William Jefferson trial: Does the defendant take the stand or remain silent?
by Jonathan Tilove, The Times-Picayune
Tuesday July 21, 2009, 10:00 AM
WASHINGTON -- William Jefferson and his legal team now face the most difficult and fateful decision of his trial: whether the former nine-term Democratic congressman from New Orleans should take the stand in his own defense.
"It's the last decision you make, " said James Neal, a prominent Nashville, Tenn., defense attorney. "It's just a terrible decision to make because the case then turns on it. You can forget about everything else that came before in the case. The case now depends on how well the defendant does."
Atlanta lawyer Jerome Froelich agreed that the stakes could not be higher for Jefferson.
"What I always fear is that once you put the defendant on the stand, it changes the burden from, 'did they prove their case?' to 'do I believe the defendant?' " Froelich said.
Neal represented former Gov. Edwin Edwards in his 1985 racketeering trial. Edwards took the stand. The jury voted 11-1 to acquit. On retrial, Edwards was acquitted.
Froelich didn't put former Atlanta Mayor Bill Campbell on the stand in his 2006 corruption case, and won acquittal on federal RICO and bribery charges, losing only on a tax charge.
But both agree that there are cases that beg the defendant to step forward.
"It's dangerous, but juries like to hear from the defendant," Neal said.
"If the government's case is overwhelming and the only chance you have is to put the defendant on the stand, you have to put him on," Froelich said.
The Jefferson trial may be one of those cases.
"Putting a defendant on the stand is always risky business, but in some cases it's absolutely essential," said J. Michael Small, an Alexandria, La., lawyer who won an acquittal for Edwards in the Cascade insurance case, in which Edwards once again took the stand.
"The apparent strength of the government's case against Mr. Jefferson seems to me to weigh heavily in favor of putting him on the stand," Small said. "He's certain to be vigorously cross-examined by skilled prosecutors with a lot of ammunition, but most of those shots have already been fired and I think it's time for Jefferson to speak personally and directly to those 12 jurors."
Jefferson is facing 16 counts of bribery, racketeering and other charges. For more than a month the prosecution has been presenting testimony, documentary evidence and audio and videotapes to persuade the jury that the congressman used his office to help American companies and investors do business in West Africa in exchange for payments and retainers for members of his family. The defense argument is that in those business dealings, Jefferson was acting as a private citizen and not a member of Congress, that he drew a line between what was legal and illegal and did not cross it.
But, in the estimation of George Washington University law professor Jonathan Turley, who has followed the case closely, "given the weight of all the evidence, there is very little chance that jury would acquit on all counts."
"In a case like this," he said, "the best they can hope for is a hung jury."
The decision to take the stand or not can turn cases in unpredictable says, Turley said. For example, Turley believes Martha Stewart might have been exonerated in 2004 if she had taken the stand and shown some vulnerability in her defense, even as he thinks former Alaska Sen. Ted Stevens might have been exonerated last year if he had declined to take the stand and revealed to the jury a particularly un-winning personality. The Justice Department subsequently threw out his conviction.
Edwards testified at all his trials, and his attorneys say he was a great witness each time.
"Edwards carried the day during his direct and cross-examination in the case, and if the former congressman can do as well as Mr. Edwards did, he might win," Small said.
But Edwards had advantages over Jefferson. He was being tried in a Louisiana, not Alexandria, Va., and Edwards always played the role of the lovable rogue to great effect. Jefferson is a less charming or engaging character.
Also, despite his effective testimony, Edwards was ultimately convicted in a racketeering case in 2000, like the one brought against Jefferson, which involved accumulated evidence of multiple schemes.
"Sometimes it works, sometimes it doesn't," said Boston attorney Daniel Small (no relation to J. Michael Small), who represented Edwards in the riverboat license case that ultimately landed him in prison, but in which he said Edwards' own testimony was helpful.
The risks are obvious. By taking the stand, the defendant opens himself to a direct battering by the prosecution. A slip can open the door to new evidence against him. If the jury thinks the defendant is lying, reasonable doubt can quickly evaporate.
But there are risks in not appearing.
"The judge will instruct the jury that they cannot draw any meaning from the defendant not taking the stand," Daniel Small said. But, he said, especially with a high-profile politician, "I think the jury wants to hear from the defendant."
And most politicians, figuring persuasion is their great talent, want to take the stand.
"We had to beat him up pretty bad," said Mobile, Ala., lawyer Vince Kilborn, referring to how hard it was to persuade former Alabama Gov. Don Siegelman not to take the stand at his corruption trial, a judgment that seemed obvious to the defense team at the time, he said.
"We didn't think the government had proved its case," Kilborn said.
But Siegelman was convicted of seven of 33 counts and wound up in the same prison as Edwards, though he is out now on appeal.
Kilborn still doesn't know if putting his client on the stand would have made things better or worse.
"It's probably the toughest question in criminal law," he said.
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Jonathan Tilove can be reached at email@example.com or 202.383.7827.