Every writer needs a good editor. And so does every prosecutor.
Assistant U.S. attorney Tim DiScenza closed out the government’s case against former state senator John Ford Tuesday with a two-hour-and-twenty-minute closing argument. Coming at the end of a long day, the performance may not have helped the government’s already powerful case. In fact, it may have struck some jurors as being exactly what the defense team has been saying about the pursuit of Ford: overzealous.
Defense attorney Michael Scholl will make his closing argument Wednesday. It’s a good bet that it will be shorter than DiScenza’s if he wants to score points with the jury.
DiScenza played snippets of a dozen or so tapes the jury had already seen and heard two or three times. The tapes clearly showed Ford doing favors for E-Cycle Management in exchange for payments.
But they were no longer new. As U.S. District Judge Daniel Breen told jurors, closing arguments are just that argument, not evidence. The government had already summarized its case with a summary witness, FBI agent Mark Jackson, and a time line.
And on Tuesday, jurors had already sat through a three hour and thirty minute lunch break while the judge and attorneys worked out some undisclosed procedural matters apparently involving a juror who was excused.
DiScenza, a veteran career prosecutor who has already won two convictions in Tennessee Waltz trials, started off well enough with a legal maxim that goes something like this: “If you have the facts, argue the heck out of the facts. If you have the law, argue the heck out of the law. If you don’t have the facts or the law, then accuse the government of misconduct and argue entrapment.
That is what Scholl has been doing for two weeks. He called only three defense witnesses, and John Ford was not among them. Unlike his brother, Harold Ford Sr., who made a memorable stand against prosecutors in his 1993 corruption trial, John Ford decided not to testify.
DiScenza finished strong, too.
“Who’s got the power?” he said, voice rising. “Only twelve people have the power to stop this. And that is the twelve of you who go back into that jury room.”
But the ending may have come roughly two hours too late. Closing argument is a last chance to persuade the jury with personality, charm, and rhetorical skills. But every speaker and every writer knows that attention flags after 30 minutes for even the great ones. And a story you have heard three times already is not a great one, no matter who is telling it.
Possibly making matters worse, earlier in the day assistant prosecutor Lorraine Craig drew the assignment of cross-examining Ford’s twenty-something girlfriend, a perky young woman who suggested undercover FBI agent L.C. McNeil may have done some unauthorized undercover work under the covers with a girlfriend in Miami after partying with Ford and friends one night. McNeil had denied the suggestion last week, but Craig bored in so hard on the witness, Mina Knox, that Breen interjected at one point.
In short, if there was a ray of hope for the defense after the proof was in, it was that one or more jurors would hang the panel. After Tuesday, that seemed like less of a Hail Mary than it had a day earlier.