LRS: One of Stanford's former lawyers previously told NetNet that testifying in his own defense was probably Stanford's only chance. But he didn't take the stand. You think he might be acquitted?
Roth: The reason why testifying is a horrific idea is it's a game changer. For the jury the question goes from, is there reasonable doubt? to, do I believe the defendant? Look at former Illinois Governor Rod Blagojevich. At his first trial he didn't testify, and he got a hung jury. At the second trial he testified, and was convicted.
On the stand he gets cross-examined. So it's not, did the prosecution prove the case? It's, do I believe him?
Imagine what they have. They show Stanford emails, documents. And they ask, you were the CEO and you didn't know what was going on?
Often the question can be more telling than the answer, even though the evidence is only what comes out of the defendant's mouth.
Generally speaking, the traditional wisdom is, you never want the defendant to take the stand.
LRS: Defense lawyers told the jury Stanford would testify. Does their failure to deliver create a problem for their client?
Roth: It looks bad. But there's a way to make up for that. What Robert Scardino will say is, I told you he would testify, but having heard the prosecution's case, we concluded there was no need. He'll say, the prosecution fell so short, I didn't even have to put him on the stand. Telling the jury the case was weak is his only option.
It's sort of a cop-out. But he has to do it.
LRS: What are his chances of getting acquitted?
Roth: It's a tougher call than some cases.
Scardino will say, the prosecution case was so weak, and my defense witnesses were so strong, you must acquit. And he does have the semblance of a pretty strong defense.
Some of the strong defense points include:
- the company was restructuring and consolidating operations and the problems would not have existed, had the government not gone in and shut them down
- the forensic accountant expert said he saw no evidence that Stanford transferred money from CDs to a Swiss bank account
- there's testimony that Stanford was an absentee visionary. If he's not really involved in the mail fraud, the wire fraud, etc., then there's a shot he didn't have the requisite knowledge and intent.
The big question is, will the jury believe former CFO James Davis, his long-time partner. If they do, Stanford is sunk. But Scardino will stand up and say, who's Mr. Davis? He struck a deal with the government. Don't you think he's going to exaggerate things?
Scardino won't call Davis a liar, but if he can create enough of a question about his testimony, he may have reasonable doubt.
LRS: Does not putting him on the stand help preserve an appeal?
Roth: It does. The appellate court doesn't look at credibility questions.
If Stanford takes the stand and they convict him, it could very well be a credibility issue. And the Appellate Court won't look at that.
They only look at legal issues.
Correction: An earlier version of this story erroneously stated that Stanford had been arrested in 2008.
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