Ex-Trump campaign chief Paul Manafort’s lawyers made a tactical decision on Tuesday to not call any witnesses in their client’s defense. That may have surprised many people who are following the trial, but it is a strategy that happens “all the time” in criminal cases, according to defense attorneys.
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“It’s not at all unusual,” said Christopher Brennan, a former prosecutor in New York who now is a defense lawyer. He said the defense can sometimes accomplish more by cross-examining prosecution witnesses and poking holes in their testimony. Especially if the key witness lacks credibility.
“If I thought I had scored major points against the key prosecution witness and [prosecutors] had a strong documents case … I would have done exactly the same thing,” Brennan said.
Manafort’s lawyers might be justified for thinking just that Tuesday in U.S. District Court in Alexandria, Virginia, when they made it clear that neither Manafort nor anyone else would take the witness stand in his defense at his trial for alleged tax crimes and bank fraud.
Asked outside court what he would say to people who believe that decision makes Manafort look guilty, Manafort’s lawyer Kevin Downing replied, “This is the United States of America. You’re presumed innocent until proven guilty. We believe the government cannot meet that burden.”
Days earlier, the defense team had subjected the prosecution’s star witness, Rick Gates, to a withering cross-examination that hammered away at his embezzlement from Manafort’s company, his extramarital affairs and his lying to authorities about his misconduct.
Gates, who earlier pleaded guilty to charges of conspiracy and making false statements, testified as part of a plea deal with special counsel Robert Mueller’s office, in which he hopes to win leniency at sentencing.
“If your defense is that the government’s case is based on a liar like Gates, which they beat him over the head with eight ways to Sunday … why does your client need to take the stand and say the same thing?” Brennan said.
Gerald Lefcourt, another defense lawyer in New York, said, “The obvious strategy is to blame Gates for everything and argue his credibility which clearly took a big hit on cross.”
“If Manafort testifies he shifts the jury’s attention from Gates’ credibility to his own credibility,” Lefcourt said. “That’s a real problem, because the person who’s got the most to gain by fabricating is the defendant.”
Brennan agreed with that, saying that Manafort risked a lot by taking the witness stand, even if he thought he would be able to sway the jury to believe his version of events.
Brennan noted that federal prosecutors have access to files about a defendant from a raft of government agencies, including the FBI, IRS and Securities and Exchange Commission, all of which can be used to undercut that defendant’s testimony during cross-examination.
As a result, he said, for most criminal defendants in federal trials “it’s a losing game” to take the witness stand “unless you have a really good story to tell.”
Manafort’s legal team, however, is leaving unrebutted by any witnesses the stack of financial documents entered into evidence by prosecutors against Manafort.
Prosecutors argue those records are damning evidence of Manafort hiding money earned overseas from consulting for a pro-Russia political party in Ukraine and then duping banks into giving him loans when that income stream ran dry.
For Manafort’s lawyers, “The risk is that you don’t have any answers to the statements that the prosecutors are going to make” in closing arguments, Brennan said.
But “the defense strategy is to ignore the documents” and “be focused on Gates” in closing arguments to jurors, Brennan said.
“I’d stand up there in front of them and say, ‘Why does Manafort even have to be here?'” Brennan said.