too entertaining to stop him.

Actually, the best free ticket in D.C. back then was Edward Bennett Williams.

I got to see his closing argument in this notable case.

Some people live up to your expectations; some do not.

EBW was the best trial lawyer I ever saw. (Mike Frisch)