Feb. 21 (Bloomberg) -- A decision by R. Allen Stanford to testify at his investor fraud trial may focus juror attention on his credibility without helping him win acquittal, three white- collar criminal defense lawyers said.
Jurors in federal court in Houston were told by a Stanford lawyer during opening statements on Jan. 24 that they would hear from the Texas financier accused by prosecutors of leading a $7 billion fraud scheme.
“It makes almost everything that came before irrelevant,” said defense lawyer Barry Pollack, who isn’t involved in the Stanford case. “Either the jury identifies with and believes him and discards the evidence that came before. Or it doesn’t, and it takes every possible negative inference from what its heard.”
“It’s always a game changer when the defendant testifies,” Pollack said.
Stanford, 61, who denies any wrongdoing, faces 14 charges including mail- and wire-fraud counts that carry maximum sentences of 20 years’ in prison. While prosecutors must prove guilt beyond a reasonable doubt, defendants aren’t required under the U.S. Constitution to testify or prove their innocence.
Robert Scardino, a Stanford attorney, didn’t tell jurors when the defense team would summon its client to the witness stand, or whether Stanford has decided since then against testifying. U.S. District Judge David Hittner, who is presiding over the trial, has barred lawyers from talking to the press.
At the trial, now in its fifth week, prosecutors have presented evidence and testimony from investors who bought allegedly fraudulent certificates of deposit issued by Antigua- based Stanford International Bank Ltd., as well as from the executives who helped sell them.
The witnesses included government officials and former Stanford Group Co. Chief Financial Officer James M. Davis, who pleaded guilty to charges. Davis testified he knew Stanford was committing fraud and didn’t stop it.
Defense attorneys began their case last week with testimony from former Stanford employees who said they saw no evidence of fraud at the company. Some offered testimony in support of the defense’s contention that Stanford was an absentee visionary who left the details of running his operation to Davis. Stanford’s lawyers are scheduled to continue their case today.
Accused executives who testified in their own defense have fared differently with juries.
Pollack, a partner in Washington’s Miller & Chevalier LLP, represented Michael Krautz, an executive with the Internet unit of the failed Houston energy company Enron Corp. Krautz testified in his trial and was acquitted. Enron Chairman Kenneth Lay and Chief Executive Officer Jeffrey Skilling testified and were convicted of fraud in 2006.
Frank Quattrone, a former Credit Suisse Group AG banker, testified at his 2003 trial, which ended in a deadlock, and again in 2004. He was convicted of obstruction of justice at his retrial. That verdict was thrown out on appeal and prosecutors dropped the case.
Former Illinois Governor Rod Blagojevich didn’t testify in his first corruption trial, which ended with a hung jury on 23 of 24 counts in 2010. He took the stand in his second trial in Chicago and was convicted on 17 of 20 retried counts last year.
Former Hollinger International Inc. Chairman Conrad Black didn’t testify at his 2007 fraud trial in the same federal courthouse and was found guilty of mail fraud and obstruction.
Defendant testimony is a bad idea in most cases, said Eric Sussman, who led the Black prosecution and is now a criminal- defense lawyer and a partner at New York-based Kaye Scholer LLP.
“You kind of change the burden of proof, not legally, but practically,” Sussman said. “It becomes, ‘Does the jury believe you or doesn’t it,’ rather than proof beyond a reasonable doubt. That’s the risk.”
Criminal defendants often believe they can talk their way out of anything, he said. “More often than not, that’s not the case.”
Douglas T. Burns, a former federal prosecutor who is now a criminal defense lawyer in New York, echoed Sussman’s sentiments.
“It’s generally a dumb move, but desperation breeds dumb moves,” said Burns, who, as a federal prosecutor, was deputy chief of the U.S. Attorney’s criminal division on New York’s Long Island before leaving for private practice in 1996.
Defendants are generally confronted with two choices, he said, do nothing and face possible conviction or testify and risk making matters worse, Burns said.
Pollack, Sussman and Burns said the decision to testify is a choice only a defendant can make after consultation with his lawyer.
Considerations in such discussions include whether the defendant can credibly present himself as honest and truthful and cope with the rigors of cross-examination, as well as whether testifying will enable prosecutors to introduce evidence that may not otherwise be admissible.
For Stanford to succeed, Pollack said, he must “be thoroughly prepared, to the point where he can relive the events at issue in the trial so he’s able to answer all the questions.”
Most people don’t have good recall of events three or four years ago, especially e-mails or texts or phone calls, Pollack said. He said recall is challenging under the best of circumstances, and it’s more difficult when the defendant was jailed and, in Stanford’s case, beaten by another inmate.
Stanford, who sustained head injuries in that 2009 assault, developed an addiction to prescription anti-anxiety drugs and spent almost nine months at a federal prison hospital in Butner, North Carolina.
“Juries are very good at detecting when somebody’s putting on an act,” Pollack said. “If he appears to be a very different person than what was reflected in his e-mails and phone conversations, the jury’s going to see right through that. You want to be yourself, warts and all. Juries appreciate that you’re baring your soul.”
Steven Molo, a white-collar defense attorney, said a defendant “has to strike a balance between being candid and being sincere, and being appropriately defensive or indignant over being accused of a crime that they have not committed, while on the other hand not appearing arrogant or overly outraged by the situation.”
Molo, a co-editor of the 2008 book “Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers,” is a former partner in New York’s Shearman & Sterling LLP and in 2009 formed the boutique law practice MoloLamken LLP with appellate lawyer Jeffrey Lamken.
“Some level of indignation needs to be there but if it goes too far, it may turn the jury off,” Molo said.
The decision whether to testify needs to be the defendant’s, Molo said, because it’s his life and future at stake.
Burns said defendants may benefit from taking the stand “if they can somewhat rationally explain their thought process and convince a jury.”
Still, “history teaches us that the examples where the guy gets up there and saves the day are in the statistical minority,” he said.
The case is U.S. v. Stanford, 09-cr-00342, U.S. District Court, Southern District of Texas (Houston).
--Editors: Mary Romano, Michael Hytha
To contact the reporters on this story: Andrew Harris in Chicago at firstname.lastname@example.org; Laurel Brubaker Calkins in Houston at email@example.com
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