| |
Blog of Adam Daifallah -- author, journalist, law student. Lover of politics, writing, golf, curling, fitness, fashion, bacon and maple products -- not necessarily (but probably) in that order. Partisan of the Anglosphere. Contact me via email at adam@daifallah.com. This summer I am joined by Keir Wilmut and Omar Soliman.
Friday, July 13, 2007
A witness for the defense
Victory has a thousand fathers, and defeat is an orphan. Similarly, it seems, a guilty verdict has a thousand bloggers spinning their theory of how the defense blew it.
Far from me, a not-quite-yet-lawyer, to criticize Eddie Greenspan, but I think Lord Black should have taken the stand.
The word on the street during the trial was that Lord Black wanted to testify, but his lawyers talked him out of it via (in part) a particularly vigorous mock cross-examination. Given that the defense seemed to be going well, the logic went, why give the prosecution the chance to regain ground?
During cross-examination the prosecution would have scored some points. Lord Black’s, er, lordly manner would have come out, and he no doubt would have used more than a few ten-dollar words. His lawyers were likely concerned that this would alienate the jury and make them dislike him.
This risk would have been worth taking: not testifying was a missed opportunity to explain why there was no crime. It also raised doubt as to his innocence in the minds of the jury members.
The defense argument on the non-competes was that they were properly approved payments for a service (the service not to compete). Who can give a fuller and more satisfying explanation of how they came to be in the contracts, why they were justified, and how they were approved: Eddie Greenspan or Conrad Black? On the obstruction of justice charge, is it more persuasive to hear from Lord Black’s secretary as to the contents of the boxes, or him?
It was David Radler’s word versus Lord Black’s, and Lord Black didn’t say a thing.
Concern that Lord Black’s effusive manner would alienate the jury seems overblown. Given that the prosecution had described him as a thief and a fraudster, his image in the courtroom only had room to go up. Having met Lord Black, I can report that he comes across as polite and quite amiable – hardly the conniving con artist portrayed by the prosecution. Expecting a slick fraudster with verbal diarrhea, the jury would have been pleasantly surprised.
But most importantly, I think juries expect an innocent man to want to testify. Even though it is a serious error of law for a trier of fact to make a negative inference from an accused’s decision not to testify, I think jurors frequently do precisely that. Not on any sort of a rational, conscious level, but on a sub-conscious, gut-feel level. If I was accused of a crime I didn’t commit, that voice says, I’d use every chance I had to proclaim my innocence.
From Solomon L. Wisenberg’s White-Collar Crime: The Crash Course
Unless you have a serious criminal record, you should almost always take the stand if you are the defendant in a white-collar crime case. Irrespective of any instruction it receives, the jury will usually not believe that you lacked the requisite criminal intent if you are not willing to look them in the eye and tell them so. We have all heard horror stories about white-collar crime defendants who took the stand and made the government's case stronger through unbelievable testimony. Nevertheless, I am firmly convinced that in most of these cases the result would have been equally disastrous if the defendant had stood silent. There are exceptions to every rule. The decision whether to take the stand will differ with each individual defendant and case, and will sometimes depend on intangible factors. But all things considered, it is best for the white-collar criminal defendant to testify.
In America, unlike Canada, jurors are allowed to discuss the case and their deliberations – so over the coming weeks we’ll get more insight on how they reached their verdict, and whether testimony from Lord Black could have changed the outcome.
Edited to add: Mark Steyn agrees:
When you look at how much of the case Conrad & Co were acquitted on, it's hard not to conclude - as Lord Black's friend and former Hollinger director Alfred Taubman did of his own travails - that he was convicted because he did not testify. In particular, the charge that looks like ruining his life - a potential 20-year conviction for removing boxes containing documents he had already sent to the SEC - is one that could only be explained and mitigated by understanding what was in his head. Not what was on camera, what his secretary was thinking, who was in the parking lot, or anything else. The circumstantial evidence was too appealing to be overridden by anything but the testimony of the defendant himself.
# posted by Keir Wilmut : 4:37 PM
|
