Sunday, May 20, 2012


Final arguments in a murder- one trial. My opponent was an experienced prosecutor. Nothing flashy--more of a professorial type--but steady-as-she-goes, covering all the bases. He wouldn't lose a case, you'd have to beat him. But fair and square all the way.

I was fully prepared for my closing. I had crafted it for maximum dramatic impact. All the important defense points were carefully arranged, like a Nelson Riddle orchestration for Frank Sinatra. I had gone over it again and again before my hotel room wall audience, tweaking and polishing until my personal standard had been satisfied. And the homework paid off. I had the jury in the palm of my hand, and my last line was accompanied by me standing behind my client's chair with my hands clutching his shoulders. A pause in that position, attended by deafening silence in the courtroom, finally punctuated by a solemn and sincere "Thank you." Five seconds passed (I had been on my feet for ninety minutes), and then the judge called a brief recess. The jury and the SRO spectators filed out of the courtroom with nary a word being uttered. My adrenalin was at the max. I wasn't emotionally spent, but rather high, with the uplift that only a grand-slam closing argument can provide.

The District Attorney used a blackboard and a pointer to make his case. All very tutorial and mechanical. Almost boring when compared to my presentation. I felt very confident.

And then, something, innocuous at the time, happened. The judge glanced at the clock. which read 3:30pm, and recessed until the following morning. That evening proved to be quite restless and foreboding. Something began to gnaw at me. My euphoria at having put my counterpart away in closing argument slowly faded. The jury, by virtue of the mid-afternoon recess, had been given time to think analytically. The endurance of the spell I had woven with my dynamic presentation was being severely tested. The methodical approach of the D.A. might be gaining strength. If jury deliberations had begun immediately after final arguments, there wouldn't have been enough time for this to happen. There was nothing I could do about it, but my apprehension steadily grew.

The next day, after seven hours of deliberation, the jury found my client guilty. My magic had worn off during the overnight hiatus. That experience is forefront in my mind as I apply it to the John Edwards trial.

Abbe Lowell was brilliant in his summation. The jury must have been mightily impressed by his sincere passion and eloquence. I'm sure, if he had his druthers, he would have had the jury continue their deliberation straight through the weekend, without a two day interruption. That way, the momentum of his eloquence would have had the maximum chance of persevering and carrying the day. This is not to say that this may still prove to be the case, but from a defense point of view, it was desirable to have no break in the chain of events. Less chance of Lowell magic dissipation.

I may be making too much of this circumstance. I hope I am. It's just that attorney Lowell nailed it so perfectly when describing his client as a sinner but not a felon. I wish him luck, my intuition notwithstanding.

You can take a lawyer out of the practice of criminal defense law, but you can't take criminal defense law out of the lawyer.

It's the nature of the work.

Friday, May 18, 2012


From what I read and hear, defense counsel's closing argument of yesterday was nothing short of brilliant. Abbe Lowell covered his face in his hands as he concluded an emotional plea on behalf of John Edwards.  He acknowledged his sins, for which he will serve a life sentence of shame, but denied the commission of any crime, negating any basis for conviction and incarceration. Sin, yes. Crime, no. Some jurors were reportedly nodding in agreement as he explained, in detail, why no statute had been violated. I know where he was, as he stood before the jury, speaking from his heart, divesting himself of the pent-up feelings which build throughout the trial. It is that moment of truth which serves as the reward for being a dedicated criminal defense attorney. He was speaking from his soul, and oh, what a payoff for hard work that is.

I have taken issue with his decision to not call his client to the stand, but his basis for this decision was surely grounded on facts to which I was not privy. But, we are members of the same fraternity, us a-little-bit-screwy criminal trial lawyers, the guys who didn't get the message and who emotionally immerse themselves into the frequently unpopular task of defending people accused of crime. It's the most invigorating aspect of being an attorney, enabling the unique opportunity of experiencing its special "juice".  The highs are exquisite. The lows can be devastating. It takes its toll, this ultimate emotional experience, but that's the why of it all.

I salute Mr. Lowell for his uncomprimising devotion to his task at hand. He has made me feel proud of my chosen profession. He was obviously fully prepared and gave it his all. He can honestly say that he did the best he could and that, my friends, covers the waterfront.

I pray, for a host of reasons, that he proves my suggested trial strategy wrong.

My adrenalin flows vicariously.

Wednesday, May 16, 2012


See my posts of 4/15, 5/2 and 5/10 for the proper context of today's opinion.

The defense has rested its case without calling mistress Rielle, daughter Cate or Edwards himself. The prosecution's case was presented in three weeks. The defense took only two days. Some trial observers are concluding that this will send a message to the jury of a profound weakness in the government's case, while others point out the risk involved in subjecting Edwards to cross-examination. Not having been in the courtroom, I only know what I've read in the papers. This disclaimer notwithstanding, I opine that a fatal mistake has been made.

Although Edwards' defense is rather technical, compared to the salacious prosecutorial evidence, it nevertheless rests on plain- talk grounds: he did not knowingly violate the campaign contribution statute. This calls into play his state of mind and is he not the last word on himself?

Forget about any presumption of innocence. Sitting in the defendant's chair does away with that, quite nicely, thank you. The jury wanted to hear Edwards say, "I did some shameful things, but I didn't break the law, and here's why."

Daughter Cate would surely have been a supportive witness, humanizing things with the love for her father, which has been so impressively symbolized by her constant closeness to him throughout the trial. But it was Edwards himself whom the jury sought to evaluate as he looked them in the eye from the witness stand. The defense lawyers chose to play it safe, but at what cost? Risks are inherent in every trial but they are to be assumed The case cried out for the former senator to face the music under cross-examination.

Anything is possible. The attorneys had their reasons to which I am not privy. But, wow. Three weeks versus two days.

I am not relishing the opportunity to play the "I told you so" game for, frankly, my sentiments and sympathieys are with John Edwards, a disgraced man wearing a scarlet letter. He is not a danger to society, however. He doesn't belong in prison.

If he is to go down, I would have preferred to have him swing at three strikes.

Thursday, May 10, 2012


What the hell is going on here? Media report that even John Edwards own defense attorney has brandished him a liar. That's like being a little bit pregnant. The former senator is the best evidence when it comes to what he didn't know or intend, and the rug has been yanked from under his credibility? Let's take a step back and deduce, as best we can, the facts thus far established by the prosecution, viewing the evidence in a light most favorable to it.

The Edwards marriage had been void of romance for years prior to his meeting Rielle Hunter. Some men can adjust to this and accept life accordingly, while others can't. John Edwards fit the latter category. His wife was aware of his dalliances with others, but chose to look the other way. After all, what's temporary doesn't last. Then, Edwards met Ms. Hunter and flipped, head over heels. This relationship did not smack of fleeting. He fathered a child and, realizing that things could no longer be kept under control, panicked at the thought of exposure. He, or someone on his behalf, solicited funds from two wealthy friends for the purpose of making his mistress, and their child, as materially comfortable as possible, so as to keep the lid on things. Public knowledge would ruin him, his marriage and his political ambitions. He entrusted an aide to be the point man, but greed took over, as the aide funneled over a million dollars for his and his wife's benefit. It has not been established, with certainty, whether Edwards knew of this skulduggery. Ultimately, the mess blew up, with severe collateral damage. Mr. and Mrs. Aide turned squealers to save their own butts, wrote and published a rat's book to make more money and wrangled immunity from an over-zealous U.S. Attorney. Edwards wife, battling cancer during the Hunter affair, formally separated from him and subsequently succumbed to the disease. Her mental torment has been described to the jury in devastating detail. Edwards is charged with violating the campaign contribution statute, with the government alleging that the funds in question were hidden and/or falsely treated as gifts. The prosecution shall shortly rest its case-in-chief.

John Edwards is not the first man to commit adultery and to spawn an out-of-wedlock child. But his misconduct has been presented in excruciating detail before a world wide audience. What will his defense be? It's not safe to rely solely on the technical argument that the monies were donated and received as "gifts" because the jury, at this juncture, doesn't like him and, therefore, won't believe him. The situation calls for, as all criminal trials do, something dramatic, which will emotionally supersede the evidentiary damage already inflicted.

If I were Edwards' attorney (be still my heart), this would be my scenario: Stay with me, now.

There is something wrong with the picture thus far painted by the U.S. Attorney. There's a piece missing from the puzzle. A vital and central figure in this morality tale has not been called as a witness: Rielle Hunter, the woman in black.

Both sides have listed her as a potential witness. This automatically keeps her out of the courtroom by virtue of the sequestration rule. She presents herself as a supremely confident woman for whom Edwards would not have fallen, had his marriage been romantically stable. Were the prosecutor to call her, he would be limited by the restraining niceties of direct examination. A crucial factor is that she has been granted immunity by the government. She's feisty and, shall we say, not shy. She would be dynamite on the stand. Defense counsel should call her as a witness. She should be properly prepped for a detailed direct and a withering cross examination. The truth, coming from her, would simultaneously accomplish two things. "Jury Fury" would be redirected towards her and she would penultimately set the stage for the most bombastically climactic conclusion to this trial. John Edwards taking the stand on his behalf. Picture the drama.

In prior posts on this case, I have enunciated my thoughts on why this could be the beginning of John Edwards' salvation and redemption. He would take his punishment in public and to the extreme, nourishing the seeds of forgiveness.

Recall movie scenes of a public hanging. The onlookers have their fists upraised and are screaming for blood. But, once the lever is pulled, and the body is jerkily swaying in the wind, a hush envelopes the crowd, signifying a complete reversal of attitude.

Call it regret or sympathy or pity or whatever.

It's what John Edwards needs.


Thursday, May 3, 2012


Yesterday, the judge allowed a former advisor to John Edwards to recount how the former senator's now-deceased-wife confronted her husband, baring her chest in front of staff members, the day after a tabloid reported that he was cheating on her. A woman, who had endured treatments for breast cancer, took off her shirt and bra and said, "You don't see me anymore."

Ugly stuf, emphasizing what a scurrilous cad Edwards was (is). But, how is this relevant to the ultimate issue of whether he knowingly misused campaign funds? In ruling on the admissibility of evidence, the judge must balance probative value against undue prejudice. With all the salacious details already testified to by former aid Andrew Young and his wife, isn't this overkill to the reversible extreme?

Edwards acted like a pig. Plain and simple, and he has yet to fess up. To be sure, Young and his wife stand exposed to characterizations of greedy, self-serving sycophants, but the jury must, nevertheless, be looking at Edwards with disgust. If his defense is to be based upon the very valid but technical  ground that the monies in question were gifts rather than contributions, of which their solicitation and handling he had no knowledge, at least parts of the flung filth will stick to the walls of the jury room. What, then, should he do?

He should subject himself to the unforgiving ordeal of cross-examination under oath. He'll be lashed to the mast and whipped to an inch of his life. Let him admit his misconduct and set forth the "why" of it all. Not to justify but rather to unburden the unbearable weight of living with a constant lie. Tell what you did and what you knew; what you didn't do and what you didn't know.

Does he have it in him to do this? Can he legitimize the desire of his conscience to survive? Bill Clinton managed to resurrect his life because of one factor. Hillary never chose to divorce him and, thusly, stood by him.

Edwards has only himself to blame and, now, to effectuate his redemption.

He must, in a sense, stand by himself.

Wednesday, May 2, 2012


Things are not going well for the ex- senator. His former aide, Andrew Young, has testified as predicted. He, at Edward's urging, received monies which he used to cover up an affair with a woman who gave birth to Edward's child. He even falsely claimed paternity and siphoned off over a million bucks for himself and his wife, Cheri. He put out this lie at Edward's urging, a convincing pitch that the country's welfare would be ill-served were his presidential campaign to be derailed. He has received full immunity from his admitted wrongdoings and has hugely profited from a tell-all just published book. He is the classic rat-fink and the ultimate stereotype of the squealer. Foreseeably, he was savaged by withering defense counsel cross-examination and I doubt that his testimony, alone, can be the basis of conviction. It does not have to be. Reinforcement followed him to the stand in the person of his wife, who might very well be the most sympathetic player in this entire sordid mess. Media accounts, unreliable to be sure, are, nonetheless, all I have to go on, but Cheri Young seems to have hit it out of the park, adorned with the mantle of the ultimate victim. Her tears were legit, as was her narrative, as she highlighted the alleged sins of the man with presidential ambitions. Her obvious pain bolstered her believability which seemed to carom from the witness stand to the jury box.

On direct examination, having related that Edwards referred to the coverup scheme "as if it was for the good of the country", she was asked why she went along with it.

When a witness is asked a "why" question on direct, the answer must have certainly been carefully prepared. No room for error can be tolerated.

Young put her hands together, pressed them to her her chin, and bowed her head as if in prayer. The judge dismissed the jury to give her time to compose herself. About 25 feet away, Edwards sat back in his chair and put two fingers to his pursed lips. As Young dabbed her tears with a tissue, he glanced at his watch.

If the Associated Press reporter (Michael Biesecker) saw it, so did the jury.

Was he timing her "act" or merely displaying impatience with her story? Either theory is inconsistent with a sympathetic defendant. Not a cool move for an experienced trial lawyer.

Once the jury returned, Young answered the question. "I felt like everything had been dumped in my lap.....everybody was on board but me.....I ultimately decided to live with a lie."

On cross-examination, it was asserted that she had an incentive to lie about Edwards. She did not hesitate in her response. "It was a lie when we accepted paternity for your client and that is why we are here today." Bang!

After acknowledging that she and her husband kept money for themselves and made even more from Andrew Young's book about Edward's affair, she reiterated that it was the ex-senator's lies that prompted them to go public. Edwards had allegedly promised to admit the baby was his after his mistress gave birth, but instead went on national television to deny being involved with another woman. Her testimony smacked of truth.

Edward's dilemma is that he is basing his defense on a point of law: his handling of monies received did not technically violate the federal statute governing the receipt of funds during a campaign, and that the dollars in question were gifts rather than contributions, and therefore legal. This may very well be true and would constitute a valid defense. The problem: if the jury doesn't like him, can they set this aside and resolve the case on a legal question?

Juries. The quintessence of unpredictability. Emotions versus stoic reasoning.

Edwards should consider taking the stand in his own defense and bare his soul under a public flogging. To self-administer such merciless punishment could serve as the basis of redemption and fertilize the ground for some degree of forgiveness. This once earned, the atmosphere for considering the case on legal grounds might be significantly enhanced.

Being a scoundrel while not violating a statute is not an inconsistent proposition.

It is, however, a tough sell.

Edwards must bleed in public view.