Brentwood man’s lawyer concedes punches, but no malice

that some of the symptoms associated with it — dizziness, a loss of balance and losing consciousness — mimic the signs of intoxication.

In her closing argument, Ms. Middleman told Judge Flaherty that testimony showed Mr. Parker had a drinking problem and would often pass out.

Her client, she continued, would not have been able to tell the difference between a severe injury and severe intoxication.

To find malice in a criminal case where no weapon is used, she continued, the factfinder must consider the size difference of the defendant and victim; the ferocity and duration of the attack; whether there is provocation; and the manner in which the fists were used.

She told Judge Flaherty that her client did not use a weapon in the assault on Mr. Parker, and that there was no evidence of it being a brutal or vicious attack. Ms. Middleman also noted that her client showed visible despair over Mr. Parker’s death at the police station, sobbing with his head in his hands.

“He’s certainly not this evil, vile, uncaring human being,” Ms. Middleman said. “This is not a person who intended to kill someone, or left a person on the floor waiting for him to die.”

But Mr. Robinowitz told the judge he needed to look at the totality of the circumstances.

Mr. Vankirk was six inches taller and 46 pounds heavier than Mr. Parker and, the prosecutor continued, he was angry at the victim for taking his beer.

“When you beat someone up and you see someone bleeding and leave them to lie there for 12 hours, the sheer number of hours he left him there, I think, rises to the level of malice,” Mr. Robinowitz said. “Common sense says you have to realize that’s more than being drunk.”