Inquiring minds want to know. Will Mike Carona take the stand in his corruption trial? Will a trial already expected to generate juicy testimony give us the ultimate dramatic showdown of having the former sheriff in the box, dueling with a government attorney?
Normally, you'd dismiss the possibility from the get-go. Some defendants just aren't up to it. They'd either melt or explode on the witness stand. Either way, not good.
But here we have Carona, coming out of virtual obscurity in 1998 to be elected three times as Orange County's top law enforcement officer and touted for his ability to win over critics. Even Assistant U.S. Atty. Brett Sagel described him in his opening statement Wednesday as "bright, articulate, charismatic."
And in a trial in which former friends with dubious backgrounds are likely to be Carona's most potent accusers, why not let the natural-born schmoozer take them on?
"By far the worst gamble for the defense is putting the defendant on the stand," says Chapman University School of Law professor Larry Rosenthal, a former federal prosecutor in Chicago who specialized in organized crime and public corruption cases. "Because the minute you put him on the stand, you lose the benefit of the reasonable doubt standard."
He says "there are dozens of places where reasonable doubt can creep in" during a trial. For example, jurors finding out that a defendant didn't properly fill out the required financial disclosure statements (which forms part of the case against Carona) might charitably conclude that he was too busy, simply not attentive enough or that the forms were overly complicated. Or even that it seems like a technicality, that it was a mistake they could see themselves making, and might not justify prison time.
But such musings can take on a whole different tone, Rosenthal says, if the defendant is facing a government attorney boring in on him with questions like: "You can't remember being given tens of thousands of dollars, sir? Does that happen to you every day, sir?"
And there's an immovable bottom line, Rosenthal says: "Once the jury thinks that defendant has looked them in the eye and lied, they convict."
In 5 1/2 years as a trial lawyer in the U.S. attorney's office, Rosenthal says, he preferred that the defendant testify. "It's only the very unusual defendant that can survive cross-examination and help himself."
The Carona defense team would appear to have another problem, Rosenthal says. Excerpts from secretly recorded conversations between Carona and government witness Don Haidl -- some of which have already been made public in court proceedings -- suggest that illegal payments were made to Carona. Both men use the word "untraceable" in apparent references to cash that changed hands.
"If the tape is as devastating as it seems, the upshot may well be that Carona can't testify," Rosenthal says, "because what would happen is that he'd have to try and explain the tape and no explanation is going to sound good. That's what can turn what may seem like a technical violation into a guy committing perjury."
The Carona defense knows what's on the tape and still has chosen to fight the charges. Defense attorney Brian Sun made clear Wednesday that he and co-counsel Jeffrey Rawitz will challenge the credibility of some of Carona's accusers.
Some lawyers tell jurors the defendant will testify. The best lawyers, Rosenthal says, do as Sun did and promise nothing.
Although it might shock the layman (it did me), Rosenthal says it's possible Carona's lawyers haven't even asked him yet if he can square what's on the tapes with his insistence of innocence. They may not have asked him every detail about how he handled the financial disclosure forms.
"Most people have a vision that when you go see a defense lawyer," Rosenthal says, "they say, 'Tell me what happened.' Top-notch lawyers never ask that question." Rather, he says, even though the Carona trial has started, it's likely his lawyers will listen to the evidence against him and wait until relatively late in the trial to get his version of events.
It's never easy to decide to let a defendant testify in a high-profile federal case, Rosenthal says. He thinks Alaska Sen. Ted Stevens' recent testimony in his corruption case may have sunk his chances, because jurors just didn't believe him.
But not testifying in a case like Carona's also poses a problem, Rosenthal says. "You hate to put a guy on the stand when the government case looks weak and like it's 'no harm-no foul'," he says. "But when you're representing an upstanding public official as a defendant, the jury expects an explanation, because they're thinking, 'If I'm wrongly accused, wild horses wouldn't keep me off the stand.' So that's a huge tactical dilemma the defense faces."
I've been assuming Carona would have to testify. The government's case would have to be pretty flimsy for Carona not to have to take the stand to rebut it.
After talking to Rosenthal, I'm not so sure. He makes it sound as if potential peril awaits the former sheriff. And he says even the coolest of cookies can crumble under cross-examination.
"This is a decision," Rosenthal says, "you push off as long as you possibly can, because it's such a dangerous gamble."