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Defense faces tight time limit in Probation Dept. trial

They call it the roadmap of a trial, a story to keep jurors engaged, a defining moment for a lawyer to connect with a panel of strangers. Opening statements are the very essence of courtroom drama that translates into must-see television.

But in a real-life scenario in federal court in Boston — where there are no cameras, no scripts — defense lawyers in the trial involving the Probation Department scandal will face this ultimate challenge: Can you do it in 15 minutes?

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That’s all the time that veteran US District Court Judge William G. Young will allow for each of the three defendants when the high-profile trial starts Thursday morning. The government will get 45 minutes in total, less than it usually gets, and Young scoffed when they asked for more.

“An hour and a half openings is almost inevitably boring,” the judge, known for being sensitive to jurors’ needs, told lawyers and prosecutors during a pretrial status conference last month.

Young selected 9 women and 7 men Wednesday to serve on the jury.

By many accounts, the trial entails the most complex criminal legal theory prosecutors have proposed in recent time. Young himself said at a recent hearing that it was the most involved he has seen in his decades on the bench, and the limited amount of time to present their cases could pose challenges for both prosecutors and defense lawyers.

Stellio Sinnis, one of defendant John O’Brien’s lawyers, even followed up on the judge’s order last week with an official court motion requesting an additional 15 minutes to add to the 15 minutes alloted each of the three defendants, for a total of one hour. Sinnis noted the indictment runs 59 pages and contains 62 racketeering acts, alleging a criminal conspiracy that covered 10 years.

“With only 45 minutes to divide among all three defendants, it would not be possible as a practical matter both to present the big picture and for counsel to address issues pertaining specifically to each defendant,” he pleaded. “The effect would be to dilute the defense presentation.”

Young would have none of it. He did not even hold a hearing and refused to hear further arguments.

So what makes an effective opening statement; what is its purpose? What helps it, or undoes it?

Some of Boston’s better-known trial lawyers gave their own views on what they have seen work and what they have seen fail.

First, many agreed, cut out the introductions, and leave out the clichés. No need to introduce yourself or thank the jurors, and don’t tell them to “use your common sense.”

“They know you’re the lawyer; you don’t have to go on and on about generic greetings,” said Brian Kelly, a partner in Nixon Peabody and a former assistant US attorney who helped prosecute gangster James “Whitey” Bulger last year. “I like to get right to the point right away and not do a big windup introducing myself, thanking everyone for being there. You’ve spent the first two minutes doing that, and they haven’t heard anything about the case.”

Kelly, who made the opening statements in the Bulger trial, said serious cases require lawyers to be serious with jurors. Look them in the eye. In his hourlong openings in Bulger’s trial, he paused to remember Bulger’s 19 alleged murder victims, said their names, and posted their pictures on a screen.

“The opening is a dramatic event in any trial,” he said. “You have the jurors’ attention, so it’s important not to squander that attention by boring them or rambling on about pointless points.”

One thing is clear, he said: “Lawyers will talk all day if you let them.” Given that, he said, the judge’s 15-minute-per defendant time cap makes sense.

J.W. Carney Jr., one of Kelly’s adversaries in the Bulger trial, has given openings in some of the most dramatic trials the area has seen, including Bulger’s, the case of convicted terrorist supporter Tarek Mehanna, and that of John C. Salvi III, who shot up two abortion clinics in 1994, killing two people.

In Bulger’s case, Carney made the eye-opening declaration that his client would admit to drug dealing, strictly so he could focus on the more serious allegations that he killed two women, and that he was an FBI informant. In the Salvi trial, he tried to explain his client’s intentions, he said. In Mehanna’s case, he tried to humanize him by showing pictures of the Al Qaeda sympathizer as a child, alongside Santa Claus.

Carney said in an interview that opening statements are an essential part of a defense.

“The jury has just heard a compelling case by prosecutors; you can’t go mute,” he said, adding that lawyers also should not use boilerplate clichés to tell jurors that their clients have “a presumption of innocence.”

That suggests that the lawyer believes his own client is guilty and has no better defense than to state the obvious.

Carney has lectured on the art of openings and closings at conventions and workshops for lawyers, and he has a fact sheet telling students the basics: Have style, and be yourself, but don’t be too dramatic or humorous. Know what you are doing before, and get approval; you don’t want your opponent objecting in the middle of your statement. Personalize your client, but not your opponent. Call him “the prosecutor,” or “the defendant.” And tell the jury something about the defendant. Jurors are most attentive at the onset, and they don’t want to be impartial; they want to take sides.

“We win close cases because they believe us, and we build that bond of trust from the outset, in the openings,” Carney said.

Some lawyers believe that 80 percent of cases are won with opening statements; at least that’s what some law schools will tell you, and prominent civil litigator Joan A. Lukey agrees it is important to connect with jurors at the beginning.

“You certainly have a head start if you can reach the jury,” said Lukey, of Ropes & Gray, the lawyer who represented noted crime writer Patricia Cornwell in a $50 million lawsuit last year in federal court in Boston.

The verdict was later undone because of technical legal issues, but jurors walked away from the weeks-long trial with distaste for Cornwell’s financial adviser, the trial attorney’s goal.

“The opening statement is a chance to tell the story, and it has to be as entertaining as a good story,” Lukey said. “Weave in the evidence, but leave them hanging, and leave out a little at the end, so they can see the story unfold.”

But how long should it take?

“It will be pretty tough to tell a story line in 15 minutes,” she added.

Milton Valencia can be reached at mvalencia@
globe.com. Follow him on Twitter @miltonvalencia.
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