Purva Pate, Houston Chronicle Copyright 2012 Houston Chronicle. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
By Purva Patel
Monday, February 6, 2012
As the fraud trial of R. Allen Stanford progresses in Houston federal court, defense attorneys will have to make a critical decision: whether to put their client on the stand.
His lawyers told the jury as the trial began that he plans to testify, but that's not a commitment.
"It's always a calculated risk," said Philip Hilder, a Houston defense lawyer and former federal prosecutor who is not involved in the Stanford case.
Lawyers in the case are prohibited by a gag order from commenting beyond what they say in open court.
On the one hand, Hilder and other trial experts said, defendants who take the stand to declare their innocence usually carry more weight with jury members. On the other hand, jurors who don't find a defendant credible may lean more toward a guilty verdict.
Under the Constitution's Fifth Amendment protection against self-incrimination, criminal defendants don't have to testify - or for that matter present any defense - since the prosecution has the burden of proof beyond a reasonable doubt.
So defense attorneys may wait to see how effectively the government meets that burden before deciding whether to put a defendant on the stand, Hilder said.
Lawyers and other trial participants are forbidden from suggesting during trial that a defendant should testify.
In fact, during testimony in the Stanford case Friday, his lawyers asked for a mistrial after a witness said, in response to a prosecutor's question, that Stanford would have to clear it up.
U.S. District Judge David Hittner denied the mistrial motion, but instructed the jury to disregard the remark.
In Stanford's case, the decision on whether he should testify has an extra
complication: The defense attempted to have his trial delayed on grounds that head injuries he suffered in a jailhouse fight rendered him incompetent to help in his defense.
Putting him on the stand would suggest he is competent, making it more difficult for the defense to appeal a verdict on the argument that Hittner denied trial delays.
Andrew Stoltman, a Chicago-based securities lawyer, speculated that the defense may be bluffing about possibly calling Stanford to the stand to create a sense of confidence about their case.
"It would be legal suicide to call him," Stoltman said.
Having Stanford testify could allow the prosecution a field day during cross-examinations, taking Stanford through incriminating documents and asking for explanations that may be hard to spin, Stoltman said.
And jurors may be skeptical if Stanford says he can't remember details, said Julie Blackman, a social psychologist and jury consultant in New York.
"If he takes the stand and the judge tells the jury he's competent to stand trial, and he's rambling or incoherent, it's unlikely that's going to be good for him," Blackman said, because the jury may suspect he's faking.
"It's a very difficult decision."
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