The following is an excerpt from “Anatomy of a Trial,” a new book by Paul Mark Sandler forthcoming from The Maryland Institute for Continuing Professional Education of Lawyers. To access transcripts of the opening statements discussed in later chapters of the book, click here.
In 2004, a University of Wisconsin law professor named Marc Galanter published a revealing report entitled “The Vanishing Trial.” It documented what so many of litigators have witnessed year after year, decade after decade: a drastic decline in cases going to trial.
To give you a sense of how extreme this trend has become, consider these statistics from Galanter’s paper: In 1962, 11.5 percent of all civil dispositions filed in U.S. district courts went to trial. By 2002 that figure had dropped to 1.8 percent. The decline has been steady and steep, and as a result, a whole generation of litigators is moving up in the profession with little or no practical experience trying cases in a courtroom.
The causes of this phenomenon are for another book. This volume, however, has been designed for young trial lawyers eager to gain an appreciation of how to handle real problems encountered during jury trials. Theories about the various aspects of trial advocacy abound and can be read about in numerous books. But as any experienced litigator knows, theory is often complicated and sometimes compromised, by the realities of an actual trial.
For illustrative purposes, then, this book considers the key phases of jury trials (voir dire, opening statements, direct and cross examination, and closing arguments) in the light of a particular case: United States of America v. David Rosen. I choose this case in part because of the provocative subjects it dealt with — campaign finance, national politics, Hollywood fundraising, among others — but primarily because the trial was rigorous and challenging.
This criminal case was resolved in a jury trial presided over by Judge J. Harold Matz in the U.S. District Court for the Central District of California in May 2005. The government had indicted Mr. Rosen for allegedly causing a false report to be filed with the Federal Election Commission on behalf of a joint fund-raising committee that included the national Democratic Senate committee and the campaign committee for Hillary Rodham Clinton’s 2000 campaign for U.S. Senate. Mr. Rosen, the Senate campaign’s national finance director, pled not guilty, and the jury acquitted him. I served as trial counsel for the defendant with the able assistance of Joseph E. Sandler of Sandler, Reiff & Young of Washington, D.C., and Michael Doyen of Munger, Tolles & Olsen in Los Angeles.
The case arose out of a lavish fund-raising event for the joint fund-raising committee. The event was held in Los Angeles during the Democratic National Convention in August 2000. “A Tribute to William Jefferson Clinton” involved a dinner and concert that included performances by Cher and Diana Ross, among others, and a parade of celebrities. The costs of the event were paid in part directly by the joint fund-raising committee, but most of the costs were underwritten by a start-up Internet company, Stan Lee Media, that had been set up to distribute online versions of the works of Stan Lee, the famous creator of the “Spiderman” comic book character. The company had been founded and was being run by Peter Paul who, unbeknownst to the Clinton campaign, was a ne’er-do-well who had been convicted years earlier on drug charges. The event was put together by a Hollywood promoter, Aaron Tonken, who had made a name for himself in Hollywood by attracting celebrities to charitable fund-raising events and had recently become involved in political fund raising. The defendant, Mr. Rosen, was the campaign staff person assigned to go to Los Angeles to coordinate and oversee the event on behalf of the joint fund-raising committee. The entire event was put together in a matter of a few weeks.
The violation of law alleged by the government was based on highly complex and arcane rules established by the Federal Election Commission. Under those rules, the joint committee could legally allow the company, Stan Lee Media, to pay for an unlimited amount of the costs of the event, but whatever amount was paid had to be reported by the joint committee on its public disclosure reports to the FEC, as an in-kind contribution; those reports were made public by the FEC. Such an in-kind contribution also had to be accounted for by the joint committee in a complicated way that involved transferring funds from the account from which the Clinton campaign would obtain its share of the proceeds from the joint event.
After the event, the joint committee reported about $600,000 in costs for the fund-raising dinner and concert — about $350,000 paid by Stan Lee Media, constituting an in-kind contribution to the joint committee, and another $250,000 paid by the joint committee. In the meantime, the campaign discovered Mr. Paul’s nefarious past. In the ensuing months, Mr. Paul was indicted for securities fraud in connection with his founding and operation of Stan Lee Media; he fled to Brazil, where he remained a fugitive for more than two years. Mr. Tonken, meanwhile, was charged by federal and state authorities with fraudulently pocketing the proceeds of charitable events and using proceeds from one event to cover the costs of another.
While he was a fugitive, Mr. Paul filed a civil lawsuit in California alleging that the true costs of the event, paid by him and the Stan Lee Company, were close to $2 million and that the joint committee and Clinton campaign had concealed those costs in their reports to the FEC. In the lawsuit he claimed that he had a secret deal with President Clinton, to come work for Stan Lee Media. Paul also claimed publicly that he had evidence that could incriminate Senator Clinton herself in connection with the event. By 2003, Mr. Paul had been extradited and was in jail in the United States, talking to the U.S. Department of Justice.
Mr. Rosen was indicted at the end of 2003 on four counts of aiding and abetting the making of false statements to the U.S. government, in violation of 18 U.S.C. §1001. The government’s theory was that Mr. Rosen knew that the costs had been underreported and deliberately caused the compliance officer for the joint committee to file the understated, incorrect costs with the FEC. The indictment was placed under seal for more than a year for reasons that remain in dispute — it seems likely that the government wanted to wait out the 2004 elections, but the government claimed that unsealing it earlier would have forced them to reveal evidence in an ongoing, unrelated investigation involving one of their witnesses. The indictment was unsealed in January 2005 and the trial took place in May 2005.
The trial was a colorful one, in large part because of the celebrities involved and the attention they attracted. Neither side called Mr. Paul or Mr. Tonken, and the admissibility of their criminal backgrounds was a hotly contested issue throughout the trial. Harold Ickes, a former deputy chief of staff in the Clinton White House, testified on behalf of Mr. Rosen, as did Stan Lee. Other Hollywood denizens, such as Gary Smith, a producer of the Emmy awards, testified, and David Rosen took the witness stand in his own defense.
The government’s witnesses included Ray Reggie, from New Orleans, the brother-in-law of Sen. Edward M. Kennedy, D-Mass. Reggie had been charged with serious bank fraud in an unrelated case and, as part of his “cooperation” with the government required by his own plea agreement, Reggie secretly “wore a wire” during a dinner meeting with Mr. Rosen. Although Mr. Rosen said nothing at all helpful to the government even while he was being secretly taped, Mr. Reggie testified that on another, separate occasion Mr. Rosen had admitted to him that he intentionally underreported the costs of the gala. Difficult and interesting evidentiary issues were raised by the question of whether and how the existence and substance of the taped conversation could be revealed to the jury.
James Levin, a friend of Mr. Rosen from Chicago, who had also been involved in fund raising for the Clinton campaigns and Democratic Party, also testified. He, too, had pled guilty to serious federal felony charges, of defrauding the government in contracting matters, among other things, and was “cooperating” as part of his plea agreement. He too claimed Mr. Rosen had admitted underreporting the costs.
Another key witness for the prosecution was a Beverly Hills event planner named Bretta Nock, who had been employed by Mr. Tonken to help put together the event. She was the actual author of the spreadsheets from which the reported cost figures had been derived, but she nevertheless claimed that Mr. Rosen had told her to put down under-stated figures on her spreadsheets.
Much of the testimony elicited by the prosecution from these and other witnesses concerned the nitty-gritty, backroom details of the gala — the planning that went into it and the costs it incurred.
Mr. Rosen, 33 years old at the time of the event, explained at trial that Peter Paul, Aaron Tonken, and Bretta Knock, who were the ones that knew the true costs because they had actually incurred those costs, were also the ones who had provided the cost information to him. The defense argued that Mr. Rosen himself did not know the true costs and that Paul and Tonken purposely concealed them for their own reasons.
In demonstrating the defendant’s innocence, counsel faced one key challenge at trial: How could the Byzantine complexities of campaign finance law, the joint committee and Senate campaign’s structure, and the twists and turns in the gala planning be boiled down to a convincing, defensible theme, one that would appeal to the jury’s emotions and lead the jurors to acquit the defendant?
In a sense, every trial presents variations of this essential problem. As we move through discussions of various phases of a trial, we will refer to moments in the Rosen case by way of example. The reader is encouraged to weigh the worth of the suggestions presented here with healthy skepticism, for by no means is any one outlook on trying cases definitive.
First we will examine the opening statement. After a general discussion, we will have the benefit of a critique of these particular openings by Judge Marvin J. Garbis of the U.S. District Court for the District of Maryland.