[ by Melanie Gretchen ] Allen Stanford's decision to testify at his investor fraud trial has ruffled some feathers, and it's not those of his 21,000 victims.  Three white-collar criminal defense lawyers uninvolved in the Stanford case said his testimony may focus juror attention on his credibility without helping him win acquittal. Defense Testimony. During opening statements, Stanford's defense team told jurors on 1/24/12 that they would hear from Stanford, accused by prosecutors of leading a $7 billion fraud scheme.  Nevertheless, industry onlookers have their misgivings. “It makes almost everything that came before irrelevant,” said defense lawyer Barry Pollack.  “Either the jury identifies with and believes him and discards the evidence that came before.  Or it doesn’t, and it takes every possible negative inference from what it's heard.” Mr. Pollack, a partner in Washington’s Miller & Chevalier LLP, represented Michael Krautz, an executive with the Internet unit of the failed Houston energy company Enron Corp.  His client testifying worked in his favor: Krautz was acquitted.  Enron Chairman Kenneth Lay and CEO Jeffrey Skilling took the stand and were convicted of fraud in 2006.  “It’s always a game changer when the defendant testifies,” he said. Accused by prosecutors of leading a $7 billion fraud scheme, Stanford, 61, faces 14 charges including mail- and wire-fraud counts that carry maximum sentences of 20 years in prison.  While prosecutors must prove guilt beyond a reasonable doubt, defendants aren’t required under the U.S. Constitution to testify or prove their innocence. The Stanford Case. Over the course of the last 5 weeks, the prosecutors' case has included evidence and testimony from investors who bought allegedly fraudulent certificates of deposit issued by Antigua-based Stanford International Bank Ltd., as well as from the executives who helped sell them.  Government officials have taken the stand.  Stanford's own right-hand man, former Stanford Group CFO James Davis pled guilty to charges, testifying he knew Stanford was committing fraud and didn’t stop it. Last week, defense attorneys launched their own case with testimony from former Stanford employees who said they saw no evidence of fraud at the company.  Among them were those who testified that Stanford was an absentee visionary who left the details of running his operation to Davis.  Stanford’s lawyers are scheduled to continue their case today. To Testify or Not to Testify. Defendants have met with varying success.  For the record:

• Frank Quattrone, a former Credit Suisse Group banker, testified at his 2003 trial, which ended in a deadlock, and again in 2004.  He was convicted of obstruction of justice at his retrial - a verdict that was thrown out on appeal and prosecutors dropped the case.
• Former Illinois Governor Rod Blagojevich didn’t testify in his first corruption trial, which ended with a hung jury on 23 of 24 counts in 2010.  He took the stand in his second trial in Chicago and was convicted on 17 of 20 retried counts last year.
• Conrad Black, former Hollinger International Inc. Chairman, didn’t testify at his 2007 fraud trial in the same federal courthouse and was found guilty of mail fraud and obstruction.  Black's lawyer, Eric Sussman, maintains that defendant testimony is a bad idea in most cases.

Changing the Game. "You kind of change the burden of proof, not legally, but practically," Mr. Sussman said.  "It becomes, ‘Does the jury believe you or doesn’t it,’ rather than proof beyond a reasonable doubt.  That’s the risk." "It’s always a game changer when the defendant testifies," Mr. Pollack said. Now a criminal defense lawyer and a partner at New York-based Kaye Scholer LLP (1192L), Mr. Sussman said criminal defendants often believe they can talk their way out of anything, he said.  "More often than not, that’s not the case." A Desperate Move. Douglas T. Burns, a former federal prosecutor who is now a criminal defense lawyer in New York, agreed with Sussman. "It’s generally a dumb move, but desperation breeds dumb moves," said Mr. Burns, who, as a federal prosecutor, was deputy chief of the U.S. Attorney’s criminal division on New York’s Long Island before leaving for private practice in 1996. Defendants can either do nothing and face possible conviction or testify and risk making matters worse, he said. A Decision for the Defendant. Ultimately, Mr. Pollack, Mr. Sussman, and Mr. Burns said the decision to testify is a choice only a defendant can make after consultation with his lawyer. On the table is whether the defendant can credibly present himself as honest and truthful and cope with the rigors of cross-examination, as well as whether testifying will enable prosecutors to introduce evidence that may not otherwise be admissible. For Stanford to succeed, Mr. Pollack said, he must "be thoroughly prepared, to the point where he can relive the events at issue in the trial so he’s able to answer all the questions." The Reliability of Defense Testimony. Most people don’t have good recall of events 3 or 4 years ago, especially e-mails or texts or phone calls, Mr. Pollack said.  He said recall is challenging under the best of circumstances, and it’s more difficult when the defendant was jailed and, in Stanford’s case, beaten by another inmate. Stanford sustained head injuries in that 2009 assault, after which he developed an addiction to prescription anti-anxiety drugs and spent almost 9 months at a federal prison hospital in Butner, North Carolina. Transparency. "Juries are very good at detecting when somebody’s putting on an act," Mr. Pollack said.  "If he appears to be a very different person than what was reflected in his e-mails and phone conversations, the jury’s going to see right through that.  You want to be yourself, warts and all.  Juries appreciate that you’re baring your soul." Mr. Burns said defendants may benefit from taking the stand "if they can somewhat rationally explain their thought process and convince a jury.” Still, "history teaches us that the examples where the guy gets up there and saves the day are in the statistical minority," he said. Robert Scardino, an attorney for the defense, didn’t tell jurors when the defense team would summon its client to the witness stand, or whether Stanford still has a mind toward testifying.  U.S. District Judge David Hittner, who is presiding over the trial, has barred lawyers from talking to the press.  We shall see. The case: U.S. v. Stanford, 09-cr-00342, U.S. District Court, Southern District of Texas (Houston). [Bloomberg, 2/21/12]