Part 5. GOING TO TRIAL
A. Counsel’s Credibility Is A Key Factor
Your attorney’s credibility, particularly in a white-collar crime case, cannot be emphasized enough. The jury must see your lawyer as a straight shooter. The minute the jury perceives that a white-collar lawyer is engaged in any kind of trickery, the consequences for you will be devastating.
B. State Of Mind Is All Important
Most successful white-collar crime defenses are won on the issue of intent. Your lawyer’s focus must be on convincing the jury that you did not intend to violate the law or to defraud anyone.
C. Taking The Stand
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.
D. Businessman Trying To Run A Real Company
In a white-collar prosecution, your lawyer should seek to convince the jury that you are a responsible citizen– putting people to work, getting things done, and contending with government red tape. The unspoken message should be that your accusers are not doers, but are those who sit back and carp at people who achieve.
E. Don’t Personally Attack The Prosecutor Or Case Agent In Front Of The Jury
It almost never works. It usually helps to sink your case. Most juries bond with the prosecutor and the case agent. Only in the most unusual circumstances, or in cases of clear agent misconduct, should your attorney employ this tactic. The jury must not believe that by acquitting you they are accusing the prosecutor or case agent of anything. Your attorney must convey to the jury through spoken and body language that you both respect the prosecution, but that, in this particular case, the prosecution made a mistake.
F. Do Attack The Cooperator
One of the ways to convince the jurors that the prosecutor made a mistake is to convince them that the main cooperator is a pathological liar who will tell any falsehood he can think up about you in order to get a significant reduction in his own sentence. This is usually pretty easy to do, since most big cooperators are huge liars and do have the potential to get major sentence reductions for their cooperation. Extensive use of the Guidelines and the plea bargain agreement in cross-examining a cooperating witness is advisable. Comparing the possible Guidelines sentence if the cooperator had been tried, convicted and punished for all of his crimes with the possible Guidelines sentence he will receive under the plea bargain agreement is a very effective tool.
G. Don’t Be Arrogant
Your attorney should be competent but friendly. Juries respect a self-confident trial lawyer. They are not amused by a bumbling idiot. They usually hate an arrogant show-off.
H. Show That Money Gained Was The Normal Fee
No matter what the alleged overarching white-collar crime is, if you did not receive any ill-gotten gains or if the money you received was your normal fee, such as an attorney’s fee, for the action you engaged in, the jury will be reluctant to convict. Juries are particularly unwilling to convict professionals who did not collect over and above their standard professional fee.
I. State in Opening What You Will Prove
Your attorney should lay his case out in the opening statement in a confident yet friendly tone. His language should be forceful and positive. He must not be on the defensive. He must state what he will prove, both generally and specifically. He must not rely on the prosecution’s need to establish proof beyond a reasonable doubt. He must tell the jury that he will prove your innocence to them. If your white-collar crime lawyer believes in you and in what he is saying, the jury will tend to believe it to. It will shape their perception of the evidence. It is impossible to overestimate the importance of the opening statement to the success of your case. You should insist on listening to your attorney’s proposed opening statement well before trial, and you should listen to several run-throughs.
J. Pay Attention To Brady Issues
The defendant is entitled to obtain all exculpatory evidence in the government’s possession, under the authority of Brady v. Maryland and progeny, in time for its effective use at trial. This includes impeachment evidence, such as prior inconsistent statements. The defendant is also entitled, under the Jencks Act and the Federal Rules of Criminal Procedure, to obtain prior statements of a government witness, if the statement relates to the subject matter of the witness’ testimony. The defendant is entitled to these statements no later than the conclusion of the witness’ testimony, but as a practical matter the statements are usually turned over in time for the defense counsel to examine them without delaying the trial. Your lawyer must be keenly aware of all Brady and Jencks Act issues during a white-collar crime case. You should constantly seek access to all handwritten or hand printed notes of any testifying agents (which you are entitled to under the Jencks Act) and to all 302s (typed agent interview reports) of any testifying witnesses (which you are generally not entitled to under the Jencks Act, unless the witness is the agent who wrote the 302 or the witness has read and adopted the 302, but which you may be entitled to under Brady). A white-collar case generates countless reports of interviews, both formal and informal. Inevitably, witnesses will testify to things which are inconsistent with their prior statements as reflected in 302s and agent notes. These 302s and agent notes are a fertile and vital source of cross-examination material. It is extremely difficult for the prosecutors to participate in the trial and simultaneously determine, witness by witness, which 302s and agent notes should be turned over under Brady, in time for effective use, based on prior inconsistencies. You must constantly press this issue, outside of the jury’s presence. (You must also insist that the prosecutors compare the agent notes of a witness interview with the final 302, in order to discover any material inconsistencies.) You must let the prosecutors know that you will never give up on this point and that you will file a Freedom of Information Act request for the 302s and agent notes after the case is over if you do not receive them at trial. The prosecutors must be made to fear what will happen to them if they do not liberally disclose this kind of information to you. Prosecutors also have a special duty under recent case law to affirmatively examine the personnel records of testifying government agents. You should insist that this be done and inquire on the record into precisely how the prosecutor performed his or her duty. With respect to Brady and Jencks motions and other standard pre-trial motions, it is also important to eschew boilerplate and to tailor the motions to the specific facts of your case.
K. I Saw What You Did And I Know Who You Are
It is safe to assume that someone on the jury is always watching you, your lawyer and the entire defense team. Be conscious of your body language, individually and as a team member. You want the jury not only to like you, but to like the way your group operates as a unit. Your attorney should treat his colleagues and subordinates with respect. Remember that the prosecution has an advantage in this regard, since it will usually be closer to the jury box. At least occasionally, the jury should see your lawyer interacting with the prosecutor in a friendly and professional manner. This is usually the right thing to do, and it can also have the advantage of subtly causing the jury bond with you and your attorney in the same way that they automatically bond with the prosecutor. You must believe in, summon and exemplify the persona of an innocent person, wrongfully accused and determined to get his version of events in front of the jury. This persona should infuse every aspect of your being while on trial and should permeate your entire defense team. Like your attorney, your credibility in front of the jury is all-important. You must never take off this persona–not even for one moment.
Conclusion: A High Stakes Game Played For Keeps
White lies, puffery and deception of competitors are everyday occurrences in the business world. During periods when the government is cracking down on white-collar crime, these common peccadilloes, usually overlooked, can bring you to the attention of the federal authorities and land you in the middle of a criminal inquiry. Upon learning that you are under the federal criminal microscope, your first course of action is to seek out a competent white-collar crime defense lawyer, shut your mouth and listen to his or her advice. Every step that you take is crucial and every misstep carries the potential of sending you to jail. You must learn not to panic–to be careful and calm but not arrogant. You must also be patient. Remember that white-collar crime inquiries are complex and time-consuming by nature. Prepare to be in it for the long haul. Above all, have courage. Your future literally depends upon it.