A Brilliant Move

Thursday, June 21, 2012

Page 6

IN MY OPINION (Column)

A Brilliant Move

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Every trial lawyer who has ever tried a criminal case is faced with the quandary:

Do I put the defendant on the stand or let the 5th Amendment run its course with all its baggage? Obvious or not so obvious?

John Edwards, erstwhile U.S. Senator and candidate for Vice-President on a national ticket and Presidential, hopeful was charged with violating federal campaign finance laws. The jury acquitted him on one count and hopelessly (after nine days of deliberations) was unable to reach a unanimous guilty or not guilty verdict. It was not enough to rescue Edwards from the House of Shame which he so clearly occupied.

It is not hard to imagine that a conference (chastisement) took place in the office of the United States Attorney when he confronted his chosen trial attorneys to explain. What went wrong? Easy. This was a brilliant move by a very competent defense counsel. Not to allow defendant Edwards to testify was a gamble, but a gamble that paid off. Thousands of criminal defense attorneys have faced similar dilemmas, but the decision making process and its risks have seldom been discussed.

It is not difficult to imagine that defendant Edwards, a former famed trial lawyer himself, probably participated in the strategy making of his counsel. The ultimate decision, however, was that of his counsel. He gambled and he won. The prosecution will now in all likelihood throw in the towel. It is unlikely that there will be a retrial. Enough, they will say, is enough.

The dilemma trial counsel found himself in is repeated thousands of times daily in the criminal courts of the United States. An attorney’s decision to silence a client is a difficult task, not taught in a law school. It is even more difficult when the client has an ego as big as a cannon ball.

There is, of course, an automatic instruction that the jury may not at all consider a defendant’s invocation of the privilege to remain silent. There are fewer admonitions in life so frequently repeated and so universally ignored. It is just against human nature not to consider a defendant’s self-imposed silence.

It is not just difficult, it is impossible to find a more sanctimonious defendant than Edwards. At a hastily prepared press conference on the steps of the courthouse, he proclaimed that God is not through with him; that there are still some good things he can do; and that he loves all his children, including his daughter by Rielle Hunter. It is difficult to find any purpose in these comments other than the activation of a new campaign for political office. One would expect that the scandal, the filing of the criminal case, the long trial and the nine days of deliberation would have silenced this hypocritically pious person away from launching a new political campaign.

The criminal charges of violating election campaign laws were not the most serious charges ever brought against a criminal defendant.

The misconduct of Edwards in having and concealing his affair from a cancer-stricken wife was horrendous. His gift of charm, his good looks and his speaking ability all weighed heavily in his attorneys’ decision to invoke the silence afforded by the 5th Amendment. The strategic move by Edwards’ trial counsel was equaled to Johnnie Cochran’s decision to silence O.J. Simpson in his defense a few decades previously. The greatness of a trial lawyer can, and here was, established not by his actions or inactions in court, but by his instincts. Good lawyering indeed.