WHY THEY LOSE By: Donald V. Watkins, Esq. © Copyrighted and Published (via Facebook) on October 15, 2013 Michael Vick. Lord Conrad Black. Lewis “Scooter” Libby. Ken Lay. Jeff Skilling. Martha Stewart. Dennis Koslowsky. Bernie Ebbers. Raj Rajaratnam. Rajat Gupta. All of these people were high profile individuals with considerable public influence and personal resources, but when they became defendants in criminal cases, each one lost, and lost big. So why is it that rich, first-time offenders like these people lose so miserably in criminal court? The answer is surprisingly simple. First, each of these individuals was totally oblivious to the legal trip-wires that made him or her a poster boy or girl for the government’s public relations “issue of the day”. By failing to appreciate the tsunami of political pressure on prosecutors to go after high-profile people in corporate fraud, insider trading, obstruction of justice, witness tampering, and dog-fighting cases, each of these individuals fell victim to his or her own name. Second, once these high-flyers realized that they were in legal trouble, they made a beeline to the wrong type of criminal defense attorneys. They all hired the traditional establishment-type “white-shoe” criminal defense lawyers. These lawyers are ill equipped to effectively represent a defendant whose respected “icon” status has suddenly transformed into a low-life, publicly scorned “outcast” status. Third, once hired, these lawyers employed a strategy of media silence. Unfortunately, however, this deafening media silence provided zero defense to their famous clients while they were mercilessly lynched in the media. After the lynching, the lawyers sequestered their clients from public view, but this only fanned the flames of public hostility, which continued to grow unabated. The fall from grace to disgrace is fast and furious. White-shoe lawyers are usually baffled by this radical transformation in social standing and too often become paralyzed when this event occurs. Nothing in their litigation experience has prepared them to wage war against this kind of political and prosecutorial demon. The New Age of Criminal Trials We live in a high tech age where an accused high-profile defendant has two trials arising from the same ordeal. The first and toughest fight is in the court of public opinion. There, accusations and indictments are tantamount to evidence. TV interviews and talk show hosts serve as prosecutors, and network legal panelists act as jurors. The verdict is quick and merciless, and there is no appeal from the verdict. This is what we call real-time media justice. The last thing you should want as a celebrity defendant is a trial in absentia in the court of public opinion. Unfortunately, the judgment in the court of public opinion almost always bleeds into the subsequent criminal trial in a court of law. When this happens, it only encourages prosecutors and judges to conduct the legal proceedings in such a fashion as to achieve a conforming result in the court of law. This is exactly what happened in the case of each high-profile loser mentioned at the beginning of this article. Navigating the seas of hate and hostility in today’s legal system for an outcast client requires a unique set of knowledge, skills and abilities that is commonly absent in white-shoe law firms. Remember, the traditional law firms are used to representing establishment-type clients in a favorable environment where they are usually accorded great deference and respect by the judicial system. Many of these lawyers will not jeopardize their long-standing, amicable and ongoing relationships with trial judges and prosecutors for a single outcast client, no matter how much money is paid by the client. Winning Criminal Cases Where Losing Is Not An Acceptable Option Winning cases where losing is not an acceptable option requires a different attitude and a non-traditional roadmap to victory. Representing a public scoundrel or celebrity outcast forces the legal advocate to sail against the prevailing winds to reach safe passage and freedom for the accused. The legal knowledge, skills and abilities for this journey are not found in law books and are not taught in law schools. They come solely as a result of a lawyer’s baptism under fire in the courtroom. The journey to freedom begins by comprehending the full dynamics of the forces being leveraged against the accused. These forces combine to form a complex blend of political, social, and media spin. This blend, together with the ambitious personal agendas of prosecutors and judges, prejudicially stacks the deck against the outcast defendant. Prosecutors and judges alike seem to feel obligated to eagerly and frequently dispense a steady stream of lessons to this class of defendants. Just ask Michael Vick. His Washington, D.C. white-shoe defense team surrendered Vick on a guilty plea, without a fight, less than a month after his indictment on dog-fighting charges, setting a new defeat record in criminal cases. The Vick case also illustrates another major point in these cases--lawyers are merely technicians, not strategists. Vick’s team clearly lacked a strategist. So did the other high-profile losers. A strategist, who may or may not be a lawyer, focuses solely on identifying those human factors necessary to influence twelve ordinary citizens sitting as trial jurors to allow an accused stranger to walk out of the courtroom as a free man or woman, no matter what the prevailing public opinion is, nor how poisonous the atmosphere in the courtroom may be. Jurors are human beings. They make their ultimate decision on the basis of what seems to be fair and makes common sense to them. Human emotion and behavior always have a more lasting impact on jurors than courtroom evidence or jury instructions. Guiding the Fair Administration of Justice in Criminal Cases Favorably impacting human emotion and behavior begins in the court of public opinion. The criminal process and media coverage typically demonize the high-profile outcast. This must be quickly neutralized through a series of steps. First, the accused must be made available and accessible to the media for frank talks about the case. Testifying in the court of public opinion is much easier than testifying in the court of law. While the accused may not win complete vindication in the media, he or she can negate much of the ill will generated in the sea of hate. This is the only forum available to the accused where he or she can openly humanize himself or herself. This forum is also the first place where his or her advocate can effectively undermine the government’s theory of the case, attack the government witnesses, and criticize prosecutors, law enforcement officials, and others working in concert with them. Prosecutors and judges are very limited in what they can say and do in the court of public opinion. There are no evidentiary or procedural rules in the court of public opinion. This works to the benefit of the accused. In this court, the outcast has the most advantages. He or she must use them or risk losing them. Second, victory for the outcast defendant only comes when the defense puts the government under the glaring light of a public microscope. The government will always look worst under the microscope than any outcast defendant. Americans know that their government will mislead them, lie to them, abuse its power, act in the political interests of high-ranking political officials, and mistreat ordinary citizens. Officials often bend the rules and frequently cheat to win in high-profile cases. Exposing this nasty government underbelly will propel the accused along the long road to victory. Third, defense counsel must exploit the obvious targets of opportunity in the government’s case. For example, prosecutors must cut disgusting deals with unsavory characters. These people eventually become cooperating government witnesses. The question is never whether these witnesses are lying, but how many lies they have told and to whom they have told them. Openly count the lies in front of the trial jury. I always started the count with the question, “Have you ever lied to anybody about anything?” The answer is always, “yes”. It is easy to get this type of witness to admit to a pattern and practice of lying to a variety of people about material aspects of the case on hundreds of occasions (which I would always depict on a flip chart in front of the jury). Once the witness establishes his/her solid credentials as an accomplished liar, nothing else they have to say matters. Fourth, contrary to what they say publicly, prosecutors always shape their case strategy and evidence to get the man or woman at the top of an organization. The skilled advocate must demonstrate how they target people, not crimes. This demonstration requires more courage than brainpower. Fifth, audio and video evidence will always be more beneficial to the accused than the government. These recordings are always selective and never complete. Simply focus on what is not recorded and why. Incomplete recordings are akin to books with missing pages or chapters. They have little real value to the reader within this context. Sixth, FBI interview techniques are a goldmine for a criminal defendant. Jurors are usually shocked when they learn that the FBI does not tape record its interviews with witnesses. Instead, the FBI relies upon agents to make notes (called “302” statements) that are not shared with the witness at the conclusion of the interview, meaning the witness cannot ensure their accuracy. Over time, the agent’s 302 notes tend to mutate in the government’s favor, especially in cases where there are multiple interviews with the same witness. Seventh, the cozy relationship between prosecutors and trial judges is compounded by their political ties to high-ranking public officials, which ultimately provides enough fertile ground for questioning the integrity of any case when properly developed first in the media. Eighth, the best defense is always a relentless offense. The accused must start this offense as soon as he or she is the target of a criminal investigation. The accused must go public first, fast and hard. He or she must convey his or her side of the story in the court of public opinion. He or she must make the government the enemy by exposing everything he or she knows about the investigation and questioning its legitimacy. Prosecutors have little experience in playing defense in the court of public opinion. Remember, this is a campaign for the accused’s freedom. This campaign is a long and hard process, not a one-time press conference where the defendant’s lawyer simply denies the charges after an indictment is announced. Ninth, the outcast defendant must use the media to define his or her humanity - it is important that the public to knows the accused on a personal level. Who is the private person? Everybody knows the public persona; after all, PR experts carefully crafted this public image over many years. Define the accused’s personal value system, people skills, circle of family and true friends (who may not be rich and well-known), and acts of kindness (not tax deductible charity) to ordinary people. Downplay charitable acts and foundation giving for privileged groups like the arts community, opera, symphony, zoo, botanical gardens, and museums. Highlight examples of kindness where money was not the lynchpin for support and generosity. Finally, the accused should spend no time worrying about his or her social or professional redemption. It will not occur, even when he or she is acquitted. The sole focus must be on freedom. It is the only outcome that matters. About The Author Donald V. Watkins practiced law in Alabama and Washington, D.C. (USA) for 40 years. The former Birmingham, Alabama-based attorney litigated a string of high profile cases during his prolific career. In 1976, Watkins received national and international recognition when he secured the first-ever full and unconditional pardon issued by the state of Alabama based upon a finding of “innocence” for a death-row inmate for Clarence Norris, the last known surviving “Scottsboro Boy”. Watkins ended his litigation career in 2005 with his stunning victory for HealthSouth founder and CEO Richard Scrushy, who was originally indicted by federal prosecutors on 85 felony counts of Sarbanes Oxley and related accounting fraud charges, and faced 650 years in prison. Scrushy was the first CEO in the nation charged with violating Sarbanes Oxley. The case was featured on 60 Minutes. On June 28, 2005, Scrushy walked out of the federal courthouse in Birmingham a free man. Prosecutors were defeated on all charges in Scrushy’s case. No criminal defendant before or since has defeated 85 felony charges in a single case. The February 2, 2005 front page of The Wall Street Journal proclaimed Watkins “the real legal mastermind of the case”, and the July 25, 2005 edition of Fortune magazine featured Watkins as “The Man Who Saved Richard Scrushy”. Listing of Landmark Cases Handled by Watkins: 1. Clarence Norris, the last known surviving “Scottsboro Boy”. In 1976, Watkins won a full and unconditional pardon from the State of Alabama for Clarence Norris, the last known surviving “Scottsboro Boy”. The nine Scottsboro Boys were falsely accused in 1931 of raping two white girls on a train running through Paint Rock, Alabama. All were arrested, tried and convicted of rape on multiple occasions. The U.S. Supreme Court saved the Scottsboro Boys from the imposition of the death sentence. The pardon issued to Clarence Norris was based upon the innocence of the Scottsboro Boys, as proclaimed by the State of Alabama’s Pardons and Parole Board. This was the first-ever pardon granted by the State to a person originally sentenced to death that was based solely upon a finding that he was innocent of the charges for which he was convicted. 2. The Estate of Bernard Whitehurst v. The City of Montgomery, Alabama, et al. In December 1975, Watkins represented the Estate of Bernard Whitehurst in a wrongful death case involving the Montgomery police Department. Whitehurst was fatally shot by Montgomery police officers. The officers initially claimed that Whitehurst was a fleeing felon who shot at police while on the run. Watkins’ investigation revealed that Whitehurst was shot in the back, and that the gun found beside his body was “planted” by police. The case evolved into a nationally recognized scandal that resulted in the resignations of the Citys Mayor and Police Commissioner, the indictment of three police officers, and the firing or resignation of a dozen others in the Department. The April 3, 1977 edition of the Washington Post devoted a full two-page spread to the Whitehurst case and its aftermath. 3. Allen, et al. v. Alabama State Board of Education. In 1981, Watkins represented a group of black teachers and teacher applicants who challenged the constitutionality of the Alabamas newly instituted teacher testing program. In 1985, Watkins won an unprecedented settlement in the case when the State Board of Education agreed to halt the program due to widespread psychometric defects in all of the subject-matter tests. Teacher testing resumed in Alabama, with Watkins’ consent, in 2005. 4. The Todd Road Incident. In 1983, an out-of-state black family was mourning the death of a relative in Montgomery when City police officers mistook the Michigan and Ohio mourners license plates as a gathering of drug dealers from other states. Unbelievably, police raided the funeral gathering and violence erupted in and around the home. The officers were shot, and the mourners were subsequently arrested and brutalized while in custody. Watkins’ investigation into this matter as a Montgomery City Council member resulted in criminal charges against the mourners being reduced in some cases and dropped altogether in others. 5. SCLC v. The City of Gadsden, Alabama. Beginning in 1978, Watkins filed a series of civil rights lawsuits on behalf of the SCLC against the City of Gadsden, Alabama seeking to desegregate its fire, police and civil service departments. Gadsden’s city hall, fire and police departments were all white. All of the cases were successful, and resulted in the full integration of City Hall and the City’s fire and police departments. 6. Sidney Williams v. The City of Montgomery, Alabama. In 1975, Watkins represented black police corporal, Sidney Williams, who sought a promotion in the Montgomery Police Department to sergeant. His promotion was blocked because the Department was using racially biased promotional tests that had not been validated in accordance with EEOC Guidelines. Watkins won the case and the tests were scrapped. This victory cleared the way for a host of black officers to rise through the ranks of the department all the way up to the rank of police chief. Williams retired as a major in the department. 7. U.S. v. Richard Arrington, Jr. From 1988 to 1992, Watkins successfully represented Richard Arrington, Jr., Birmingham, Alabamas first black mayor, in his fight against federal prosecutors who sought to make Arrington a criminal defendant in an ongoing public corruption and bribery case. In 1991, prosecutors named Arrington an unindicted co-conspirator in the fraud trial of another individual. In 1992, the government cleared Arrington of all allegations of wrongdoing, and issued the first-ever public apology to a public official for smearing his name. 8. Eric Ramsey v. Auburn University. In 1991, Watkins represented Auburn University football player Eric Ramsey, who had secretly recorded tapes of Auburn coaches and boosters providing him cash and other prohibited extra benefits under NCAA intercollegiate athletics rules. The case was featured on 60 Minutes, and resulted in major sanctions against the University and the resignation and forced retirement of all coaches implicated in the scandal. Mr. Ramsey returned to Auburn in 1993 to receive his undergraduate degree. 9. U.S. v. U.W. Clemon. In 1996, federal prosecutors in Los Angeles formally notified U.S. District Judge U.W. Clemon (in Birmingham, Alabama) of their intent to indict him on various fraud related charges arising from his sister’s operation of a non-profit school in Los Angeles. Watkins represented the lead political group responsible for Judge Clemon’s appointment to the federal bench in 1980, and immediately launched an investigation into allegations of prosecutorial misconduct in the case. The investigation produced a comprehensive report to the U.S. Attorney General on the prosecutorial misconduct. Based upon this report, the Department of Justice terminated the criminal investigation of Judge Clemon with no charges filed. Judge Clemon went on to become the chief judge of the federal bench in Birmingham for many years. He served with distinction on the federal bench until his retirement in 2009. In August of 2013, Judge Clemon received the American Bar Association’s highest award - the 2013 John H. Pickering Award - for his outstanding legal ability and his distinguished record of service to the profession and community. Ironically, this award was presented to Judge Clemon thirty-three years after the ABA vigorously opposed his 1980 nomination by then-President Jimmy Carter for the federal judgeship. At the time, the ABA said publicly, repeatedly and loudly that Judge Clemon was unqualified for the position. This was an incredible, but fitting, end to Judge Clemon’s long and distinguished judicial career. 10. U.S. v. Richard Scrushy. In 2003, Watkins represented Richard M. Scrushy, the former CEO of HealthSouth, who was originally indicted on 85 felony counts of Sarbanes Oxley and related accounting fraud charges, and was facing 650 years in prison. Scrushy was the first CEO in the nation charged with violating Sarbanes Oxley. The case was featured on 60 Minutes. In 2005, Scrushy walked out of the federal courthouse in Birmingham a free man. Watkins defeated prosecutors on all charges in Scrushy’s case. No criminal defendant before or since has defeated 85 felony charges in a single case.
Posted on: Tue, 15 Oct 2013 20:12:32 +0000
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