Chapter 6 The Defense Case

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

CHAPTER 6 The Defense Case Trial Diary 17

With the government case rushing to a finish, serious discussions begin about whether the defendants will testify. My approach in white-collar cases is to presume the defendant should take the stand. I know the traditional defense viewpoint is the opposite. Most lawyers think the client should not testify unless absolutely necessary. The thinking is jurors blur reasonable doubt and the burden of proof when the defendant takes the stand. Maybe. For sure it is a transforming event. But after the Enron case, I started noticing a sea change in juror attitudes. I believe jurors today expect an innocent businessperson accused of crimes to get up and explain he or she didn't do it. So I say the accused should testify absent a strong reason not to. And I prep clients starting early. Still—the final determination always awaits the close of the government's evidence. And it can be a tough call for some clients, who fear the prosecutor twisting their words. I defended a bribes/kickback case recently. Company foreman and his boss, the company owner, were accused of paying to get a contract at the Miami airport. There was next to no evidence against the owner. Three guys with deals testified against the foreman. Of course, I represented the foreman. And beat the three cooperators up good, one of whom agreed he wouldn't even believe himself. Really. Now that's the rub. I call it the siren's song of good cross-exams, because too many lawyers tell the client how well the case stands and how testimony isn't necessary. Now I told my guy he needed to testify notwithstanding everyone's view we were winning. He was ready. But the night before his testimony was set, he went home with the boss—who urged him not to take the stand. And the next morning, he came in and said he'd changed his mind. I pulled him aside. I was not pleased. I told him my advice wasn't just that he should take the stand. I told him in my view not testifying would mean he'd likely be convicted. And said he had to tell me he'd accept these consequences. I knew he thought he was protecting his boss. My guy was firm. He did not testify. And the jury acquitted the boss and found the foreman guilty. I still get mad thinking about it.

In my San Juan case, I've told Luisa I think she should testify. Onereason adding to this thinking is that only a few documents relate to Luisa and there's nothing tricky to explain. So the government cross is not likely so awful.

It's a different equation for the Acevedo Vila team. My gut has been all along that they have hoped to avoid Acevedo Vila testifying. For sure he'd have serious "splainin'" to do. And so I watch the discussions with Acevedo Vila accelerate as his defense case approaches. It's not obvious what's the right call. Acevedo Vila is a public figure used to public speaking. He is a likable, smart, and charismatic man. On the other hand, he's got an ego and would be pressed to explain how the light bulb never came on. How he could enjoy the Candido high life. How his family wrote all those conduit checks. How he pushed people to help Santana. And more.

But heck—I figure it's tough decisions like this that earn all those Acevedo Vila lawyers the big bucks.

Trial Diary 18

Trial lawyers adopt personas for the courtroom. Some vary it from case to case. Some stay with the same character. The key is to be true to your nature. I like the role of the plucky, wisecracking hero. I employ some variation of this in most of my trials. In the San Juan case, at times I feel I am Spartacus. Or Scaramouche. Or maybe Zorro. Or Butch Cassidy. This is a great expression of ego, which feeds my self-delusion. Or maybe it feeds my self-confidence. I like that sense of me against a crazy world.

And humor becomes an important weapon in all this. Prosecutors and judges tend to be far too serious. And the more solemn the jurygets, the worse I think it is for the accused. So I try to keep things light. Just enough to get the jury smiling. Just enough to deflect how sad and awful criminal court can be. Clever. Never slapstick. Never class clown. Which then makes my serious moments more impactful.

So the other day, we're arguing a legal point. The jury is out. Luisa needs to use the bathroom. I ask for her to step out. Judge B. says yes but tells her if she wants to be here for the argument, she can. I pipe up that the record should reflect that Luisa does not want to be here at all. Judge B. laughed. Or during my exam of a witness yesterday, Judge B. expresses concern about a translation to English from Spanish. I tell the judge I am OK with the interpreter. Judge B. says how do you know—you don't speak Spanish. To which I quickly say, "Un poquito, pero muy malo." The jurors laughed. You have to pick your moments.

And when I took the grin off my face and stared hard at Fulgencio and exposed one lie after another, the jurors took note of my disdain. And when I was done, as AUSA Maria D. rose for redirect, she whispered to me that she would try to pick Fulgencio off the floor. She didn't.

Trial Diary 19

"Cash" is apparently the prosecution "C" word at the San Juan trial. We're hearing it over and over. Luisa took cash for Acevedo Vila. Luisa took cash from the party finance guys. Luisa had cash in her safe at the Acevedo Vila campaign. Luisa used cash to help buy Acevedo Vila nice clothes. Luisa sent cash over to the ad agency in 2006. Cash, cash, cash. I object. Judge B. overrules. Cash. So I cross-examine the finance guys. Luisa never said she thought handling cash was bad. You guys never thought cash was bad. Paying bills with cash is not bad. No more questions.

But I remember those bags of cash with wings on the government charts from the prosecution opening. And I worry. Cash. Cash. Cash. Sigh.

Trial Diary 20

Almost all the testimony in the San Juan case comes through court interpreters—three court interpreters who trade off. But all sit in court, and at times the testimony seems like a Greek chorus. The witness answers. One interpreter translates. Another interpreter chirps in with different or additional words. The interpreters talk among themselves. One of them starts a side conversation in Spanish with the witness. The interpreter then finishes the translation. At times it's hard to tell what the witness is saying from what the interpreters are adding. Especially when both are talking at the same time! Madness.

Every day, and several times a day, we hear "interpreter error." And us gringos at the defense table are left scratching our heads One of the Acevedo Vila lawyers, Harry, is a talented and well-regarded local attorney. He is the go-to guy for any serious case in Puerto Rico. I'd hire him without hesitation to represent me. Harry is often on his feet challenging the interpretations. Judge B., a gringo, then scratches his head. And we start over with a new question.

The phenomenon of interpreted testimony is especially a challenge for cross-examination. What too often happens is a questioner starts a long question but gets interrupted by the interpreter. So pacing and control of the exam are tricky. Short and noncompound questions are essential. I've kept my questions short if not sweet. And simple. And usually the Witnesses answer me even before the translation. Mostly yes or no. Even I can understand that.

Trial Diary 21

Oops. Not a good word in criminal trials. Especially a bad word for a defense lawyer cross-examining. The prosecution called three witnesses today—Acevedo Vila's secretary, his image consultant, and his accountant. All said good things about Acevedo Vila. Even better, they said great things about Luisa. And I even got the secretary to contradict both Lorna and Fulgencio. So not smart choices by the prosecutors, who made at most minor points against Acevedo Vila.

Then the prosecutors put a Puerto Rican law expert on the stand, to say that Acevedo Vila's suits should have been reported on his Puerto Rico tax return because the suits were a benefit to Acevedo Vila. Which, by the way, is not the charged conduct in this case. The indictment says Acevedo Vila and Luisa conspired for Acevedo Vila to cheat on his federal taxes. Now, my reaction is "so what." The witness is a career agent in the local tax office. What a surprise—he thinks the suits are taxable income. He thinks everything is taxable income. But the Acevedo Vila team wanted to go after this guy. OK. And they knew this guy was coming and had pulled the official English translation of the Puerto Rico tax statute. And in dramatic fashion, the Acevedo Vila team confronted the witness with a copy of the statute and pointed out that the word "benefit" did not appear in the definition of income. Great! Only the Acevedo Vila lawyers had not looked at the original Spanish text. And being Puerto Rico, that's what the witness uses. And guess what? In the Spanish text, "beneficio" appears three times in the definition of "income." Oops. And the witness said so from the stand. And the prosecutor got up and waved the Spanish text. Big oops.

Hey—stuff happens. And the Acevedo Vila guys picked themselves up and kept pressing the witness, trying to point out that his opinion was biased and not sensible. They did fine. And they say they have an expert witness testifying in the defense case who will offer the opposite opinion.

But oh, I so hate stumbles.

Trial Diary 22

We're taught never to ask a question we don't know the answer to. Sound advice. And advice many trial lawyers ignore. Particularly in federal criminal cases, where we don't get depositions and frequently are talking to witnesses for the first time from the witness stand. Now we do get documents. And we should have an idea what people will say. But we should avoid the one question too many and the answers we're not sure of. I try. Lord knows I try. But then I get going. And sometimes I get to feeling that I can by sheer force of will make the witness give me the answers I want....