Washington Lawyer - November/December 2022 - 38

ON FURTHER REVIEW
An Anatomy of
a Closing, Part 1
By Lloyd Liu
C
losing arguments are one
of the dramatic heights in
a courtroom, right beside
a punishing cross-examination
or a jury's verdict announcement.
Jake Stein once wrote,
" There are fine closing arguments
followed by a guilty verdict. There
are poor closing arguments followed
by an acquittal. It is the rare
combination - the fine argument
and the acquittal - that is the
prize. " 1
This column is part of a short series with Robert
Trout, of counsel at Schertler Onorato Mead
& Sears LLP, on his closing in United States v.
Ravenell. Trout has more than 40 years of experience
in civil and criminal litigation, beginning
his career with the U.S. Department of Justice's
Criminal Division and then becoming an assistant
U.S. attorney in Baltimore. Until 2021, Trout
practiced at his own firm, Trout Cacheris &
Solomon PLLC, which he founded in 1996
with John Richards.
Trout recently represented Joshua Treem, a
venerated attorney of the Baltimore defense
bar. Treem, like Trout, began his career at the
Department of Justice and also was an assistant
U.S. attorney in Baltimore. After leaving the
Justice Department, Treem embarked on a
career representing criminal defendants for the
next 40 years. In 2016 he agreed to represent
another prominent criminal defense attorney,
Kenneth Ravenell, who was the focus of an
investigation into his representation of accused
drug trafficker Richard Byrd.
In December 2020, Treem was indicted for conspiracy
and obstruction of an official proceeding,
with prosecutors alleging that he had falsified
documents to defend his client. The jury
ultimately acquitted Treem and his investigator,
a codefendant, on all counts.2
A professor
at the University of Maryland law school described
the case as " one of the most important
criminal trials ever held in Maryland, from the
perspective of defense lawyers. " 3
At trial, the government alleged that Treem and
his investigator met with Byrd, the key witness,
with the goal of taking him " off the board " by
convincing him to sign a false statement they
could later use to damage Byrd's credibility.
Byrd was serving a 26-year sentence when
he indicated that he had exculpatory evidence
that would help his former lawyer, Ravenell.
Treem and his investigator therefore went to
visit Byrd in prison unaware at the time that
he had recently decided to cooperate with
the government. Treem was also unaware that
the government was videotaping his meeting
with Byrd.
Treem brought with him a set of talking points,
labeled the " KWR combined notes, " which consisted
of 53 numbered exculpatory statements
he believed Byrd might confirm. When Byrd
suggested that Treem give him the two-page
list of exculpatory statements so he could read
it aloud and answer questions, Treem handed
Byrd the notes across the table. As a result,
neither Treem nor his investigator could see
what Byrd was reading. Midway through
the talking points, the parties' conversation
digressed to another topic. Byrd then resumed
reading but inadvertently skipped four of the
53 statements, unbeknownst to Treem and his
investigator.
Although Treem took notes during the interview,
none of them tracked specific items from
the KWR notes. Later, the investigator signed
an affidavit stating that Byrd had read and
affirmed as true all 53 of the exculpatory statements.
The government therefore alleged that
the affidavit was knowingly false and that
Treem had obstructed justice in preparing the
affidavit for the investigator to sign.
Trout's first challenge at closing was to distill
this confusing scenario into a succinct summary
for the jury. He did so right at the beginning
of his argument. He also reminded the
jury that he had fulfilled the promise he made
to them in his opening statement:
Among the allegations that the Government
has made in this case is the charge
that Joshua Treem committed a crime when
he prepared and approved language in an
affidavit that said that Mr. Byrd [the witness]
approved all 53 of the items on the KWR
combined notes rather than the 49 that
he actually read and approved. Now petty
as that may seem, it actually became ridiculous
when you saw what I told you you
would see in my opening statement, when
you saw in the videotape that Joshua Treem
and [Treem's investigator] had no opportunity
to even know that he [Byrd] had
skipped those four items because they
didn't have the notes in front of them.4
Trout then took a moment to educate the jury
about leading questions.
So realizing this, [the prosecutor] in his
examination of Mr. Byrd, decided he would
try to fix it. Here is . . . the leading question
that [the prosecutor] asked Richard Byrd
on the witness stand. Leading because it's
designed to lead the witness to the answer
that the questioner wants.5
He then quoted the prosecutor's leading
question: " And just to be clear, Mr. Byrd . . . was
Mr. Treem writing down the numbers that you
were answering to? " Predictably, Byrd agreed.
38 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2022

Washington Lawyer - November/December 2022

Table of Contents for the Digital Edition of Washington Lawyer - November/December 2022

Your Voice
From Our President
Practice Management
Toward Well-Being
Planting the Seeds: Pro Bono Helps Nonprofits Flourish
A Primer on D.C.’s New Debt Collection Law
Eviction Writ Quashing: Last Line of Defense for Tenants
Employment Law Implications of Dobbs
How Immigration Can Help Solve the U.S. Pilot Shortage
Ten Things You Might Have Forgotten Since the Pandemic
SPECIAL SECTION Young Lawyers Bring Passion to Public Interest Work
Attorney Briefs
Taking the Stand
Disciplinary Summaries
On Further Review
Member Spotlight
Worth Reading
Speaking of Ethics
The Learning Curve
The Pro Bono Effect
A Slice of Wry
Washington Lawyer - November/December 2022 - Cover1
Washington Lawyer - November/December 2022 - Cover2
Washington Lawyer - November/December 2022 - 1
Washington Lawyer - November/December 2022 - 2
Washington Lawyer - November/December 2022 - 3
Washington Lawyer - November/December 2022 - 4
Washington Lawyer - November/December 2022 - Your Voice
Washington Lawyer - November/December 2022 - 6
Washington Lawyer - November/December 2022 - From Our President
Washington Lawyer - November/December 2022 - Practice Management
Washington Lawyer - November/December 2022 - Toward Well-Being
Washington Lawyer - November/December 2022 - Planting the Seeds: Pro Bono Helps Nonprofits Flourish
Washington Lawyer - November/December 2022 - 11
Washington Lawyer - November/December 2022 - 12
Washington Lawyer - November/December 2022 - 13
Washington Lawyer - November/December 2022 - A Primer on D.C.’s New Debt Collection Law
Washington Lawyer - November/December 2022 - 15
Washington Lawyer - November/December 2022 - 16
Washington Lawyer - November/December 2022 - 17
Washington Lawyer - November/December 2022 - Eviction Writ Quashing: Last Line of Defense for Tenants
Washington Lawyer - November/December 2022 - 19
Washington Lawyer - November/December 2022 - Employment Law Implications of Dobbs
Washington Lawyer - November/December 2022 - 21
Washington Lawyer - November/December 2022 - How Immigration Can Help Solve the U.S. Pilot Shortage
Washington Lawyer - November/December 2022 - 23
Washington Lawyer - November/December 2022 - 24
Washington Lawyer - November/December 2022 - 25
Washington Lawyer - November/December 2022 - Ten Things You Might Have Forgotten Since the Pandemic
Washington Lawyer - November/December 2022 - 27
Washington Lawyer - November/December 2022 - 28
Washington Lawyer - November/December 2022 - 29
Washington Lawyer - November/December 2022 - SPECIAL SECTION Young Lawyers Bring Passion to Public Interest Work
Washington Lawyer - November/December 2022 - 31
Washington Lawyer - November/December 2022 - 32
Washington Lawyer - November/December 2022 - Attorney Briefs
Washington Lawyer - November/December 2022 - Taking the Stand
Washington Lawyer - November/December 2022 - 35
Washington Lawyer - November/December 2022 - Disciplinary Summaries
Washington Lawyer - November/December 2022 - 37
Washington Lawyer - November/December 2022 - On Further Review
Washington Lawyer - November/December 2022 - 39
Washington Lawyer - November/December 2022 - Member Spotlight
Washington Lawyer - November/December 2022 - 41
Washington Lawyer - November/December 2022 - Worth Reading
Washington Lawyer - November/December 2022 - 43
Washington Lawyer - November/December 2022 - Speaking of Ethics
Washington Lawyer - November/December 2022 - 45
Washington Lawyer - November/December 2022 - The Learning Curve
Washington Lawyer - November/December 2022 - The Pro Bono Effect
Washington Lawyer - November/December 2022 - 48
Washington Lawyer - November/December 2022 - 49
Washington Lawyer - November/December 2022 - 50
Washington Lawyer - November/December 2022 - 51
Washington Lawyer - November/December 2022 - A Slice of Wry
Washington Lawyer - November/December 2022 - Cover3
Washington Lawyer - November/December 2022 - Cover4
https://washingtonlawyer.dcbar.org/novemberdecember2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/januaryfebruary2022
https://washingtonlawyer.dcbar.org/novemberdecember2021
https://washingtonlawyer.dcbar.org/julyaugust2021
https://washingtonlawyer.dcbar.org/julyaugust2021
https://washingtonlawyer.dcbar.org/marchapril2021
https://washingtonlawyer.dcbar.org/marchapril2021
http://washingtonlawyer.dcbar.org/novemberdecember2020
https://washingtonlawyer.dcbar.org/novemberdecember2020
https://washingtonlawyer.dcbar.org/septemberoctober2020
https://washingtonlawyer.dcbar.org/julyaugust2020
https://washingtonlawyer.dcbar.org/june2020
https://washingtonlawyer.dcbar.org/may2020
https://washingtonlawyer.dcbar.org/march2020
https://washingtonlawyer.dcbar.org/january2020
https://washingtonlawyer.dcbar.org/november2019
https://washingtonlawyer.dcbar.org/october2019
https://washingtonlawyer.dcbar.org/september2019
https://washingtonlawyer.dcbar.org/julyaugust2019
https://washingtonlawyer.dcbar.org/june2019
https://washingtonlawyer.dcbar.org/may2019
https://washingtonlawyer.dcbar.org/april2019
https://washingtonlawyer.dcbar.org/march2019
https://washingtonlawyer.dcbar.org/january2019
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/november2018
https://washingtonlawyer.dcbar.org/august2018
https://washingtonlawyer.dcbar.org/august2018
https://washingtonlawyer.dcbar.org/June/July2018
https://washingtonlawyer.dcbar.org/april2018
https://washingtonlawyer.dcbar.org/March2018
https://washingtonlawyer.dcbar.org/February2018
https://washingtonlawyer.dcbar.org/january2018
http://washingtonlawyer.dcbar.org/december2017
http://washingtonlawyer.dcbar.org/November2017
http://washingtonlawyer.dcbar.org/september 2017
http://washingtonlawyer.dcbar.org/september 2017
http://washingtonlawyer.dcbar.org/august2017
http://washingtonlawyer.dcbar.org/july2017
http://washingtonlawyer.dcbar.org/June2017
http://washingtonlawyer.dcbar.org/may2017
http://washingtonlawyer.dcbar.org/april2017
http://washingtonlawyer.dcbar.org/march2017
http://washingtonlawyer.dcbar.org/february2017
http://washingtonlawyer.dcbar.org/january2017
http://washingtonlawyer.dcbar.org/december2016
http://washingtonlawyer.dcbar.org/november2016/
http://washingtonlawyer.dcbar.org/october2016
http://washingtonlawyer.dcbar.org/september2016
https://www.nxtbookmedia.com