Will Ebbers Testify?

by TChris

The New York Times wonders whether Bernard Ebbers should testify.

There is no hard rule for lawyers in these cases. Martha Stewart, the entrepreneur, did not take the stand and was convicted. Frank P. Quattrone, the former Credit Suisse First Boston banker, did testify in his defense and was convicted, too. John Walker, an executive at Qwest Communications, took the stand last year and was acquitted.

The case against Ebbers rests largely upon the testimony of Scott Sullivan, WorldCom's former CFO. Sullivan is cooperating with the government's prosecution of Ebbers with the hope of avoiding a lengthy sentence of his own. Witnesses who point a finger at others to benefit themselves are notoriously unreliable, but juries often believe self-interested testimony. When the case comes down to "he said-he said," the jury will want to hear from the other "he."

There are risks in calling a defendant to the stand, particularly when the jury might perceive the defendant as arrogant or unlikeable, or when cross-examination is likely to poke holes in the defendant's testimony. But this is an overstatement:

"Any good defense attorney will do his best to have his client not testify," said Jason Brown, a former federal prosecutor who is now a securities lawyer in the New York office of Holland & Knight. "The defense would rather concentrate on weaknesses in the government's case."

In fact, any good defense lawyer will prepare the defendant to testify, will continue to assess the case throughout the trial, and will make a final decision when the time comes. If an acquittal seems likely without the defendant's testimony, there's no need to risk a poor performance on the witness stand. But if the jury's view of the evidence is unclear to the defense (as it often is), the defense may decide to give the jury what it wants: a chance to hear the defendant speak for himself.

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    Re: Will Ebbers Testify? (none / 0) (#1)
    by kdog on Mon Feb 28, 2005 at 09:23:56 AM EST
    I'm curious as to how he can justify his fraud. Let's hear it Bernie, was it for the kids?