“I’m thinking of putting Garkov on the stand. He’s got a story he can tell to defend himself.” My father pauses and then clarifies, “On the money-laundering charges, at least.”
Most criminal defense lawyers keep their clients off the stand. The conventional wisdom is that, once the defendant testifies, the jury’s verdict is a referendum on that testimony. If they believe him, they acquit; if not, they convict. And that means that reasonable doubt—the defendant’s ace in the hole—becomes irrelevant. My father is one of the few criminal defense attorneys of the first rank who disagrees, and I stand with him on that issue. When I was prosecuting, I always knew I had a winner when the defense rested without the defendant telling his story.
“The problem is,” my father continues, “I’m worried that they’ll get into Red Square on cross.”
My father never calls it the Red Square Massacre, which is how it’s referred to in all other circles. For him it’s just Red Square. The place, not the murders.
I’ve heard my father say on many occasions that there are only three circumstances in which a defense lawyer should not put his client on the stand. The first is if the client has admitted guilt. In that case, allowing the client to testify to his innocence violates ethical rules and crosses the line into suborning perjury. The second is when the testimony to be proffered is so preposterous that no juror will buy a word of it. Neither scenario applies very often. That’s because most clients swear their innocence—even to their lawyers—and are usually adept enough liars that their stories have at least a whiff of believability.
It’s the third reason that comes up most often: the client has a criminal record. Once the jury learns that the defendant is a convicted felon, it votes to convict nine times out of ten.
It’s a quirk in the law of evidence that prior bad acts—including prior criminal convictions—are normally inadmissible at trial. The theory is, if you’ve been previously convicted of a crime, with limited exceptions, that conviction is irrelevant to your guilt or innocence in relation to the pending charges. However, if a defendant testifies, the prosecutor can tell the jury about the defendant’s prior convictions—not to show the defendant’s proclivity to commit crime, but because the law views a felony conviction as probative that the perpetrator’s testimony might be untruthful. In other words, the jury can’t assume that because the defendant committed a prior crime he’s guilty as charged, but they are allowed to make the logical deduction that because he’s a convicted felon, he might be lying when he says he’s innocent.
Like I said, it’s a quirky thing and makes no logical sense. But the bottom line is, if your client has a prior criminal conviction, you keep him off the stand.
Garkov has not been indicted for the Red Square Massacre, however. The official law-enforcement position is that he remains a person of interest and that the crime is still under investigation. Nevertheless, I’m quite certain the prosecution will argue that Garkov’s role as a terrorist is an integral part of the motive behind the money-laundering charges for which he stands accused—the reason why he had to move money surreptitiously. And if Judge Koletsky buys it, evidence about the Red Square Massacre comes in whether Garkov testifies or not.
“Why don’t you make a motion in limine?” I suggest.
A motion in limine is a pretrial request to preclude certain evidence. You ask the judge ahead of time to rule that certain evidence cannot be presented to the jury, so you know how to prepare your case.
“Already did,” my father says. “More than a month ago. Judge Koletsky hasn’t ruled on it yet. Knowing him, he may not rule until well after the trial begins. If I’m going to have Garkov testify, I want to tell the jury about it during my opening—it keeps them from coming to any conclusions when the prosecution makes its case because they know they’re going to hear the other side. But if I promise Garkov’s testimony and then Koletsky rules that Red Square is fair game, I can’t put Garkov on the stand. The jury will hold it against him that I didn’t deliver on my promise.”
Garkov is not one of my cases. By the time I joined my father’s firm three months ago, too much had happened for me to get up to speed in time for trial. I was tasked instead with minding my father’s other clients for the two months or so that he would be trying to persuade a jury to let Garkov go free.
It’s not uncommon for my father to share his legal strategies about Garkov, or use me as a sounding board. But I get the distinct impression that something different is in play. The fact that he’s now silent is the biggest tip-off. He most definitely has an agenda.
“Are you asking me what I’d do?” I finally say.
“Not exactly . . . you told me a while back you have a law-school friend who works in Judge Koletsky’s chambers, right?”
For the umpteenth time, I regret having shared that bit of information. My friend Abby Doft does not merely work in Judge Koletsky’s chambers, she’s his head law clerk. She had been a paralegal in the DA’s office back when I started there, and we kept in touch when she went to law school. She graduated two years ago, and I actually wrote one of the letters of recommendation that got her the clerkship, even though I told her at the time that my father had a particularly notorious case pending before Judge Koletsky and warned her that a Broden singing her praises might be seen as a negative.
“Right,” I say. “But I told you from the start that I’m not going to talk to Abby about the case.”
“Not about the case, Ella. About getting Koletsky off his octogenarian ass so he rules on the goddamn motion. I frankly don’t care which way he decides, just so long as he does it before opening statements.”
The oldest lie in the book. Like when you’re waiting to hear your medical test results and you tell people that the uncertainty is the worst part. Same thing here. The substance of Koletsky’s ruling matters much more than the timing.
“Why don’t you tell him that yourself, then?”
“Ella . . . Believe me, I respect your ethics. I would never ask you to do anything to compromise them. But I’m not asking for help in the case. I’m asking you to see if that motion can be pushed to the top of Koletsky’s to-do list. That’s all.”
I’ve always found it difficult to say no to my father. That’s probably the biggest difference between Charlotte and me—and in some ways, it’s made all the difference.
3.