Paul Manafort, the former campaign manager for Donald Trump. Photo / Bloomberg Washington Post
From about April to October 2009, I sat on the jury considering the fate of a man named Anthony Marshall, a former US ambassador charged with taking advantage of his mother's dementia to change her will to his benefit.
Marshall's mother was Brooke Astor, a noted New York City socialite and the heir to a fortune first built by a wealthy businessman named John Jacob Astor. Heard of the Waldorf Astoria? That "Astor" is from the Astor family.
For months, the prosecution called witness after witness, intent on proving that Astor's mental decline meant that she was unable to understand the changes being made to her will.
The prosecution trotted out bold-name witnesses who testified about incidents in which Astor's judgment was suspect: Henry Kissinger, Annette de la Renta (wife of designer Oscar), author Louis Auchincloss.
Week after week, testimony from people about Astor, her mental state and the timeline on the days in which Marshall and his lawyer and co-defendant, Patrick Morrissey, allegedly cajoled Astor into changing her will and adding amendments to it.
At last, the prosecution rested. Marshall's lawyer, Fred Hafetz, stood to begin taking his turn presenting evidence. Only he declined to do so. With a knowing glance at the jury, Hafetz announced that the defence would call no witnesses.
Today, lawyers for former Trump campaign chairman Paul Manafort made the same announcement.
After days of testimony from prosecution witnesses, the defence team would not be calling any witnesses of its own.
The reaction from the public (at least as expressed on social media) was one of confusion. Why? Was this a sign that Manafort and his lawyers knew that a pardon was coming from US President Donald Trump?
Probably not.
While a pardon could certainly come at some point down the line, the reasoning for not calling witnesses was probably less exotic.
Cases in which the defence doesn't call witnesses are "a minority," explained law professor Robert Weisberg, co-director of the Stanford University Criminal Justice Centre, "but not a tiny minority."
When Hafetz made his announcement in 2009, the primary emotion those of us on the jury felt was relief, as though the pilot had suddenly announced final approach after a particularly bumpy flight.
Manafort's lawyer says government did not meet burden of proof https://t.co/6bGYAD5dK2
— Reuters Politics (@ReutersPolitics) August 14, 2018
But Hafetz's point was obvious: No further defence was needed because the prosecution had not made its case. That was the point behind his knowing glance: The prosecution had to prove Marshall guilty beyond a reasonable doubt, and it had failed, so obviously that he didn't need to say anything else.
Remember: For every witness presented by the prosecution - every Kissinger and de la Renta - Hafetz's team (and Morrissey's lawyers) got to cross-examine them, to poke holes in everything that was said.
After Manafort's long-time business partner Rick Gates testified, it's not as though the defence needed to wait until now to poke holes in what he said. It did that as soon as the prosecution's first round of questions was over. The case the defence needs to make is that the prosecution's case isn't proved, and Manafort's lawyers can do that as the prosecution is making its case.
There's some showmanship to it, too, of course. The jury is meant, certainly, to be impressed with the confidence displayed by the defence team: It is so confident that its case has been made!
But there are practical considerations, too.
Earlier today, Paul Manafort spoke at his criminal trial for the first time, telling the judge that he did not want to testify before the jury in his own defense. (Sketch by Bill Hennessy) pic.twitter.com/RZDTi9jOb1
— Marshall Cohen (@MarshallCohen) August 14, 2018
"Who would the other witnesses be?" Weisberg asked rhetorically. "In very broad terms, you can imagine three kinds of defence witnesses in a criminal case. One would be witnesses who offer testimony that the criminal acts never occurred. Two, witnesses who would testify as to the good character of the defendant. Third, witnesses who say the criminal acts occurred but someone else did them."
In this case, the first type of witness is unlikely because the paper trail for the alleged crimes is so robust, Weisberg noted. In the second case, he pointed out that it's probably a lost cause to convince jurors of Manafort's moral rectitude.
As for the third case, there's some sense that Gates's testimony didn't go very well for the prosecution. Gates had already admitted to making false statements to law enforcement officials, and the defence argued that his testimony against Manafort was meant only to save his own skin. With that having been presented as an argument, why call another witness?
Bear in mind, too, that defence witnesses also get the real-time response of cross-examination. There's a risk to putting any witness on the stand, even beyond the defendant himself.
If Manafort's team put someone up on the stand to testify to some inaccuracy in the prosecution's case, there's no guarantee that they wouldn't somehow slip up or crumble under cross-examination in a way that makes Manafort look worse, not better.
Smart strategy by #Manafort #Defense lawyers. Why expose or reveal your side. Save it for #Appeal process if needed. In the meantime, count on holes in #Prosecution theory and confused #Jurors. #CNN #MSNBC #FoxNews #DonaldTrump #ManafortTrial # https://t.co/YesnE2VoK4 via @ABC
— Prof. Chandra Mittal, M.S., Ph.D., FCP (@DrChandraMittal) August 14, 2018
Trials are ostensibly about evidence and the nuances of the law, but they are also specifically about how trustworthy the jury believes witnesses to be. It can be about psychology as much as rationality, and the psychological effects of seeing a witness stammer or waver can be significant.
A piece of evidence is not simply entered into evidence. It is entered into evidence by someone, and that witness can be asked questions about it that undercut the value of even an apparently straightforward document.
In other words, not calling any witnesses is a calculated risk that is not uncommon. Might it have paid off to call witnesses to further rebut the prosecution's case? Sure, it might have. It might also have made things worse. It depends on the available witnesses, to some extent, but mostly on the judgment of the lawyers working for the defense.
Sometimes that bet doesn't pay off. It probably didn't for Hafetz and Marshall. We found Marshall guilty on a number of charges, and he spent several weeks in prison.
These Kushner-Manafort emails show extraordinary access and influence Manafort had with Trump transition team MONTHS after he was fired and MONTHS after it was publicly known he was under FBI investigation.
— Ryan Goodman (@rgoodlaw) August 14, 2018
Remember this—next time POTUS says he wasn’t warned of Manafort by FBI. pic.twitter.com/6xvktb6gD3
New York Times: He's using the government more openly against perceived enemies now.