Tuesday, March 15, 2005

Let The Second-Guessing Begin

One of the first questions asked of Reid Weingarten after he left the courthouse was whether having Bernie Ebbers testify was a mistake.  Weingarten responded, in effect, that he thought it was a good decision then and, if given a second chance, would make the same decision.  The question about whether a client should testify is always very difficult, and no doubt the second-guessing of Weingarten will focus on that decision because Ebbers' testimony was, no doubt, crucial to the jury's decision. Weingarten may have boxed himself in when he described former CFO Scott Sullivan in the opening statement as "the most impeachable witness ever to hit a witness stand" (no hyperbole there).  Conceding that the fraud took place and placing the blame squarely on Sullivan turned the case into a credibility battle.  Once Sullivan did a decent job testifying, it was almost impossible for Ebbers to avoid testifying.  Unlike cases in which the focus is more on the quality (and quantity) of the government's proof and the inferences that can be drawn from that proof -- e.g. the prosecution of Martha Stewart and Peter Bacanovic -- here the question was purely one of intent/knowledge based on witness credibility.  Whether there are any lessons to be drawn in the next "honest-but-ignorant" CEO case -- Ken Lay -- remains to be seen.  The defense there may want to avoid making the credibility of one witness, such as Andrew Fastow, the key to the trial. (ph)

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