Could it be that the massive size of the fraud alone was enough to persuade jurors they couldn't give Ebbers a pass? Or, did Ebbers' own testimony do him in. I think it's the latter. Instead of keeping the jurors focused on Sullivan's credibility, Ebbers, by testifying, put his own credibility at issue. If the jury didn't find him convincing, it's a short step to saying he lied. If he lied about not knowing about the fraud, then he was guilty.
The New York Times reports:
Mr. Ebbers's testimony that he did not know about the fraud, according to one juror, was unconvincing. "A lot of his own testimony pretty much did it," said the juror, who insisted on anonymity.
Deciding whether to take the stand is a decision that ultimately belongs to the client, not the lawyer. A lawyer makes a recommendation to the client at the end of the Government's case, answering the questions, do we need to put on a case at all, and can the defendant bring the case home if he testifies?
Often clients, particularly ones who have been successful in their lives, believe that the jury needs to hear them tell their side of the story. But the jails are filled with people that thought if they could only tell their side of the story, the case would just go away.
Scott Sullivan was impeachable and he admitted cooking up the fraud scheme, using cocaine and marijuana and that he was singing for his supper, hoping for a lenient sentence. If Ebbers hadn't testified, and the defense just hammered on Sullivan's lack of credibility in closing and on the lack of corroborating witnesses, maybe the verdict would have been different.
But, looking at it from Ebbers standpoint, had he not testified and been convicted, he would be kicking himself for the next 20 years or more for not taking the stand, wondering if his testimony would have changed the outcome.
I think it is a rare case where the defendant should take the stand. Unless the client was in Ohio when the crime occurred (making alibi your defense,) it's a road filled with potholes and a very big risk. The burden of proof is on the Government. Why make its job easier? Trials are not really a search for the truth, they are only a testing of the evidence.
Ebbers' defense team had the money for mock juries, shadow juries, skilled lawyers and trial consultants to gauge the acceptability of the "How was I to know" defense, to take him through grueling mock-cross examinations and to predict the effect of Ebbers' testimony on the jury. I assume they did all that. And that Scott Sullivan's defense team, led by the excellent Roy Black, did the same to prep Sullivan for his testimony.
The standard of proof of beyond a reasonable doubt is not met where the jury weighs two versions of events, finds both somewhat credible and then decides which is more believable. That's enough for a civil case, not a criminal case.
Had Ebbers not testified, and the jurors been faced only with Sullivan's testimony to implicate him, the verdict might have been different. And then again, maybe not. Maybe it was just the size of the fraud, and the jurors own inability, using their common sense, to conceive that someone as high-up in the company as Ebbers wouldn't know about it. Which just goes to show, Monday morning quarterbacking of trials really is just a spectator sport.
