Chapter 5 The Government Case and Witness Issues

• Library: How to Win an Acquittal (ABA) (2011 Ed.)

CHAPTER 5 The Government Case and Witness Issues Trial Diary 4

Trial lawyers are hams. My defense of Luisa looks to emphasize how little involved she is in the charged misconduct. The prosecutors started the case with three witnesses talking about how they cheated to help elect Acevedo Vila when he ran for resident commissioner and later for governor. Illegal contributions. Nasty stuff. Witnesses with deals. They put Acevedo Vila at meetings. They said minimal things about Luisa. So I got the first two to agree that Luisa had nothing to do with bad stuff. She was just a fund-raiser. Not at bad meetings. Not involved in bad talk. These were short and pointed crosses. The third witness corroborated the first two and never mentioned Luisa. The Acevedo Vila lawyers did a detailed cross aimed mostly at trying to undo what the witness said. Then I got up. I walked to the podium. I introduced myself to the witness. I paused. I looked slowly through my trial notes. I let the jurors watch me look through my trial notes. I looked back up at the witness with surprise. I asked, "Sir, in all your testimony, not once did you refer to Luisa, is that right?" He said that's right. Well then, I said, I have no questions. And walked back to my chair, to the laughter of the audience and the smiles of the jurors. I could have stood up and said no questions. But where's the fun in that?

Trial Diary 5

The first witness to "dust up" Luisa came and went. Lorna. Petite and soft-spoken fellow office worker wearing large glasses and simple dress. Said she worked side by side with Luisa in resident commissioner's Puerto Rico office (before Acevedo Vila ran for governor). Said Luisa was her supervisor and regularly gave her notes and instructions. Said in October 2001 Luisa asked her for a favor for Acevedo Vila. Asked for a $500 check as a loan to the campaign and promised it would be paid back. Asked that Lorna have her husband write the check. And asked if she knew of anybody else who could write a check. Lorna got her mom.

And produced two checks to Acevedo Vila campaign in the amount of $500 each. Said she gave the checks to Luisa. Said Luisa later gave her cash. Identified the bank statements showing cash deposited. Identified the checks. And in a spectacular wrap to the testimony, and over objection, opined that the endorsements on the back of the checks were Luisa's handwriting, which she said she could recognize. Ouch. Sweet little Lorna.

Now cross is all about attitude toward the witness. You want to hold out some people as truth-tellers, some as mistaken, some as liars. And you need to make sure the jurors will accept how you go at the witness.

With Lorna, I started with the "why" question. Why is she saying these things? And the problem for the defense, of course, was that the checks existed. Money did transfer. Somebody cheated. My claim is that Lorna is mistaken in saying it was Luisa.

So I pointed out Lorna had worked for Acevedo Vila for 4 years. Then he gets elected governor. And there's no spot for her at the governor's office. They put her in another agency. And she resents this. She loses her job. Luisa keeps hers. Simple idea, helped along by Lorna trying to fight me that she didn't lose her job. But she eventually conceded that being asked what agency she could go to meant not being asked to stay. And she conceded that she told people at her new job she was disappointed to have to leave. She got angry with me, and I was all apologetic and nonconfrontational. Just firm. And her anger was just what I wanted the jury to see. The not-so-sweet Lorna.

I took her through her story. Showed how time and again to agents and prosecutors, the story changed. How the claim about the husband was totally new. She said to me, "Well, they didn't ask that."

Right. Hours of grand jury and agent interviews. And never asked? I asked Lorna when she spoke to the government, What part of "tell us what Luisa said" did she not understand? She glared at me.

Then I took her to the dramatic conclusion. She knew Luisa's handwriting. Could spot it. Said endorsements were Luisa. Only, I then pulled out samples of Luisa's handwriting that I had prepared. That looked nothing like the endorsements. Nothing. Not close. Lorna agreed the samples were Luisa's. And agreed they looked nothing like the endorsements. And meekly said, "Well maybe it's not Luisa on the checks."

OK. I looked at her a moment longer. And announced no more questions.

Trial Diary 6

Not all trial lawyers think alike. I had a disagreement today with the Acevedo Vila team. A team that continues to swell. The trial started with four lawyers at the table with Acevedo Vila. Then as witnesses began, a fifth lawyer came to help with documents. Now three more are in and out of court, although there is no room at the defense table. So they sit in the audience with the Acevedo Vila family. Luisa and I sit at the far end of the defense table. I offered that we could sit in the back of the courtroom, but the judge said no.

So here was the issue. The prosecutors were calling Acevedo Vila's sister and Acevedo Vila's cousin to testify. Both wrote checks in 2001 and 2002 to Acevedo Vila. Some $500. Some $1,000. Other Acevedo Vila family members did too, including Acevedo Vila's mother. From 10 to 15 checks, totaling around $10K. These facts fit the testimony of Acevedo Vila's finance manager, a man called Moncho, who was the government's second witness and who said there was a time he told Acevedo Vila about having cash he couldn't deposit and Acevedo Vila told him to use Acevedo Vila family members. Moncho, by the way, agreed with me that Luisa was a wonderful woman uninvolved in anything he did.

So the Acevedo Vila sister was going to say someone asked her to write checks and gave her cash, but she could not recall who. And the cousin was going to say the same about writing checks, but that Acevedo Vila later gave him cash. Yes. Acevedo Vila. Now it turns out both sister and cousin were reluctant witnesses, and the cousin was crying as he sat in the witness room.

So along comes Assistant United States Attorney (AUSA) Maria D. and offers a written stipulation in lieu of actual in court testimony, reciting what the two family members would say. I urge the Acevedo Vila team to say hell no and make the family testify and extract what favor and sympathy they can in front of the jury. The Acevedo Vila lawyers, however, fear the spectacle will be unforgettable and leave the jurors negative toward Acevedo Vila. They hope reading the testimony will be less impactful. I worried it will look like they accept and agree with the testimony. They shrug. At sidebar they tell the judge this is what they are doing. Judge B. says same thing I said and warns there can be no backdoor attack on these witnesses' credibility. The Acevedo Vila lawyers tell him they understand.

So a stip gets typed up. Only it says both the sister and cousin, while they cannot recall, think a staff member asked them to write the checks. The Acevedo Vila lawyers are happy with this language. Not me. I note that Luisa is a staff member and maybe the jurors will think it was her asking, especially given the Lorna testimony. The Acevedo Vilá lawyers shrug some more. So I tell them, a bit sternly I confess, that the statement has to come out. They say they would ask AUSA Maria D. I say I needed to be clear. They can talk all they want with the government—but the statement comes out, or I don't sign off and the witnesses come into court. The statement came out.

Trial Diary 7

Prosecutors like to drop bombs on Fridays. Send the jurors home on weekends with bad stuff bouncing in their juror brains.

This Friday the trial saw the testimony of a waiter. Pablo, 20 years a waiter at a D.C. restaurant called Citronelle. In Georgetown. Pablo thinks Citronelle is one of the ten best restaurants in the world. Zagat and Michelin might disagree, but it is a very good restaurant with a very good wine list and very expensive food.

It turns out that Acevedo Vila was a regular there. With a loyal supporter and Philly-based businessman named Candido. And a tall and dark-complected woman companion whose name Pablo did not recall.

Now before Pablo testified, the prosecutors called Cándido's business partners as witnesses. They wanted to call Candido Negron Mella himself, but Candido is taking five in a big way. The partners said Candido bragged about having Acevedo Vila in his pocket and how Acevedo Vila was going to help them get dental contracts in Puerto Rico. They also testified that Candido organized fund-raisers in Philly, where their families and staff wrote checks to Acevedo Vila and got reimbursed by Candido.

Now it also turns out that the tall and dark-complected woman companion is Acevedo Vila's D.C. assistant, Eneidy. Eneidy traveled a lot with Acevedo Vila. She was in Philly a lot. Eneidy ate dinner a lot with Acevedo Vila. Many dinners in D.C, Miami, and N.Y.C.

So the prosecution took its time with Pablo. Had him identify the Citronelle receipts from the Candido dinners. Three people, 5 lobsters, 3 bottles of wine, 5 desserts. $2,000 dollar tabs. Did Acevedo Vila ever pay? Pablo smiled and said never.

Tom G. questioned Pablo for the Acevedo Vila team. Tom asked Pablo to remember him for the next time he wanted a reservation. Pablo offered him a table for Saturday night. Tom didn't have much to work with. He asked if Pablo really recalled that Acevedo Vila was at these dinners. Pablo said yes, it was his business to recall important guests. Tom sat down.

I got up. Pointed to Luisa, who is blond and very tiny and round. "Is this the tall and dark-complected woman" you testified about? Pablo laughed and said no. The jury laughed. I sat down.

Trial Diary 8

Prosecutors are sometimes just plain mean. The desire to win gets ahead of any sense of fairness or justice. One situation where this manifests itself is when prosecutors keep investigating after trial starts....