Prevatte Trial: Two Closing Arguments, One Set of Evidence

[00:00:00] Tony DeWitt: Closing argument is like the last chapter in a book. It finishes the story. It needs to make sense of the chapters that came before it. Lawyers are given a lot of latitude in a closing argument, but there are limits. A lawyer can explain how the evidence fits together, but what happens when the lawyer supplies a missing piece or describes evidence the judge says, "Hey, it wasn't there." The Privat Closings give us examples worth examining on both sides. Stay with me. Hi, Tony DeWitt here. Thanks for being here. I'm a retired Missouri attorney with more than 30 years' experience in courts around the country. I've now un-retired so that I can bring you informed commentary on trials and legal topics. Because I deal generally with trials and legal topics, I'm not offering any legal advice and I'm not intending to form any lawyer-client relationships with anyone. This is a trial channel and today we're discussing this. In November 2017, 5-year-old Peyton Fields died in Pender County, North Carolina. Her autopsy revealed strangulation and the kinds of lower body injuries that no 5-year-old girl should ever have to endure. More than four years later, in February 2022, authorities arrested her uncle, David Privat, in Louisiana. Now he faces trial for first-degree murder and the types of crimes normally charged in those lower body injury cases. Privat has denied killing her. A closing argument is advocacy. It gives counsel the opportunity to organize the evidence, explain reasonable inferences, and ask for a verdict. It isn't another witness taking the stand. North Carolina has a statute specifically addressing this. Lawyers cannot become abusive, inject personal experiences, offer personal beliefs about truthfulness or guilt, or argue outside the record subject to an exception for judicial notice. A judicial notice is, for example, when the judge takes note that at 10 o'clock at night, it's dark. They can argue conclusions supported by their analysis of the evidence. For example, a lawyer can explain why a witness's account agrees with an exhibit. But, personally guaranteeing that witness's honesty? Oh, that's a different matter. So is implying that the government knows something that the jury hasn't heard. A lawyer can attack contradictions, unsupported accusations that opposing counsel manufactured testimony create another problem. The evidence must do the work. Emotion requires care, too. A terrible crime produces terrible evidence. Discussing that evidence is part of the case, but asking jurors to imagine themselves as the victim or to convict because the community demands it introduces a different basis for their decision than the law and the evidence. And the state must carry its burden. The defense does not have to solve the crime. The prosecutor can challenge a defense theory, but cannot make the defendant prove innocence or use the defendant's decision not to testify as proof of his or her guilt. An analogy can help explain the law. It cannot replace the legal standard with a guess about which story sounds more likely. An unpublished North Carolina decision upheld a particular puzzle illustration, so we need to examine what an analogy actually communicates rather than declare every puzzle forbidden. There is also a difference between improper argument and an argument that requires a new trial. Objections, the judge's response, and surrounding evidence, and the prejudice all matter. Without an objection, an appellate challenged to a judge's failure to intervene generally faces a demanding gross impropriety standard or, in some states, a clear error standard. A conviction-surviving review doesn't give counsel permission to repeat an improper argument. Now, closing must remain faithful to the evidence actually admitted. That doesn't mean a lawyer is forever locked into an opening statement if the evidence develops differently than the way it was presented in opening. But if the theory changes, a good closing argument explains why. We have the closing videos here. They show what the lawyers argued, not independent confirmation of everything they say a witness proved. With that distinction in mind, let's compare their final chapters. Where did the assault happen? The prosecutor constructs a sequence. The child was moved, assaulted in the bedroom, and returned to the couch. Earlier, he relies on Lisa's description of her position and argues that an assault involving a struggle would have occurred away from other people. That's the foundation he offers. Listen to where he takes it. [00:05:32] Speaker 2: So how did she get from a laying position to a seated position where she'd been strangled almost to death at that point? And if reason and common sense says she wasn't assaulted there, she was assaulted somewhere in secret, then how did she get sitting up? Savannah tells you, "I see Uncle Boo Boo standing over Peyton." I would contend to you that she was not assaulted on that couch. She was assaulted in that bedroom. And when Savannah wakes up to see Uncle Boo Boo standing over Peyton, he's putting her back. But he doesn't put her back the way that Lisa put her, which was laying down. He puts her back in a seated position. [00:06:32] Tony DeWitt: The prosecutor obviously thinks this is a strong evidentiary point, and he wants to make the point to the jury about her position. But watch how the defense answers that. "Where's the sheet? [00:06:44] Speaker 3: They made a big deal about showing this sheet. And the DNA that's found on the sheet is heinous. The image that -- the penis image, again, that's David's. But did they say there was any blood, any DNA from Peyton on that sheet if that's where it happened?" So, "Was there any DNA of Peyton's on top of the mattress?" Because what you see in the clown scene photographs is that bed did not have any sheets, any blanket, any type of bedding on it. It was just stripped down naked. [00:07:56] Speaker ?: Why didn't they seize it? [00:07:59] Speaker 3: Why didn't they seize it? Why wasn't it tested for blood or other substances that would carry DNA? And the Sheriff's Department had plenty of opportunities. [00:08:15] Tony DeWitt: That's the central contest. The state offers an explanation connecting several different circumstances. The defense asks, "Where's the physical support for that? Where is the physical support for the bedroom evidence?" A reasonable inference doesn't require someone to have watched every step. Each important connection needs support. Because you can't stack inference on top of inference. Because that becomes speculation. So, you have to ask yourself, "Did the testimony establish a change of position?" What supports the bedroom location? [00:08:58] Speaker ?: What supports the bedroom location? [00:08:58] Tony DeWitt: And what was collected and tested? The defense's questions are useful. But questions aren't proof that the assault happened somewhere else. And the prosecutor's reconstruction isn't established merely because it supplies a coherent sequence. But as I have said repeatedly on here, when you're the defendant and you get to ask questions that the state cannot answer, that is a very effective method of argument. For me, this is where a closing earns its conclusion. Show the jury which attacks support each step and acknowledge the step that depends on inference. So, with that, let's turn to "What do the earbuds establish?" Listen to this small correction by the prosecutor. Because it matters. [00:09:57] Speaker 2: But they're important because Dr. Kelly testified that they matched strike that part consistent with the size of the ligature mark around Hayden's neck. If you remember what she says, the area between this line and this line is about a quarter of an inch. A quarter of an inch. A quarter of an inch. Use a reason of common sense about how big a quarter of an inch is. [00:10:27] Tony DeWitt: - Initially, he says "matched." Now, we can't be in the courtroom and see the dynamics between the two attorneys. But maybe he caught the defense attorney rising from his seat. Who knows? But he corrected "matched" to "consistent with." Now, those are two very different standards. Give him credit for preserving the qualification. Evidence can be compatible with a proposed object without uniquely identifying that object. The exact scope of the expert's testimony matters. Now, listen to the defense acknowledge the DNA and offer another explanation. [00:11:12] Speaker 3: Well, the problem with that argument is there are marks on the back of her neck that are consistent with the marks on the front of her neck. Which means the cord had to be wrapped. And if the cord is wrapped once, twice, there's still more than enough. That the hooks are going to be in either one end, in one hand or the other. So, how did this happen? They have to tell you that. They have to prove that. Is David's DNA on there? Yes, because they're his. Is Paton's DNA on there? Yes, because it was there in the house and she could play with it. It's balled up. It's balled up, found on top of a nightstand or a bedside table. Do you really believe that David Prevath used these earbuds to choke, to strangle, to kill Paton Fields? [00:12:32] Tony DeWitt: That is a useful defense technique. Address the difficult evidence directly. But the suggestion of innocent handling needs support too, and it needs to answer the state's whole argument, including the location and the alleged pattern, not just the presence of DNA. The prosecutor also answers the demand for a precise reconstruction. [00:12:56] Speaker 2: Or you could have a split like that. We don't have to prove to you the exact manner that these earbuds were wrapped around her neck. We do not. We have to prove you a deadly weapon was used to kill Payton Fields, a legature. The only person that can opine how these were wrapped around Payton's neck is Payton and the defendant. [00:13:28] Tony DeWitt: Now I have two separate issues here. Whether the state must establish every detail of the wrapping depends on what it must prove under the instructions. An unanswered mechanical question is not automatically a missing element, although it may affect how persuasive the evidence is. Then comes the reference to the victim and the defendant being the only people who could explain it. That deserves scrutiny. Because it is the law of the land, a federal constitutional prohibition, against using the defendant's silence against them. A prosecutor cannot invite guilt from a defendant's silence. Now North Carolina decisions distinguish that from explaining why a case relies on circumstantial evidence. But that came really, really close to crossing the line. And why it did not draw an objection from the defense, I don't know. But I believe it probably should have. Was the witness prepared or was she coached? The defense suggests that Savannah's account was shaped by adults. The state answers that her account doesn't sound like a manufactured accusation to them. Here are the competing arguments on this score. [00:14:59] Speaker 3: And what did he do, what did Detective Short do? He calls the lady with whom Savannah has lived, her aunt, from shortly after this occurred through today, to tell her that they were going to arrest David. Where was Nora? Was Nora in this courtroom during the Stagg's case? Did anybody point her out to you? Did she even call her as a witness? She wasn't here. They didn't call her as a witness. Why? Maybe it's perhaps Nora who was telling Savannah what had happened during this period from November of 2017 to when they decided they would arrest David. Nora, as Detective Short said, the only family member who ever inquired about the status of the investigation was about the status of the investigation. Nora, who brought Savannah to this very courtroom. Why? So they could practice. Practice what Savannah was going to say from this witness stand. And Nora, who said Savannah was here, ends up in the back room with Detective Short. Why? Perhaps Nora was more involved in this practice session than they want you to know. So when she goes back to that interview after David has been arrested, don't you know she's been told that Peyton was killed by David? [00:17:20] Tony DeWitt: Here's the state's answer to that, which I find somewhat unsatisfying. You'll have to tell me what you think. [00:17:30] Speaker 2: It's Savannah's incredible kid. If she was coached, do you think maybe she would have said, I saw David do it? She would have said, or not said, I don't remember on some things. You got to hear her testimony. You got to hear her on cross-examination. She's 16 years old now. She was 11 when she first said it. [00:17:57] Tony DeWitt: Now, both sides are being a little disingenuous here. And I have to admit that. The defense moves from circumstances surrounding preparation to a claim about what someone told this witness. Where is the evidence for that conversation? Preparing a witness for the courtroom does not establish fabrication. But the state's response is weak sauce. And it has its limits too. An incomplete accusation doesn't automatically establish that coaching never occurred. What if the coaching didn't anticipate such a question? I would want the earlier interviews, the testimony about the preparation session, and the evidence about the ants' involvement if I was back in the jury room. Without those, I don't think I could identify the competing inferences. I cannot responsibly tell you which lawyer accurately recounts the entire history. The strongest credibility argument walks us through what changed, what stayed consistent, and what independently supports the account. And, to a certain extent, I think the defense had the better argument on this one. Then we come to, what does distress mean? Now, we reach the hospital. The state emphasizes the lobby. The defense emphasizes arrival, rescue efforts, and concern for a child. These passages may concern different moments in the hospital footage, so keep that distinction in mind. [00:19:30] Speaker 2: Nothing out of the ordinary. But then look at David's demeanor. Who was panicked, or appeared to be panicked, in the lobby? Let me watch those two clips. You can ask to look at any evidence you want to look at, but look at it. Look at his demeanor. You can look at his actions before, during, and after. Look at his demeanor. You know why he was so distressed? Because he knew what he did. He knew what he did, and he knew the extent of her injuries. He knew that she wasn't sick. He knew that he had wrapped something around her neck. [00:20:15] Speaker 3: And what did you see in the first video? You saw a distraught young man with a young girl in his arms, banging on the door of the emergency room so he could get in. He got out of the car, holding her, clutching her, and runs to the door. He goes in, and he immediately tells them they need help. He turns her over to the nurses and the doctors, and yes, he was crying. Yes, he was distraught. Why? Because his niece was on the verge of dying. She was on the verge of leaving everything that she had. And they want to say that's consciousness of guilt. No, that's pure emotion. That's concern for people. It's not, oh, I've done something horrible, so I've got to act like this. [00:21:20] Tony DeWitt: I have to say, you can take a lot away from a video, but a video never tells the whole story. And supplying context is a very effective way of helping explain what you're seeing on a video. And while the prosecutor talks about demeanor, he doesn't actually talk about what's being seen, crying, you know, being terribly upset that this little girl is dying. Whereas the defense counsel comes out and says, of course, of course, he's distraught. This is his niece, and she's dying. That would make anybody distraught. Both of them had good arguments. But again, I think the defense had maybe a little bit better one. I don't know if that'll carry the day or not. But I do think he had a better argument than the state did in that response. So I could go on and on with this. There are numerous examples of point/counterpoint that you see in this video, or in these videos, I guess I should say. I basically distilled two hours of argument down into a little less than 20 minutes. Hopefully, you get the gist of what I'm saying here. I thought that both of them had good arguments. If I had to give an edge, I'd give a very slight edge to the defense. And I'd only do that – I would only be slight because you don't really know how the people who are on the jury feel about prosecutors. You don't know what the makeup of the jury is. You don't really understand very much about that, or at least I don't. So I'm left wondering, hmm, what are these folks going to decide? How are they going to view all of this? These are competing narratives, and they're very good competing narratives. I think this has probably been one of the best and maybe the cleanest as far as the way it's argued cases. Now, there were objections, and there was one rebuke for the defense counsel in the case, in the argument. But that occurred outside of the presence of the jury. And the judge issued a curative instruction, and that's all he had to do. And when that happens, if you're a good lawyer, you get right back up and keep going with where you were going. You just avoid making what might have been a mistake again. So it'll be interesting to see how the jury resolves this. I don't anticipate that we'll get a decision in one day. I think they're going to have to go through. They're going to have to watch all the video. They're going to have to review some of the testimony. They're going to have to look at some of these exhibits. It's going to be a fairly long deliberation, I think. But I've been wrong before, so don't take that as gospel. That's what I have for you today. 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