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Closing Arguments in Thomas Junta Hockey Dad Trial

Aired January 10, 2002 - 09:31   ET


PAULA ZAHN, CNN ANCHOR: We quickly take you back to Cambridge, Massachusetts, where closing arguments are getting underway in the Thomas Junta hockey dad trial.

Let's listen.


THOMAS ORLANDI JR., DEFENSE ATTORNEY: I can't do that. So if sitting through mute, and you say, why isn't he coming back to rebut something, she says I can't do that, that's the way the procedure works.

Also, personally, I would like to say this, that if I say something, and I have spent many hours trying to go over all of the evidence last evening and tried to reduce to notes -- if I say something to you that is not your memory, it's your memory that prevails, your notes, what you remember, please don't hold it against my client if I say something that you say, that lawyer shouldn't have said that. It's my memory, it's my notes from files that are this thick in my office last night.

When I began this case, there were a couple of things I quoted to you. And the first quote was that, as the judge indicated to you when he quoted Justice Holmes -- I am going to quote Judith Orlandi my wife. She said, and I said to you, "Things in life are not always as they seem." I also said to you when I said things in life are not always as they seem, and I tried to promise to you that there were two sides to every story.

I think when you look at this case when it first started and where you are now many days later, I think you will agree that there are two sides to every story. There's a lot of inconsistencies in witnesses testimony, and there is a lot of inconsistent in the validity of their testimony. (UNINTELLIGIBLE) what one observed and what another observed.

I began the case after the D.A.'s opening; I gave my opening. On the D.A's opening, I would like to say this. She stated that Costin ran into the defendant, Thomas Junta. I agree with that. Said the witnesses had different views and they had different interpretations of what they saw. I agree with that, and I am going to try to summarize my memory. She said that the kids were in full hockey gear for stick practice. I disagree with that. I will show by my notes that the kids were not in full hockey gear. They were there for stick practice, but not for contact sports.

She stated Mr. Costin -- I'm sorry -- Mr. Junta at the initial altercation said something about control your sticks, and she said Mr. Costin said, "That's hockey." I agree with that. Mr. Junta said, "That's bullsh*t. It's supposed to be fun." I agree with that.

Because this is a criminal case, the judge is going to instruct you on the law. It's a very serious case, because criminal and judge is going to instruct you that the government has to prove beyond a reasonable doubt every element of this case, that Tom Junta committed manslaughter and that Tom Junta committed manslaughter either voluntarily or involuntarily.

When you look at evidence, I would ask you to think of scales of justice. In a criminal case, the government has to tip the scale almost all the way down by proof beyond a reasonable doubt. The judge will instruct you on that, not like in a civil case, when you're suing someone, when you just have to flip it preponderance of the evidence.

Now as I remember the testimony -- and I'll try to keep these somewhat in order if I can -- the first -- one of the first witnesses involved in this case was a woman named Nancy Blanchard (ph). And the -- I think the first witness prior to her was Sergeant Cormier (ph), who was I believe one of the first officers at the scene. And my question to Sergeant Cormier is when you discussed with Nancy Blanchard, did you have a chance to look at her demeanor and what she was all about, and I think she said yes, she was kneeling beside the body, and she was -- quote -- "very upset." Again, I think it's important that you understand the emotions of some of these women and some of these men and some of these witnesses when they relate to the facts.

She said she was in her office when a woman named Virginia Briggs ran in and stated two men were arguing. She immediately called 911, ran to the locker room, saw the men arguing, got involved, I believe, in some of that arguing, and then went back to her locker room. She thought it had ended. I believe she then heard more of it, returned, called 911. They are at it again, and she, again, ran back to that locker room.

Again, get the sense of this woman sitting in the office hearing yelling, another woman coming in saying there's arguing. She runs to 911. She leaves, goes to the locker room, she comes back. I think it's important to have the sense when you look at this and draw in your own personal experience of her anxiety and emotions at that time.

At some point in time, she called for some help. Some of the staff got involved, and at that point in time, I believe, I started to cross-examine her on what stated on direct examination. She stated, "At that time, I did not see any actual punches." I then went to her written statement, this document, and I said, Well, didn't you give statement to police officer?

Well, it wasn't a statement.

I said, OK, did you give a document that's in writing, five-pages long, to a police officer?


And I said, Well, when did you give that to him?

I don't remember the date.

And so I showed the document, and I showed her it was July 6th. And I said, When did you give that to officer? And I think she said, I gave it to him on July 7th, and that I wrote this out on July 6th sitting on my boat.

And I asked her, was that a common situation, a day later, you're -- what -- Yes, it was.

I said, well, where does it say in -- Doesn't in your statement that you observed men punching each other at that locker room?

We went back and forth on what -- I didn't put everything in my statement.

I said, I understand that, but did you observed men punching?

I showed her the statement. She says -- if it's in there, that's what it was.

And now we have direction examination. She said, I didn't see actual punches, then she says in a statement she saw punches. I then asked her about this issue of the bruise on her arm.

Could you have gotten that somewhere else?


I said when did you tell the police about the bruise?

She said, well I told trooper Burke (ph), and that was on the 7th. That was two days later, after this incident. I said, well, is there anything in your statement that says Mr. Junta hit you or did anything like that?

Well, he pushed by me.

I said, he pushed by you?

She said, yes, I put hand up and he pushed by me. And the D.A. asked some questions of trooper Burke. Did you ask her whether she heard Mr. Junta -- heard Mr. Junta say? She responded whether Mr. Junta heard her, and I believe she stated, I don't believe he heard and I don't believe he even saw me.

Then on the direct examination, ladies and gentlemen, she said that this 270-pound man threw her into the wall as he came into the lobby. I looked in her statement, and I said, where does it say in written five-page statement that he threw you into the wall?

She looked at it and said, well, I remember it now.

I said, well, did you tell the police on the 5th that he threw you into the wall? Did you tell the detective McKenna on the 5th? Did you tell trooper Burke on July 7th? Did you tell trooper Burke on July 18th? Is there anything anywhere in any police report or note that he threw you into the wall?

I remember it now.

Again, I'm not saying she's misrepresenting, but I want you to get a sense of the emotion that this poor woman going through, kids yelling, running back and forth.

And then I did a little bit thing with the -- at the jury here, both for Dr. Kessler and also to give you a sense of Nancy Blanchard. She said he brushed by her and she got a bruise on her arm. If he threw her into the cement wall, and Kessler says if you get thrown into a cement wall, you have to have a abrasions. You can have bruises, but you have to have abrasions. Dr. Canfor (ph) says you get clothes on, you get thrown into a wall, you don't have to have abrasions. Bottom line is, take a woman thrown into a wall by a 270- pound man, she might have a broken her neck. But she has no bruises on her rear end, or buttocks or back.

She then went on to say when at the first incident that Mr. Costin was sliding down in the alcove. If you remember when you went out and looked at that view, she says that he was sliding down the wall locker room two locker room one. He's sliding down this wall. What did Virginia Briggs (ph) say? She said that Mr. Costin was on the wall as you go into the locker room one. His back was to that wall, and I made a point. So Mr. Junta was facing him, facing the ice, Mr. Costin would then have been facing in. Now we have either on that wall or on this wall. Virginia says on this wall, Nancy says he's on this wall. They say he's sliding down. Sliding down seems to be somewhat consistent.

I want you to remember that sliding down factor when you think about Mr. Junta, who says he slammed the skates into my sneakers, I pulled my feet back, and I started to slide. Isn't that reasonable, if he had one foot on Mr. Junta's sneaker and he pulled back? And if you heard Mr. Junta, I was backpedalling at some point on my toes to keep the skates away from hi

m. She also said, when we talk about punches, that she told detective McKenna that he punched 10-20 times. I asked her in her statement, is there any number of punches in the statement, the five- page statement that you wrote the next day?

A number of punches, does it say 10-20 times?


When you told trooper Burke two days later on the 18th you counted the punches, what did you tell trooper Burke?

At this point, she now says 6-10 times. That's two days later, plus an interview on the 18th. Her statement says nothing about number of punches, and that's when I went through that little thing I did with podium, because I think it's so significant with Ryan Carr and his observations as the only witness I submit to you in this case who has probably been in more fights than we can imagine. He's been playing in hockey all his life. He's played in high school. He's played in college. He went out to Nebraska. He says from the point I saw what Costin did -- and I'll get to that in a minute -- to the floor was less than five seconds, and I was there. Someone, and I went one, two, three, four, five, six, seven, eight, nine, 10. And I'm not going, one, two, three, four, five, six, seven, eight. And I would go on to 20, but I'll probably break my knuckles.

How could Nancy Blanchard state to you that she saw a man on the floor being hit 10-20 times, 6-10 times, and then in court I think she said definitely 5-8 times. Again, I suggest, I don't think she's lying or misrepresenting, but she's so emotional that she's believing things that she's not factually seeing.

The other significant part about of her testimony that I submit to you, ladies and gentlemen of the jury is she says she saw that whole fight on the floor, and she doesn't remember Ryan Carr running over, putting his hands under Mr. Junta's armpits, on what he said was approximately the third or fourth punch, and trying to lift up. She's standing right there. She indicated that he was -- when he came back into the lobby area, he was enraged and his fists were clenched.

Well, I said to her, did you put that in your statement? That he was enraged and his fist were clenched? Well, if I didn't, I didn't put all the details in. OK.

Let's go to Virginia -- I'm sorry Naveta Pitch (ph). Naveta was standing in the window when he left and when he came back. What did she say Mr. Junta was doing?

Lumbering slowly, and then returned lumbering was the terminology she used. I said, did you see his first raised, did you see him enraged, did you red face?


Virginia Briggs also said, and I use her word, when she saw him come back -- quote -- nonchalantly. I don't have the Webster's Dictionary, but I assume that doesn't mean running purposefully, intently, with your hands raised.

Ending with Nancy Blanchard, after this incident was over, and a man had his son finally and the other children together, she demanded that he release the children to her. Complete stranger. He's now with a shirt torn, injuries to his face. He has a little bit discussion, wait a minute, these are my kids, I've got to take them. No, you are not taking them. The kids stay with me. Do you remember his response? I looked at myself. I wasn't a calming effect. This -- I call him the gentle giant, looking at these kids, he said, OK, go with her, she's in charge now guys, and he went out and sat down and waited for police. Next we had, in my notes and my memory, quickly, was the EMT. I think his name was Gentile -- G-E-N-T-I-L-E. He's a firemen. He's an EMT. He also is someone who should not get emotionally involved in these situations, probably seen them before, and he was there on an emergency, and I suggest he was heightened by the anxiety of what's going on, and the man on the floor. He stated, in direct testimony, that the man's nose was broken, and that the man's nose was crushed inwards, and I said to him, officer, in all due respect, where does it say in your report that you looked and it was broken? He looked and said, well, I think he said doesn't.

I said, well, how did you come to conclusion he had broken nose? You didn't have any X-rays, you didn't do anything like that.

Well, I saw blood under nose.

I said, well, officer, there are people with nosebleeds that don't have broken noses. He agreed. And I said, how did you get to impression nose crushed in? I just put that in the report.

I said, well, think of all the doctors who looked at all of the medical testimony, and you will see pictures of Mr. Costin's nose, and no swelling on his nose. His nose isn't broken, or pushed in. It's not crushed. Again, the anxiety of the moment, the differences in what people observed because of the trauma, I suggest to you, the emotional trauma they're going through.

Dr. Kelly, Dr. Kessler, Dr. Canfor and Dr. Glickman, not one indication that his nose was broken. In fact, I asked them, was there any trauma to the lips? Was there any trauma to the chin? Was there any trauma to the teeth?


Was there any fractures to the nose, the cheekbone, the spine, the pelvis? No. All doctors said no to that.

Then I think we went on to -- if my memory serves me right -- to dr. Kessler. Dr. Kessler, a medical examiner, from Massachusetts, now from Tennessee, was supposed to give us medical evidence and be neutral. He's not supposed to embellish. He's supposed to look at what he did and give you what he did in his opinions. Dr. Kessler had to have the world-renowned artist do his charts. My charts, if you remember, were horrific. Oh, he looked at my charts, water color. Oh, have to have my renowned artists. Really, doctor. Yes, and you have to have the photos of a body all cut up, and cut and bleeding and whole brains in the hand and show all that on the video, because that renowned artist charts can't depict what the injury was?

This wasn't someone who had been blown apart by mortar. This was someone who had a vertebral artery that ruptured, in the neck. A simple discussion on how that happens. You saw Dr. Canfor, who's been in the office for 17 years, spent years in and out of the civilian and military practice, started a number of articles, and then couldn't finish because he was in Bosnia, Guatemala, Ireland, Italy, Germany, back and forth. He said, this is simple thing. He didn't even go to the charts. He said they were all there. He said he reviewed them. He didn't put the charts up for you and spend an hour and hour talking about every single -- he said hyperextended neck, bring it back, you rupture the artery. We'll get to him in a minute.

But Dr. Kessler went on for probably the longest of any witness in this case, and I think probably went over everything 15 times. It's that old all saying, he doth protest too much, and then he becomes maybe not believable, or if he tells you, he tells you, he tells you, I am Dr. Kessler, you will believe everything he says. I asked Dr. Kessler if these injuries were within 1-2 minutes of each other after each fight, and he asked when they occurred, at the locker room or somewhere else? He said no. I asked him about the lower back and the buttocks? I said, if someone was thrown into the wall, would that just cause bruising? He stated, Absolutely not. There would have to be abrasions, even with your clothes on.

What did Canfor say? If you went against a flat wall, cement wall like that, clothes on, you don't have to have abrasions. You would get bruises. You don't have to absolutely have abrasions. He says, it's simple.

Then we talked about offensive and defensive wounds, and I think you saw that dance that went on there. I said, if Mr. Costin had two wounds on his hands -- and you are going to see the charts, and he had one hit here and one hit here and four blows were thrown at him, wouldn't that lead to other blows? I said, well, he back and forth and defense -- I said, well, doctor, simple math calculations, please, you're a very bright guy with a curriculum vitae like this. If you have four punches and you take two away, does that leave two?

Why was he dancing with me like that? Because he wants to lay it in, I suggest to you, about the number of punches that were thrown, but he can't tell you the number of punches that were thrown.

Then we had some, I think, interesting evidence about the hockey gloves. Well, what if he had the hockey gloves on doctor? Now could he get defensive or offensive wounds with the hockey gloves?

Well, my kids play hockey. Sometimes they have the gloves on. Sometimes they have the gloves off.

I said, wait, wait, wait. Gloves on, I'm not talking about gloves off.

Well, you know, I haven't seen the gloves. There may be no padding in those gloves. I'm not a hockey player, and don't know if any of you are, but I think you have an understanding of what hockey gloves are, and it would probably be a half an inch on each finger, because that's to protect from pucks. Again, I suggest to you the dance.

But he did state a karate neck-type twist could cause the same type of injury. He did state someone could become unconscious in 2-3 seconds from a subarachnoid hemorrhage. He did state, relative to the ligaments, that they could be caused by a bending of the neck all the way back and forward. Let me just read what was introduced and read into evidence to you on his grand jury appearances. On page 14, "This vessel ruptured and he immediately went unconscious." On page 22, "Do you have a reasonable opinion reasonable to medical certainty as the amount of force necessary to cause the arterial damage?" Answer: "In this instance, it was substantial force, because I'm associating that with the amount of hemorrhage" -- "I'm Associating with the amount of hemorrhage." We have here in torn muscles, you don't always have dash, dash, dash, when you have this to look at you can get amount of force by lifting head in a karate move. What you see on TV when they twist the head and it snaps, and you can do that with a twist of your arm.

The next page we went to, I believe it was page 23, talking about force. "As I said," the doctor says, "you can do it with just a minimal amount of force." Then he adds, "But in this case, we have trauma producers. We Something hitting this area, twisting this area, and rupturing the vessel right there." "Hitting this area, twisting this area, and rupturing the vessel right there." That's Dr. Kessler. That, I suggest to you, Canfor, twisting the head, turning it back and rupturing the vessel right there. And Canfor says, you don't have to spend an hour telling what's going on; the vessel ruptures, the blood goes to the brain and circulates, and there's blood pouring around everywhere. Very simple.

The next question was in the grand jury on page 27, "I think the push to the ground probably didn't do it. I think a punch causing this twist and hyperextension did it," page 27.

Page 32, question from a juror: "It sounds as if the injury to the artery could have been sustained from one punch in a certain way." Answer: "Yes."

Page 33: "I think it's from multiple blows. How many? I can't tell. Juror: "The tearing is from his head being push backwards to the side, is that correct? Answer: "The tearing is either from side to side twisting or trauma of being thrown down on to it.

Now at that point, I then went and said to Dr. Kessler, doctor, you said on page 33, "I think that it's from multiple blows. I can't tell. I then asked Dr. Kessler, I said, doctor, you think you didn't say it's definitely from multiple blows. Kessler's response, I think it is so; it is. That's when I ended my cross-examination of the dr. Kessler. I think it is so; it is. Thank you, doctor.

We then had another medical expert come in, Dr. Glickman, told you what the medical terms are, no opinions, we then had another doctor come in, Dr. Kelly, gave his medical report, gave his opinions, and if you notice in that report, he says, "No obviously swelling to the face."

We then went to trooper Burke who arrived at the scene when my client was standing outside and took him to the station, along with I think it was officer O'Brien. He stated, and I asked him what did he look like? He was polite. He was composed. He was cooperative. He volunteered, and volunteered to come to the station, not only to give us a written statement, but to give us an audio. At that point in time, Mr. Junta had been asked right outside the rink, will you talk to us?


Do you want an attorney?

No, sir.

Do you understand you need an attorney, you can have an attorney?

I understand.

Are you waiving your right to an attorney?


Will you write a statement for us as to what happened?

Yes, I will.

And he wrote a statement on the hood of his truck. You will get the statement. He then had that statement typed. One of the police officers typed it for him, because his handwriting was difficult at that time, and you are going to get this statement that was done immediately after this incident. I'm going to paraphrase it, but you will have it. It says, relative to the fight, first fight -- "We grabbed each other. He hit me, and he was trying to kick me with his skates," ends. And then says, "I went out and told my kids" -- I then went it and told my kids to hurry up, let's go." And I went outside. He retreated.

Now I submit to you, this is the second altercation with Mr. Costin. First one is on the ice when he says something to him, they control it, keep it under wraps, and Costin skates to him, and says, "That's hockey." He retreats from that, goes back and stands by Virginia Briggs. Now after this altercation in the alcove, I then went and told my kids to hurry up and let's go. I went outside. Then outside I went in and got them. The guy was in the hallway, and he made a kind of lung move at me. We grabbed and fought again. I hit him as he was trying to hit me, and then I stopped after a few punches. Junta says two to three punches, his son says three punches, Garrett Collins (ph) says three punches. He sat up, and then laid back down.

As I left the first time and then went to get my kids, I was afraid for them and didn't know the guy -- didn't know what the guy was going to do. When we met in the hallway, I was afraid of what would happen. I would have left if he didn't approach me again. That's given minutes after outside on his truck.

You're also going to hear the audio tape that he gave at the station right after this incident, to the officer, and I'm just going to summarize some of what's in that tape, and you'll get that in the jury room. Page six, seven, 12, 27 and 32 are the pages I will quickly refer to. Page six: Back in the locker room, as the first instance is happening, he is looking at his kids. "Guys there are a bunch of cheap shooters. They were cheap shooting the kids." Now, he says, "I was shaking a little."

Page 7, he is coming back in to the rink, and he states, "He's coming out this way. He made like a roundabout move at me, like a circle move." This is when he first comes in, and he senses something to the left, and he is doing this shortly afterwards on the tape.

Also talking about leaving and not bringing his kids with him. But you said a minute ago, sir, you thought the kids were write before you. Answer, "Yes, I thought they were coming. I thought because I didn't know. I didn't see them. What I'm saying is I don't know what I did for him then or a few seconds later. You know that they weren't behind me and they were still in the rink, and that's what I was thinking. So I went back in to get them."

A father worried about his children, going back in the rink to get them. You'll have that.

When he finishes that statement, at the station, the officer said, will you allow us to take photos of you. Yes, I will. Of your body. Yes, sir. Of your hands. Yes, sir. You will have all of those photos. I'm not going to dig them out now, because I will try to save time. You will have those to look at. Look at his hands. Look at his face. Look at the side of his face, the torn shirt, the scratches, under his football tattoo on the side here. This man suffered a serious trashing in that alcove by the 160-pound supposedly weakling.

But when you think of that and you look at Mr. Costin's picture that you are going to get, this nice looking picture of Mr. Costin, I would ask you, put a helmet on, put him in full hockey equipment, put him on skates that raise him three or four inches that raise him to a height of 6'3". Put gloves on him, his elbow pads, his shin pads, when he pushes his chest into Mr. Junta. I would suggest to you that can draw your own conclusions about what a 160-pound man was doing at that point, how aggressive and how physical he was, on the ice, the locker room, and now we go to the lobby.

The officer says, sir, before I shut this tape off, question, "Is there anything else you wish to say before I shut the tape off?" Right there at station. Mr. Junta: "Other than I wish it never happened. No, I hope this guy is fine."

We then went to, what I suggest to you, one of the most significant witnesses in this case, and I will try to summarize quickly, Ryan Carr. Ryan is at ice the rink. He said he noticed a skirmish which attracted his attention. When Mr. Junta went down to break up that skirmish. Nothing major, as far as he could see, he was skating, but then when he heard some arguing at the alcove in the locker rooms, he ran over, and he's going to tell you that when he ran over at that time, he saw the men tussling, pushing back and forth. Nancy Blanchard told him, basically, don't get involved, she thought he was going to get in a fight, so he sew stopped. He stepped in front of Mr. Junta. What does Mr. Junta do? He stops. He doesn't push Ryan Carr. He is not this aggressive giant that is going to take someone on. He stops. He looks at himself. Ryan Carr says, come on, come on, cut it out.

He reaches down, he sees the chain broken on his shirt. He reaches down, he got his shamrock, or whatever the charm was, and hands it to Mr. Junta, and it was over. He says he saw Mr. Junta lean into the locker room, say something to his children, and he left. Again, Ryan Carr is an important witness, because as I say, he has been in these fights, he is a hockey guy, he is unemotional, he is focused. He goes on the ice and then comes back off the ice.

At this point, ladies and gentlemen, he says, he observed Mr. Costin come out of the locker room -- quote -- "How was he walking?" Quote: "He was moving intently, or rather pretty quickly toward the lobby doors. What's in Mr. Ryan's mind at that point? Does he turn around and go back on the ice, go in the locker room? He watches Costin. Dictionary definition, "intention: intent, firmly directive, earnest, having one's intention or purpose firmly fixed" -- "intention or purpose firmly fixed," dictionary. He watches Costin. Do you think he is sensing something. Draw from your own personal experience. He looks at Costin. He sees the door opening. What does he do then? He showed you, he sees Costin do what he called I think the crow-hop -- stands back, raises his leg. To punch himself in the face? Who is that right punch headed toward. He saw it. He said Mr. Junta is coming through the door. This little 160-pound guy was all set to take him out.

And fortunately, Junta spotted him at the last second and ducked. The punch went over Mr. Junta's face. At that moment, Ryan, that's why I asked you to go for the view, the shortness between that alcove and where this incident happened. It's a very short distance. Ryan throws his bag down, turns, he loses site of him for a second, he sees them falling on to the floor. He has skates on, and it's a rubber mat. He runs to that fight. He says, from the alcove to the fight, under five seconds.

I said to him, what did Mr. Junta appear to be doing before you lost site of him ant you went to the floor?

Quote, "Mr. Junta appeared to be blocking Mr. Costin's punch. He appeared to put his hands out in a defensive posture, the beginning of self-defense." He looked to his left, put his bag down, ran in the direction.

I said, what did you see?

Quote, "I saw three to four punches."

What did you see about Mr. Costin?

"He was fighting back, trying to throw punches, kicking up with his legs." Quote: "Costin's actions then changed to a more defensive mode about the third punch. Now, under five seconds, he's focused, he is a hockey player, he is watching all this. He is not hysterical. Costin's actions then changed to more defensive mode after about the third punch. I was there. I grabbed Mr. Junta's arm. He stood up. Was he threatening, hollering, yelling? No, sir. What did he do? He gathered his kids, and he walked away.

Three to four punches, under five seconds. Mr. Junta did not have an opportunity to retreat, I suggest to you. Costin was on his back. He hit the floor. The guy had already him on the ice, had already thrashed him in the alcove, and now there were as two men fighting on the floor. Under five seconds, three to four punches, it was over.

Again, only on Virginia Briggs, I will move on. She said that she saw something in the lobby with Costin. She saw him circling in the lobby, and then they came together in the lobby, and that they had this altercation there. She also never sees Ryan Carr.

Again, Virginia Briggs, I think she said six children, 10 grandchildren, a mother, who had seen the argument in the alcove, had ran to Nancy Blanchard, had gone back to the alcove, seen some pushing and shoving. I suggest, again, the facts of what she really saw are inconsistent because she was upset, emotional, and that interfered with her exact observations.

I think we then went to Quinlan Junta, now 12, then 10 1/12. He discusses the difference between stick practice and non-stick practice in contact and how you aren't supposed to have contact in stick practice. He told you how they were dressed. They were dressed lightly. Because if you don't dress lightly, you will get hurt, and that this wasn't the type of thing you should do. There were Lynfied (ph) kids, Redding (ph) kids, the first half. They were about even. That's when John Colin, the male left this group. And as you remember, he said, I left, then I looked and watched, and it started to get rough.

He verifies the second half that littler kids, the younger kids are out doing the Lynfield boys. Now, it starts to get physical. The fighting starts. The elbows, the slashing. This is what brought Mr. Junta down to the ice. And he was asked by the D.A., when Mr. Junta went to the ice and Mr. Costin was there, what did Mr. Costin do? He didn't break it up. Quinlan said that, he didn't break it up. My dad was yelling at them to break it up. He said he was in the alcove. He saw the altercation, and he heard his dad say, keep your skates down.

Mr. Junta stated he was trying to kick him in the ankles. He showed you some raspberries on his legs. He showed you how he was trying to get away to keep on his toes.

UNIDENTIFIED MALE: You have five minutes.

ORLANDI: Thank you, your honor.

Again, he's the boy that ran out alone, with Gary Collins, to the second altercation. Saw Mr. Costin on his dad's back, hit the floor. They both said three punches -- that quick.

Eric Canfor came in here and testified. He is a surgeon. He has been in Bosnia. He's a combat military veteran. He said, can you give your medical opinion as to the cause of death. Yes. He stated it was a ruptured vertebral artery. Is there anything in the evidence that shows that Mr. Costin's head was shaken violently? No. Then he was cross-examined, and he stated the force was minimal. It takes one blow. This is a simple injury to describe. There was minimal trauma here. He was asked by the D.A., is a severe brain hemorrhage? He said, yes, due to the hemorrhaging of the vertebral artery. He said it is quite simple to figure out what happened here. The D.A. said number of blows and cumulative. He said, no, it is not cumulative. Absolutely not, it is not cumulative. You hyperextend, and you turn your neck, you can get this injury by one blow, one blow, one hyperextension, turning of the neck -- it's not cumulative.

Again, when you go into the jury room and you look at Mr. Costin's photo, I would ask you to think about his head and that photo, but put a helmet on him, hockey pads, chinpads, increased tight, and I would like you to think about this reasonable, rational 160-pound man who would attack a 270-pound man. I would submit that you can draw references about what this 160-pound man was doing. I would submit that Mr. Costin never intended to kill anyone. He never intended to cause harm or serious jury, as Ryan Carr stated, when Costin lifted his left leg and lined up his right hand to hit Tom Junta, Tom Junta threw out his hands in a defensive posture, defensive posture. As Tom stated, Costin's momentum put him onto his back. He didn't have time to retreat. He drove him into that garbage pail. As Ryan Carr and Tom stated, then both within a few seconds, one, two, three, or possibly four punches, it was done, it was over.

As soon as Mr. Costin stopped kicking and flailing -- Mr. Carr -- Mr. Junta went into a defensive motion and stopped his actions. Look closely at what this 160-pound hockey player did. First argument verbally on the ice, skates over to Mr. Junta. Seconds in the locker room in the alcove, comes out at him. Junta didn't go into his locker room. Third, the sucker punch, the blind punch that he tried to hit with Mr. Junta on the side of his face.

I submit that any reasonable person would have the right to fight off this attack and to defend himself, and that it was a sharp defense, and that he was in a defensive mode, and Ryan Carr, as well as Tom Junta told you that. I would submit there were no more than three to four punches against a man who was fighting back. The result is not that -- what -- that Mr. Junta intended to kill or do serious harm.

This was tragic, but it was simply a fight. Please don't let this tragedy impact on the facts of this case. Everyone loses in this tragedy. But you've got to look at the facts. It was simply a fight, a serious outcome. But it was a fight, that the vertebral artery ruptured by a twist and an extension. When that happened, Tom said, he saw the hand go up, he stopped, Mr. Costin sat up, laid back, and then he stopped. He didn't hit him again. Now he is down, kicking, punching, that was it. He was no longer being attacked, no longer being punched, he stopped. I submit when you look at all these facts that there is not proof beyond a reasonable doubt that Tom Junta is guilty of manslaughter either voluntarily or involuntarily. He reacted to a that was directed at him. He defended himself against that force as he had a right to do.

Once that force was neutralized, he was out of harm's way, he stopped. He returned to his kids, he walked away from Costin. I ask you, ladies and gentlemen of the jury, to look at the man who testified on that stand. I call him the gentle giant. You look at him, you put him beside someone else, you immediately go to him, he's guilty. You don't blame the person that's smaller or the person that's deceased. He is responsible. You saw him. He is not a veteran of that stand. This is a tough situation. He is not a college professor, well schooled, well trained. He got up there. Make your observations. D.A. crossed him and crossed him. You decide the truth of that man and what he was doing and what he was saying on that stand.

When you look at all this, I suggest you shouldn't return a verdict of not guilty, send Tom Junta back to his hockey family and stop what's been going on here.

Thank you very much.

UNIDENTIFIED MALE: Thank you, Mr. Orlandi.

DARYN KAGAN, CNN ANCHOR: We've been listening in on a Cambridge, Massachusetts courtroom. Thomas Orlandi Junta, the defense attorney for Thomas Junta, the man accused of -- the hockey dad accused of manslaughter in the beating death of Michael Costin. It looks like the prosecutor is getting ready to make some comments. I thought we were going to have a break here before she speaks.

Let's go ahead an listen in.


SHEILA CALKINS, PROSECUTOR: Ryan Carr, the most significant witness, what did Mr. Orlandi forget to tell you that the gentle giant did that Ryan Carr saw? Ryan Carr saw one, two, three, and did he stop? Yes, he stopped. But what did he do before Michael Costin died on the ground? He took his head and he slammed it into the mat. Gentle giant?

When I was in front of you before, ladies and gentlemen, I told you that the commonwealth would give you all evidence you need to find the defendant, Thomas Junta, guilty of manslaughter, and the commonwealth has done that. The commonwealth has given you more than enough evidence to bring back a verdict of guilty. How did the commonwealth do that? The commonwealth called witnesses, which many of you, when we did the voir dire, and also in my opening, I told you, the witnesses that you will hear from on that stand are your eyes and your ears as to what happened that day, because they are the ones that saw what happened, how Thomas Junta killed Michael Costin. What did they tell you? Each of them was in a different position and each of them told you what they saw from where they were standing at each moment that this incident was escalating. And what did they tell you? They told you about a man who was standing at the end of a rink watching the kids play. And he saw something that got him upset. And you know what, ladies and gentlemen, he's a father. If he saw something where he felt it was getting too rough, then you know what, absolutely get involved.

But you know what, ladies and gentlemen, Thomas Junta, didn't react the way most parents would react, or the way that a parent should react -- responsibly -- where kids are involved. You go down, you open up that door and you say to the adult that you see on the ice, hey, watch out, I'm noticing things, I see this, I see that, slashing, checking, whatever he saw, and whatever he was concerned with, absolutely he had the right to bring to Michael Costin's attention.

But what did he do? What he did is he yelled out to Michael Costin in an aggressive loud manner, to the point where people on the end of the ice could hear him yelling. Is that the way a responsible parent would react? He then leaves, and he admits absolutely he was mad, and he goes down to the end of the ice and he stands there, waiting for his kids, and he sees something else that gets him angry, even more angry. He sees his son take an elbow. Again, absolutely he should have been upset and he could have done something in a responsible manner. But what does Thomas Junta do? He starts yelling in front of the kids, at his son.

He starts yelling at them, standing in the locker room to the point where people walking by could hear, because Michael Costin reacted to that yelling. He is yelling at his son, if you're going to play, you've got to defend yourself, these cheapshots, you got defend yourself. Is that the reaction of the responsible father?

And when Michael Costin walks by, Thomas Junta is angry. He is yelling, he's angry, he's loud, and Michael Costin walks by, come on, ladies and gentlemen, it's reasonable inference that he heard Thomas Junta yelling. There is no secret that Thomas Junta was yelling, and he walked by to go into locker room one, and Thomas Junta -- and I said to Thomas Junta, where was Michael Costin when he said that? What did he say? He was right at the door to the locker room, right by that wall. What did he say. That's hockey. That was Michael Costin trying to diffuse the situation, or was Michael Costin trying to say, what is up with you? Why are you standing there yelling at your kid? We don't know. But we know we heard.

What does Thomas Junta do when Michael Costin says that? Thomas Junta is like this. He hears the remark, and he whips around and he tells you, I took two steps out into the alcove. Oh, well, then that must have left about what, a foot or so between you and Michael Costin? Yes. What did Michael Costin do? He put his chest up to me.

Now, ladies and gentlemen, you will have an opportunity to look at Thomas Junta's statement and go over it carefully, because what he said next isn't anywhere in any witness statement or any audio statement of Thomas Junta's. The first time that he says it is on the cross-examination, and I suggest to you when he realizes, uh-oh, I'm sounding like the aggressor. I turn around because I hear something, I step two steps out into the alcove, and I'm within a foot of Michael Costin. And what does Michael Costin do? He puts his chest up to him. Doesn't say anything, he puts his chest out. And what does Thomas Junta say? He bumped me.

Well, Mr. Junta, he bumped you. Did you hit chins? Did you hit faces? No. And you saw, he bumped me right here. How did two men bump and not make contact with their faces? these are two men that are almost the same height. Mr. Costin has skates on. How does that happen? It doesn't make any sense. It's just not reasonable. But what I suggest to you is happening at that point is that Thomas Junta is getting madder and madder. He was getting more and more upset.

And what did all of the witnesses tell you? What they told you, ladies and gentlemen, was that he had Michael Costin up against that wall. And you know when you look at the bigger picture, ladies and gentlemen, what did all of the witnesses see? Thomas Junta step toward Michael Costin, Thomas Junta with Michael Costin up against the wall. Some witnesses saw a punch, some saw a cut on Michael Costin's face after the incident. Madder and madder. He was getting more and more angry. And then the men jump in and they stop it.

Now, at that point, ladies and gentlemen, Nancy Blanchard hears -- go back up for a minute. Nancy Blanchard hears a commotion. Jenny runs in and says, there's a fight. Jenny at this point has heard the yelling. She runs in and tells Nancy Blanchard. Nancy Blanchard run out and she looks, what does she see? She sees the men holding on to each other. She runs back. But what's happening? She tells Michael Quinn, go get Mike Corto (ph), there's a fight. So what happens, Mike Quinn comes running, he looks, and what does he see? He sees Junta step forward and punch Michael Costin. And then what does he see? He sees Michael Costin up against the wall. What does Nancy Blanchard see? What does Jenny Briggs see? What do all of the witnesses at some point when they are running around and looking see? Thomas Junta with Michael Costin up against the wall. And some of them see the punch.

And what else do they see? Even Mr. Junta's own witnesses, those two little boys, saw Thomas Junta with Michael Costin up against the wall, even those two little boys. What does that tell you? Thomas Junta was mad, he was angry. Michael Costin sliding down the wall, trying to keep his balance, kicking out. Look in that statement, ladies and gentlemen, for the "Michael Costin slammed his skates into my foot." You're not going to find it.

But how does he explain to you from that witness stand Michael Costin sliding down that wall with him over him, because that's what all of the witnesses said, including his two witnesses. Well, he slammed his skate on to my foot, first time. None of the other statements that he ever made to the police, ladies and gentlemen, included anything about that.

The fight's over. He goes into the locker room and he says to his kids, come on, hurry up, let's go. For some reason he doesn't want you to believe that Nancy Blanchard or anyone else said to him, you got to leave the rink. He wants you to believe, hey, I retreated. I retreated, I went outside. I retreated. He didn't retreat. He was told to get out. He goes outside. He's out there for one or two minutes, he claims. Some of the witnesses said it was even less than that. But he gets outside and does he stay out there? No. He comes back in, and what does Nancy Blanchard, Naveta Pitch, Rachel, Ryan Carr, what do they all say?

He comes into the lobby, Nancy Blanchard told you, ladies and gentlemen, that he comes in, his fists are clenched. He is angry. He has got a look of anger on his face. What does Naveta Finch tell you? Well, she is much further away than Nancy Blanchard, because Nancy Blanchard is close enough that she gets this bruise. What does Naveta Pinch say? Stone cold, sober. That's the look on Thomas Junta's face. Is that a look of someone who's concerned about his kids in there going into the ice rink to get his kids? Stone cold sober.

What does Nancy Blanchard say? Angry. Fists clenched. Naveta Pinch, hands down, lumbering. Stone-cold sober. They all have him going into the same door, so does Thomas Junta, going through last door. But what happens? Nancy Blanchard tries to stop him. And Nancy Blanchard puts her arm up, and Thomas Junta gets her arm with either his fist or his forearm, and this is what happens to Nancy Blanchard. And you know what, ladies and gentlemen, ask yourself, here's a woman who sees a man kill another man with kids all around. Yes, she's upset, yes's she's emotional. She is concerned for those kids and she's concerned for Michael Costin.

Because what I suggest to you, ladies and gentlemen, is when she saw Michael Costin's face change and his eyes get bigger and the side of his head get purple, that she saw Michael Costin die, and yes, the EMTs were able to bring him back long enough to get him to Leahy Clinic so that he was on a respirator. But what Nancy Blanchard saw that day, ladies and gentlemen, is what Dr. Kessler and Dr. Canfor described, within seconds, he was going to leave out.

So would she have thought or would anybody have thought of herself, of a sore arm that she noticed that day? Because she said, yes, I noticed my arm was sore. But was she really concerned about herself? Well, what happens, how long does it take a bruise? Use your common sense. When you pinch yourself, does the bruise come immediately? No. It takes a day or two. And when did she tell trooper Burke and sergeant O'Brien about this? Two days later, July 7th.

Naveta Pinch says that she didn't see if anyone else was in the lobby. She had Rachel. She had Carolyn. She is talking to them. But Thomas Junta goes through. And what did Nancy Blanchard see? She admits, I couldn't see really what Michael Costin, exactly where he was. But I saw him, I saw a left profile of him walking from the locker room to the snack bar. What does Jenny Briggs say? I saw the -- I saw him coming straight at me. He was -- like he was going to the men's room, walking straight by the doors heading towards the men's room. Again, that means his left side, his profile was facing outside. What does Rachel and Naveta hear? They hear a commotion, again, in that area over by the far door. What does Ryan Carr see? Everyone sees a few of it. Everyone sees a piece of it. What Ryan Carr told you, and he showed you from the stand, he sees Thomas Junta's arms -- strike that. First, he sees Michael Costin, and this is the way he showed you, I believe. He sees Michael Costin walking straight ahead and do this, because he said that his left leg went up, he lost his balance, and Thomas Junta took advantage when Michael Costin lost his balance.

Now I as you, as men on the jury, what does a man do that he turns around, he is walking and he turns around and he sees a 270- pound man coming at him that he had just had an incident occur? Would he be shocked? would he jump back? What is he going to do? Of course he's going to jump. Of course he is going to look over his left shoulder and go like this. Because a 270-pound man is lunging at him. Those were Jenny Brigg's words -- lunging at him.

Nancy Blanchard sees Michael Costin's arm goes back. She sees Thomas Junta going at Michael Costin. She said, they were going to fight again. She picks up the 911 call. Yes, she takes her eyes off them. But what does Ryan Carr see? Ryan Carr sees the arms come out. Junta blocks what he thinks is going to be a punch. They grab each other and they start moving. Again, all of the witnesses, they moved from that spot over to where the garbage cans were. They end up on the ground. Rachel says -- and I suggest to you that Rachel saw the last part of that fight. Because what does Rachel tell you? Rachel tells you that Junta tackles Costin.

For a 12-year-old seeing a 270-pound man throw Michael Costin to the floor. Is that a tackle? I suggest to a 12-year-old, it certainly may have looked like one. And What does Jenny Briggs say? Thomas Junta lunged at Michael Costin. Which direction did he have to go in order to reach Michael Costin? He had to go to the left. What does Ryan Carr see? He sees them going over his left shoulder. That means that he had to be beyond Thomas Junta and look back as to where Thomas Junta was coming in.

The eyes and ears of you, the jury, this is what the witnesses and why they are so important and what they said.

Rachel said that she sees Thomas junta throw Michael Costin and tackle Michael Costin and throw him to the ground. She is 12 years old. She is with her friend. She is with Naveta Pinch. And the reason I suggest to you that she saw those last three punches, is because what did she say? I didn't see Michael Costin doing anything. But what does she see? One, two, three.

What does Ryan Carr see? I suggest to you, ladies and gentlemen, he saw those last three punches too. Because he's coming off the ice, remember, each and every one of you walked out on to that ice because there was a runner out on to that ice. And what did you do? You're coming back off the ice. He looks, he sees it going on, he is skating. He looks down, he steps over, he loses site. He turns around, he walks, he runs, trying to run with skates on. He looks at the alcove. He is watching them. He looks at the alcove, he throws his bag down, takes his eyes off. He has to get up, come around. The vending machine is there. Get far enough out so he can see again. They are already on the ground. And what does he see? Three or four punches.

And what else? Michael Costin starting to get defensive by the third punch. And what does he add? Thomas Junta takes his head and slams it into the floor.

Self-defense? Does that sound like self-defense to you? Thomas Junta would have you believe he is kneeling down next to Michael Costin. Try it. Try and do what Thomas Junta claims he did. He claims that he is on the side of Michael Costin, and let's for a minute assume that Thomas Junta -- Michael Costin is laying here, his head is towards you, and his feet is towards the alcove. Thomas Junta would have you believe that he's down on the back of his heels, and he's got -- Michael Costin has a hold of his left wrist, a hold of his left wrist. And he is trying to back away from all those punches that Michael Costin is throwing at him. So he is off balance trying to punch Michael Costin, off balance, trying to punch Michael Costin.

If that's the case, ladies and gentlemen, where would the abrasion be on Thomas Junta's knees? They would be on the front of his knees. And where is the bruise or the abrasion on Thomas's Junta's knee? Right there. The inside of his knee, which I suggest to you, ladies and gentlemen, is more consistent with all of the other witnesses have been doing, straddling. Nancy Blanchard has his left knee on Michael Costin's left shoulder, and how would his knee be at that point? It would be into the floor.

You heard the doctor say about and Dr. Kessler about when you fall down and you break -- the abrasion or you scratch yourself, where is the raspberry?

Ryan Carr says I could see his left knee right next to Michael Costin. I don't know what he was doing with his left knee. Could have been on the other side. Could have been on top of him. What did the two kids say? Tom, Dad, was on Michael Costin's legs. He was not next to Michael Costin the way he describes. He was on top of him straddling him. He was over Michael Costin, and he was pounding Michael Costin on the left side of his head.

If Thomas Junta was hitting Michael Costin with these off-balance punches, trying to get his wrist away, would he have caused the damage that Stan Kessler, Dr. Stanton Kessler testified to you about? I suggest not. It just doesn't make sense, He wants you to believe that there were only three punches, but, ladies and gentlemen, you have Nancy Blanchard, who is standing within two feet of Michael Costin's head, who says the day of to detective McKenna, oh, my God, there had to have been 10-20. She calms down and she says, six to 10 to trooper Burke, and that's what she testified here. It's your memory, but I didn't hear her say anything about 5-8. I believe she said 6-10. But it's more than three.

And what does Jenny Briggs say. Jenny Briggs said it went on and on and on, at least 10. But if you believe that Thomas Junta only hit Michael Costin three times, I am going to ask you to do something. Think about Nancy Blanchard and Jenny Briggs, these two hysterical women, who have never seen a fight. But who was closest, who was standing at the head of Michael Costin within two feet, and standing within a few feet in the other direction? And what do they say to you? They are watching it, your eyes and ears. They are watching Michael Costin's head. And Thomas Junta is punching him so many times that they form later the thought, oh my God, he's going to kill him. They formulate the thought, and then they speak it. And how many times, stop it, you are going to kill him, and think of Jenny Briggs, think of your kids, my God, you are going to kill him, stop it, he's going to be brain dead, stop it.

Three quick punches? Now granted those three women may have been upset and they may have been emotional, but there was plenty of time for them to see that Michael Costin was in trouble.

There was more than three punches here, ladies and gentlemen. And you know what, the medical evidence showed you that. Dr. Kessler was up there for hours. And what did he talk about? Fifteen areas of trauma. And you know what, Dr. Kessler said, absolutely. One blow could cause the vertebral artery to tear. But not in this case. There was more than one blow. How do you know that? Well, Dr. Kessler told you about 15 areas of trauma, 15. And think about it. Where was most of the area of trauma that he spoke about? He talked about the brain, and how it was so swollen. He talked about the bleeding, the subarachnoid hemorrhage. And remember that term. He also talked about the deep trauma to the ligaments and how they were stretched, and he talked about how strong they are, left side neck, deep, deep hemorrhage, deep trauma, left interior shoulder, deep trauma, deep hemorrhage. A 7-inch hemorrhage on the left side of Michael Costin's head, 7-inch hemorrhage, and you saw the photo, all the left side.

And then he had everything else. He had the bruise on the back. He had the bruise on the buttocks. Ladies and gentlemen, three blows? One, two, three. Off balance, with holding your wrist? That's another thing I want you to look for. When you look at this transcript, look at what Thomas Junta says in his statement and then about what he said on the stand. He ducked, defensive move block, Michael Costin on my back, picked him up -- I suggest like a sack of potatoes -- carried him, feet dangling. Where is it? Look at all his statements. Five police officers he came in contact to that day. Where is it? Where is it?

The left wrist, where is it? First time, right there, for your benefit. Michael Costin's got the death grip on his left arm. You know what, ladies and gentlemen, you have the photos, look, where is the injury to his left wrist by this death grip he was trying to get away from? There is none. Because there was no death grip on Michael -- on Thomas Junta's left wrist.

I want to talk a little bit, just briefly, about Dr. Canfor. Dr. Canfor testified there's absolutely no damage to the brain from a shaking type movement to Michael Costin, because if -- if there was, there would be subarachnoid hemorrhage. Hello, Dr. Canfor. You just got done saying that Dr. Kessler's report, fine job, great job, fine medical examiner. I agree with all findings. How prepared was he? No subarachnoid hemorrhage? Dr. Kessler testified about subarachnoid hemorrhage for a long time, and he told you, he had Michael Costin's brain, and he showed you on the photograph all the subarachnoid hemorrhage. How prepared was Dr. Canfor? How much credibility can you give to him? He listens to nobody but the defendant's story? Oh, three punches. He reads none of the police reports, the witness reports of everybody that you heard from? How much credibility can you give Dr. Canfor?

You know, ladies and gentlemen, the last thing that Thomas Junta said to Trooper Burke, and he was asked about that -- I think that was the last question that he was asked by the defense attorney, I wish it never happened. I hope the guy is OK. He wished it never happened, ladies and gentlemen, because he is sitting in a police department, in an interview room, trying to explain why Michael Costin is at Leahy Clinic. And think about it for a minute. First officer, officer Murphy -- actually let's go back to sergeant Cormier -- oh, the other guide is inside laying down. Officer Murphy -- the guy lunged at me, I punched him, first fight.

Second fight. What does he say about the second fight? He says, "I got the better of him and I got him with a few more shots." "A few more shots." Well, the last three punches with a few more shots, and he had the better of him before those last three punches and before the head slam into the floor. You know, tears come very easily, ladies and gentlemen, at this point, but you know, one of the things that the judge is going to say to you, because this is a case, ladies and gentlemen, everyone is human, everybody has sympathy, for both sides. We wouldn't be human if we didn't.

It's hard to sit and listen to a 12-year-old boy testify on his father's behalf. It's hard to hear another little boy, best friends with that son, come in and testify. And you know what? It's also really hard to think of Michael Costin's children without a dad. But that's the reason that you were picked as jurors, and that's the reason you have to leave all the sympathy and all the bias outside this courtroom. When you were assigned each one of those seats, you were assigned to decide the case on the evidence and to apply the law. You can't consider sympathy, for either side. You have to look at the facts and decide it on the facts. And I am going to ask you, ladies and gentlemen, to find Thomas Junta guilty.

UNIDENTIFIED MALE: Thank you very much.

Ladies and gentlemen, I'm going to take a 15-minute recess, and then you will get my instructions.


KAGAN: The judge calling for a 15-minute recess in the manslaughter trial of Thomas Junta. You can see him there standing behind the prosecutor and next to one of his defense attorneys.

Today we listened to closing arguments from both the defense attorney and the prosecutor, not surprising, painting two different pictures of what happened on that day back in July when Thomas Junta and Michael Costin got into a fight at their son's hockey practice, which ended in the death of Michael Costin.

Whether a case of self-defense, as Thomas Junta's attorney would like you to believe, or a case of a man gone out of control and beating a man to death, as the prosecutors would like you to believe, we will have to wait and see what the jury decides.

Let's bring in our legal analysts Cynthia Alskne to help us understand what we heard.

Cynthia, good morning.


KAGAN: First of all, the order here, isn't the usual routine that the prosecution would go last? I would expect the defense to get the last word.

ALSKNE: No, the prosecution goes last, because the prosecution has the burden of proof. In some states, the prosecution goes first, then the defense goes, and then the prosecution has rebuttal, and in some states, the defense just goes first, and the prosecution goes last. But the prosecution always goes last.

KAGAN: All right, now let's look at some of the points -- is that your cell phone?


KAGAN: Lose the cell phone for a moment.

Let's look at what the defense attorney was talking about, Thomas Orlandi Jr. He pretty much was trying to paint picture of two men who got into an out-of-control fight, saying that his client was cooperative with police, something he never wanted to happen, and the final two words that he wanted to stay in the minds of the jury painting Thomas Junta as a gentle giant.

ALSKNE: Right, that was theme throughout. I think it was an effective use of a theme. He brought it up several times. It was a good demonstration today of the difference between the way prosecutors close and the way the defense attorney closed. The defense attorney, you noticed, went witness by witness and tried to just make the whole thing sound confusing so that there would be reasonable doubt. The prosecutor went chronologically and went through the whole story, sort of a forest-versus-trees approach with the prosecutor in charge of the whole forest, and she was very effective, I thought.

KAGAN: She was very physical in her closing statements, actually getting down on the floor and kind of trying to recreating what she thought happened, and how that she doesn't think the physical evidence stands up what he is saying, what Thomas Junta is saying, with argument of self-defense.

ALSKNE: Right, she did an excellent job at demonstrating and getting away from the podium. One of the things that is most effective in making an argument to a jury is to get away from your podium, away from your notes and ruffling of papers and look them in the eye directly and tell them what you think happened and demonstrate. She was very effective at that.

I thought it was a weakness in Mr. Orlandi's argument, although he is clearly an excellent arguer, that he stayed and ruffled his papers and didn't appear to deal with them directly, and just wasn't as fast with the evidence. Did you notice that she would make a point and then she could immediately pull up the photograph which would supported her point. For example, when she was discussing the women's bruise, she immediately had the photograph that she showed to the jury of the bruises. When she was talking about it was improbable the way the defendant talked about how he was sitting on the victim at the time of the victim's death, when he was beating him, and she could immediately call up the photograph of the defendant's bruise, and show how didn't make sense. She was very good at that.

KAGAN: All right, Cynthia, we're going to have you stand by. We want to bring in our Michael Okwu, who is covering the trial for us. Michael, we heard the judge say, I think, a 15-minute break, then the jury comes back and hears instructions from the judge.

MICHAEL OKWU, CNN CORRESPONDENT: That's exactly right, the judge will instruct the jury after a 15-minute break. We do not know how long that instruction will take. But we assume that it can take much longer than an hour, because the judge who has been very deliberate about what is going to happen today has said that the jury, in all likelihood, will get the case sometime between 12:00 and 12:30. He will instruct the jury, of course, about what, essentially, what is evidence, what is presumption of innocence, all of those legal matters that we're all very familiar. He will try to make that very clear to the jury, so they can begin the very tough work that is ahead of them. So obviously, they have to decide among a number of things. Was this manslaughter? Involuntary manslaughter? Was there Excessive use of force here? And of course they can decide to acquit Mr. Thomas Junta all together.

KAGAN: Thank you.

Cynthia, picking up on Michael's point, it's not just so simple just to say manslaughter or not, there are other choices this jury will have?

ALSKNE: Well, manslaughter, the way Massachusetts law is, the law prohibits manslaughter, the written code. But the case law over the years, beginning back in England, developed a common law, and the case law has two different types of manslaughter, voluntary and involuntary. And voluntary is the sudden heat of passion of killing of somebody without a legal justification, and involuntary is in the commission of some act not a felony, killing somebody. In this case, it's battery. So the jury will have a choice between voluntary manslaughter, the sudden heat of passion. For instance, a man comes in and sees his wife in bed with someone else and he ends up killing him. That's the classic voluntarily manslaughter case. Or an excessive use of force, voluntarily manslaughter, or involuntary. There is three different types, in other word. And then the jury will also get extensive -- important and detailed instruction about self-defense and those elements as well.

KAGAN: We'll be watching it. Cynthia Alskne, thanks for your insight. Michael Okwu, thank you for your reporting. We'll have more coverage in the next hour. Right now, we get in a quick break and the news continues at the top of the hour.




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