It’s more than a week and half into the trial of Bob Simels, a well-known and well-regarded New York criminal defense lawyer who was recorded by a snitch talking about neutralizing and killing witnesses. Simels was a tough-guy lawyer, and his defense is that it takes a tough-talking man to stand up to the government. No argument there.
To that end, Simels took the stand to offer his explanation for his conversations is that these are the types of words criminal defense lawyers use. From the NYLJ :
Mr. Simels, appearing calm and deliberate and looking directly at the jurors throughout his testimony, said that when he talked of the need to “neutralize” or “kill” a witness, as repeatedly heard on tapes of secretly recorded conversations played by the prosecution, he was not suggesting an intent to do harm, but rather to discredit the witnesses’ testimony.
“I use [those terms] all the time, and lawyers use them all the time,” Mr. Simels said. “It’s part of the vernacular of being a lawyer.”
Simels claimed that in his effort to investigate and develop evidence on behalf of his client, he tried to “play” the snitch, who he understood to be nothing more than a witness, to get him to talk, provide information, assist the defense in gathering as much as possible to match the government. Most outsiders don’t realize how little information and discovery the defense receives from the government, and how the defense goes into battle essentially blind, unless the defense lawyer can develop his own sources of information and evidence. The government, and the courts consider it unduly prejudicial to give the defense a fighting chance.
Simels’ lawyer, Gerald Shargel, sought to bolster the defendant’s testimony by calling Tony Ricco as an expert witness. Tony, another highly regarded criminal defense lawyer, was put on the stand to testify as to the ethical requirements and limits of a criminal defense lawyer.
Simels’ lawyer, Gerald Shargel, sought to bolster the defendant’s testimony by calling Tony Ricco as an expert witness. Tony, another highly regarded criminal defense lawyer, was put on the stand to testify as to the ethical requirements and limits of a criminal defense lawyer.
Though he did not discuss such a tact specifically, Mr. Ricco told the jury, “There’s nothing wrong with talking with witnesses and potential witnesses about anything. The bottom line is, what the lawyer ultimately decides to put in the courtroom…must be within the bounds of the law.”
Mr. Ricco proved an unusually candid expert witness. In an animated, hour-long back and forth with Assistant U.S. Attorney Morris J. Fodeman, Mr. Ricco frequently agreed with Mr. Fodeman, on occasion even emphatically expanding on Mr. Fodeman’s points—such as the rationale behind the prohibition of payments to witnesses.
When Mr. Fodeman asked Mr Ricco “how does Tony Ricco react?” to a witness’ suggestion that “an act of violence” might benefit the client, Mr. Ricco took a rare pause, then said, “The answer is that you’d dissuade somebody from doing that, but it depends on the circumstances.”
Mr. Ricco then added, “A lot of people say a lot of things,” for a lot of different reasons.
The irony here is that undercover government agents are given vast latitude to say, and suggest, all manner of criminal acts in order to induce their target to say incriminating things. The government knows all too well what it takes to get people to open up, to believe, to speak the words it wants to hear. Yet it prosecutes a criminal defense lawyer for taking his turn.
But is this really the “vernacular” of the criminal defense lawyer? I dunno. It’s not exactly the way I speak with witnesses, but then it’s not entirely off base to suggest that we don’t talk in terms of killing a witness on cross or neutralizing a witnesses testimony. Then again, what difference does it make whether I, or any other criminal defense lawyer, uses the same language as Bob Simels? It’s not like there’s a class in law school about how to talk tough to witnesses, or a disciplinary rule limiting the hyperbolic descriptions permitted. Each of uses the language, the words, that we feel are appropriate to express whatever it is we are trying to say. Sometimes, the words sound very wrong when taken out of context. Sometimes, the words sound very wrong in context.
Of course, using words like “kill” and “neutralize” can also mean that harm is intended, especially when accompanied by caveats like don’t harm the woman. But Bob Simels says that’s not what he meant.
But is this really the “vernacular” of the criminal defense lawyer? I dunno. It’s not exactly the way I speak with witnesses, but then it’s not entirely off base to suggest that we don’t talk in terms of killing a witness on cross or neutralizing a witnesses testimony. Then again, what difference does it make whether I, or any other criminal defense lawyer, uses the same language as Bob Simels? It’s not like there’s a class in law school about how to talk tough to witnesses, or a disciplinary rule limiting the hyperbolic descriptions permitted. Each of uses the language, the words, that we feel are appropriate to express whatever it is we are trying to say. Sometimes, the words sound very wrong when taken out of context. Sometimes, the words sound very wrong in context.
Of course, using words like “kill” and “neutralize” can also mean that harm is intended, especially when accompanied by caveats like don’t harm the woman. But Bob Simels says that’s not what he meant.
“I didn’t think I was sanctioning harm; I didn’t think I was suggesting harm,” Simels said, adding that he “never” intended to bribe witnesses or persuade them to lie.
Instead, Simels said, he was merely “flattering” the informant Selwyn Vaughn, a former associate of Khan’s, who had volunteered to track down witnesses.
This doesn’t mean that Simels wasn’t out on the ledge in the way he conducted himself. He’s often been considered a bit extreme, whether in scoring the case or in its handling.
I’ve tried to avoid posting about the trial as it’s progressed, largely because trials aren’t baseball games, with sides scoring runs inning by inning. No perspective can be gained in the middle, aside from some particularly notable evidence or testimony coming out. But the “vernacular” defense implicated the criminal defense bar as a whole, and raised a larger question than whether Bob Simels intended harm when he talked tough to the snitch.
This isn’t my vernacular, but then there’s no reason why Bob Simels shouldn’t be able to use whatever vernacular he finds most effective in performing his function. He doesn’t need to do it my way. Or your way.
Simels’ considerable ego was on display for the jury when he recalled besting a gaggle of lawyers competing for the job of representing Khan – a process known as a “beauty contest” – and mentioned he was featured in a book on lawyering because he was one of the best cross-examiners in the country.Then again, no successful criminal defense lawyer lacks in ego. It’s a requisite for doing this job and staring down the might of the United States government.
I’ve tried to avoid posting about the trial as it’s progressed, largely because trials aren’t baseball games, with sides scoring runs inning by inning. No perspective can be gained in the middle, aside from some particularly notable evidence or testimony coming out. But the “vernacular” defense implicated the criminal defense bar as a whole, and raised a larger question than whether Bob Simels intended harm when he talked tough to the snitch.
This isn’t my vernacular, but then there’s no reason why Bob Simels shouldn’t be able to use whatever vernacular he finds most effective in performing his function. He doesn’t need to do it my way. Or your way.
H/T The Blind Guy
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A silver-haired defense attorney taught me this rule early in my career: “Speak to clients and witnesses as if they were wired.”
It’s served me well.
I received similar advice from a thrice-indicted (but never convicted) lawyer.
My criminal law professor was more general- “At the end of most criminal cases, somebody goes to jail. Make sure it isn’t you.”
Another good rule to live by.