I pity the Craig jury. They’re damned if they do, and damned if they don’t—just like the witnesses in this case. Regardless of the outcome of deliberations, it looks to me as if masses of people will be angry. It’s cases like this one (broadcast nationwide) that have convinced me we need some serious jury rights.

Jurors should have the right 1) to remain anonymous; 2) to be sequestered; and 3) to receive practical instructions (not legal jury instructions) on how to select a foreperson, how to deliberate, and how to reach consensus when one is appropriate or to hold out against the majority when logic demands it.

I watched the closing arguments yesterday via CNN’s streaming video (using Adobe Flash—it’s amazingly good quality video). Defense attorney Kaplan’s closing argument initially struck me as quite effective. He pointed out all the discrepancies in the eye-witness accounts. He appealed to my strong belief that that the State has the “burden of proof.” I suspect some jurors must feel that there is in fact “reasonable doubt.” The prosecutor’s closing argument was unimpassioned, but equally effective in my opinion. He clarified the charges in his first address to the jury; then in rebuttal he walked through the prosecution’s case, pointing out reasons the witnesses’ testimony was credible and reasons why they may have misremembered some facts.

As always while watching I was analyzing the rhetoric: how did each side attempt to persuade the jury?

It seemed to me that the prosecution appealed to the jury’s reason and common sense. The prosecutor studiously avoided inciting passions—and wisely so, because the nature of this case is inherently inflammatory. He gave the jury the respect they deserve: he clearly conveyed to them that he trusts them to uphold the oaths they swore to reach a verdict based on the evidence and nothing else.

The defense attorney, on the other hand, was passionate, and while he pointed out numerous flaws in the prosecution’s evidence, he seemed to do so from moral outrage against the authorities for pressuring the eye-witnesses to testify. This, in my opinion, was not rhetorically effective. Think about it: as a citizen of New Mexico, isn’t that what you expect the authorities to do?

Another element of Mr. Kaplan’s rhetoric was the frequent use of rhetorical questions. I would never recommend that anyone use rhetorical questions in an argument where your audience is likely to side with your opponent. In this situation, he asked several questions that I mentally answered with the opposite response to the one he hoped to elicit.

At one point, Mr. Kaplan asked something to the effect of, “Where is Aunt Leona?” referring to someone mentioned by the witnesses as having some knowledge of the case. I’m not sure, but he may also have asked, “Where is Rick?” whom the eye-witnesses claimed helped to dispose of the gun. I didn’t find this question compelling (although not rhetorical per se, it was used for rhetorical effect), because I know the defense could have subpoenaed anyone they wanted to. I couldn’t help but ask myself why they didn’t, and my conclusion was that they were afraid of what these witnesses might say. Until Mr. Kaplan asked about missing witnesses, the jury would have had no right to ask that question during deliberations, but now they are entitled to raise the question.

The defense conclusion was also ineffective with this former juror. Mr. Kaplan concluded by pointing out that the eye-witnesses did not appear to feel any remorse for participating in the murders. “Why?” he asked. “Because they weren’t there.”

This argument is a non sequitur. That’s a conclusion that does not follow from the premise. I believed throughout the trial that the defense would argue that the reason the eye-witnesses didn’t come forward until years later was quite the opposite. In fact, I was wondering which of the male witnesses the defense would try to claim was the actual shooter. They had nothing to lose by suggesting Craig might have been sitting in the back seat that night, not one of the others.

Do I really expect the Craig jury to analyze the closing arguments as I did? Of course not. I’m interested in courtroom rhetoric—not many people other than attorneys are. But that’s the thing about rhetoric: it acts upon an audience’s thought processes whether they realize it or not.