In CEOs' Trials, Defense Must Weigh Risks of Going Negative

Former WorldCom Inc. finance chief Scott D. Sullivan is the prosecution's star witness against his onetime friend Bernard J. Ebbers, top. (File Photo)

Burton said that in a recent tax evasion case he did a background check on an elderly government witness, learning she had a shoplifting conviction in her past.

He ultimately decided not to use the information because of her sympathetic demeanor.

William H. Jeffress Jr., a longtime Washington lawyer, said the negative strategy works only if the jury is predetermined to dislike the subject of the attack.

"If the witness appears to be an enthusiastic member of the prosecution team, or minimizes his own culpability, or fights the cross-examiner, the aggressive attack works great," he said. "If the witness comes across as reluctant to testify against the defendant, freely admits his own guilt and conveys a sense of remorse, the attack won't work."

Last winter's trial of Martha Stewart and her former broker Peter E. Bacanovic offers a cautionary tale for defense lawyers considering whether to dig up dirt.

The chief government witness was Bacanovic's former assistant Douglas Faneuil, and Bacanovic's lawyer David Apfel came out swinging hard, alleging Faneuil was "obsessed with Stewart" because she had previously been rude to him and that he was lying to save his own skin. But the strategy largely backfired, most courtroom observers agreed.

Faneuil, then 28, looked young and vulnerable and stuck gamely to his story, and the e-mails about his past run-ins with Stewart made her look rude and self-absorbed. By the time Stewart's lawyer, Robert G. Morvillo, tried to cast doubt on Faneuil's claim that he recalled conversations nearly verbatim and asked about his prior drug use, the jury appeared to be firmly on the witness's side.

"Cross-examination of a key witness always deals with the determination as to how far you can go to undermine his credibility," Morvillo said recently.

"You prioritize what kind of evidence you have."

In the WorldCom case, the stakes appear to be enormous -- underscoring just how carefully a defense lawyer must tread with witness Sullivan.

"If the jury believes him, Ebbers is going to get convicted," Morvillo said. "If the jury doesn't believe him, Ebbers gets acquitted."