Marc Agnifilo did a good job in his closing. I was at times critical of parts of his closing. However, I included a caveat that I was not in the courtroom observing the jury and how he was reading the jury. In closing arguments, you should always be attentive to the jurors to see if you can read them, and to see if your arguments are landing or not.
It appears that Agnifilo connected with the jurors in his closing. @genjustlaw (who was in court) reported that after Agnifilo finished his closing, applause broke out both inside and outside the courtroom. That could be big. It may be an indirect pressure on the jurors. We’ll see.
Although he did a good job, there is one important point I would’ve liked Agnifilo to have made. It is about coercion. Coercion is very central to this case. In SDNY, coercion for sex trafficking is deemed to have two necessary components: a subjective element and an objective element. The subjective element requires the jury to determine if the evidence showed that the alleged victim felt coerced to engage in the acts. Normally, this element is not difficult for the govt. In this case, the jury could find that the evidence showed that Jane and Cassie felt coerced.
But that’s not the end of the matter. The jury also has to find that the objective element was present. The objective element requires the jury to determine whether a reasonable person would’ve felt coerced under the circumstances. This element is the more difficult one for the govt and more favorable to the defense. One of the reasons this element can be good for the defense is that even though the mythical and objective reasonable person is the standard, jurors invariably use themselves as the yardstick. Each juror will say to himself or herself, “I am a reasonable person; would I have felt coerced in that situation?” If the jurors apply this reasonable person standard by asking themselves the above question, I find it hard to believe that all 12 jurors will conclude that the objective standard was met and that Cassie and Jane were coerced under the circumstances.
Female jurors are known to be tougher on female alleged victims; thus, I can see the female jurors concluding that they would not have felt coerced under the circumstances because they could have simply refused. Just my speculation.
Even though the jury will be instructed by the judge about the subjective and objective elements of coercion discussed above, I still think Agnifilo should have discussed it in closing. Some lawyers don’t like to talk about jury instructions during closing, but I do. One of the reasons I talk about it is that the jury instructions are long and boring. People tend to remember things that are repeated. So, if defense lawyer talks about or emphasizes certain parts of the jury instructions in his closing, when the judge later reads the long and boring instructions, the parts previously emphasized by the defense counsel are likely to jump out at the jurors because it would be a repetition of what they previously heard. As counsel, you want the jurors to remember and focus on the parts of the jury instructions that favor your case.
The next steps in the case would be the judge reading the instructions to the jury. Afterwards, the remaining alternates will be dismissed, the main jury will leave the courtroom, go the jury room and begin the deliberation. Deliberation is perhaps the most nerve-wrecking time for the lawyers and for the defendant. They are all helpless as they await the jury verdict.