I am describing a federal criminal prosecution I was involved with many years ago. I was innocent.
For most of the time that the criminal prosecution was going on, it continuously amazed me that all my co-defendants were responding to an investor arbitration case that we were all in. The person that initiated the arbitration, Stephen, was one of my co-defendant’s clients. I did not know Stephen at all. Zero.
Stephen was representing his wealthy client. Stephen testified at my trial and was the only witness that ever so slightly implied that he had talked to me and that he was misled. The way that he did that was to say that I was in a meeting with him and others, should have heard what was being discussed, and took no action to dispute the veracity of the information. Later, it was revealed that the “meeting” lasted most of the morning and that various people were in attendance at different times and there was really no way to confirm what was said and who was in attendance at that time. It would be a great example of “reasonable doubt”, in my opinion.
My attorney and my co-defendant’s attorney offered some of my co-defendant’s deposition transcripts during my trial to cross-examine the witnesses. Clearly, they were defending themselves against the arbitration which put the Government in a very precarious position. When were the Government witnesses lying? Lying at the arbitration’s deposition or lying at my criminal trial? Of the three arbitration and Government co-defendants: John already plead guilty to something unrelated to my case, Tom plead guilty to one count in my case and Scott who had immunity was charged with perjury in my case. That was the position we had going into the arbitration.
The prosecutor said something profound as he introduced Scott at trial. The essence of his sentiment was that we all remember things in a way that is convenient to each of us. I believe there may be a great deal of truth to that. There are some distinctions to note. Not all of us choose to remember “conveniently”. Not all of us choose to remember the same way or the same things. Context of the events matter. Last and most importantly, just because you remember in a way that may be convenient for each of us does not change facts.
Facts are not convenient or our opinion, they are what happened and what is known. The trouble we had so often at trial was proving a negative. Like “no, I never said that” or “no I didn’t hear” him or “I never got that email” or “I wasn’t at that meeting”. In my opinion, trying to prove a negative gave rise to the prosecution creating quite a bit of drama around that type of sentiment.
This case was a money laundering case and I didn’t receive any money other than my normal salary. That is a fact. It is a rather important one by anyone’s standards and I expected it to be a significant deciding factor for the jury.
As we all sit for days in a law firm conference room, an arbitrator presides over what is fact and what is not. One fact is that the arbitration was intentionally delayed (the prosecutor filed a Motion) until after the criminal trial because there might be some confusion on the facts. The Motion was granted and the arbitration was delayed until after the criminal trial. But, facts aren’t confusing, by definition. Another fact is that everyone on the Fund Committee had pleaded guilty or been found guilty as we all sat “together” at an investor’s arbitration.
On one hand, it was going to be an incredible uphill battle at the arbitration to prove I was innocent because all of us were criminally convicted (beyond a reasonable doubt) and now we are in a civil setting (a preponderance of the evidence). Stephen, the representative for the client, was not my client. I did not do anything but paperwork with him. I held a mandatory compliance meeting that included Stephen’s representative, one of my co-defendants. Those were all facts.
On the other hand, even though I had been criminally convicted, there were still opportunities with the right evidence from this arbitration or elsewhere to prove my innocence. There were five convicted people that were going to swear under oath that they were telling the whole truth and nothing but the truth, unlike what some of them did at my trial. While I had not been allowed to discuss the criminal case before trial, we were now all sitting at the arbitration conference room table shaking our heads the same way.
Do you find yourself ever coming up with your opinion before you really know the facts?