By Diane Wells • October 25, 2020
I am writing about my criminal trial many years ago.
When this whole debacle first began, I said that if it came to it that I would testify in my own defense. Part of me hoped and prayed it would never come to that, fortunately, as time passed another part of me became stronger, and more realistic about what it was like to be in the criminal justice system. I hated more than I could say that I was in this situation, but I would never be able to live with myself if I hadn’t done everything I could to stand up for the truth. When everybody leaves the room and you are left to sit and think, if you did all that you could do, that would have to be enough. The decision to testify had far-reaching effects. It was my decision alone. Testifying was uniquely my choice.
From the time the trial began, every day, after a full day in the courtroom, we would walk back to Dan, my attorney’s, office. We would collapse on the couch to review the comments, events, surprises, challenges, and possibly a light moment or joke. After the decompression, we would begin to prepare for what was expected the next day, if we dared to think we knew. This time, the next day, I was going to testify.
Dan asked me if I was sure I still wanted to do “this”. Dan had told me from the beginning that I had two choices – testify or not and plead guilty or not. Dan pulled out his folder of questions for me and looked at his notes, he looked at me and sighed. He was exhausted. It had already been about 8 days of the prosecution’s case, very long days and very short nights. It wears on you in a way that is hard to describe. It is a bit like the world stops and the only thing that is happening is the trial and it consumes your every thought. I didn’t want to be exhausted. I wanted to say and do everything I could to have the jury know me and the truth.
There had always been an undertone in the courtroom about whether I would testify or not. Repeatedly I am told that I didn’t have to prove my innocence, the prosecution had to prove my guilt beyond a reasonable doubt. Reality didn’t feel like that. Reality felt like from day one, I was constantly being challenged to prove my innocence. If I said something I knew to be true but had no evidence to back it somehow I was made to feel like it might not be true. Not because it wasn’t true, but because I had no 100% proof to offer.
When you have no hard evidence, you become the proof. Your credibility, your demeanor, your story, your body language, your tone, your choice of words…. they become the cocktail that the jury sips deciding what the truth is in the absence of hard evidence. I felt like I could present the truth and I felt like I had to do that.
There was an occasional jab from the prosecutor throughout his part of the case about whether I would or would not testify. I didn’t pay too much attention to them. Everyone knows that it is a significant risk to testify on your own behalf. I was more concerned about being disappointed in myself for the rest of my life if I didn’t take every opportunity I could to tell the truth. That’s why testifying was of the utmost importance.
I had to be the person I always wanted to be right now. The best version of myself needed to be in front of the jurors. There was no time left. I was about to testify in my own defense. I had to be the absolute best witness at my own trial. There is no instruction booklet. Lots of people are cheering for you and have no idea what to say. Their body language is like – wow, glad I’m not you or this is a pretty crazy situation. Good intentions, heartfelt wishes, yet my friends and family’s sentiments felt quite clumsy.
More and more, over a year and a half of waiting for the trial to begin, I felt like I had become a better version of myself, bit by painful bit. Strange, but true.
I wished my husband could have been by my side. My husband had started the case with tears in his eyes when I told him about the charges. He said that I couldn’t plead guilty to something I didn’t do. A year and a half had passed by the time the trial came. Over that time, there were many times when his fear and other factors got the best of him and he said and did things that were less than supportive. After a few months, my attorney didn’t want to talk to my husband if he didn’t have to because my husband was difficult to reason with relative to what was important in the case. As the tension mounted and the trial approached, I said to my husband that if he said a crossword to me during the trial, I would leave and stay with my mother until the trial was over. My husband didn’t say a crossword to me during the trial. He didn’t say much at all. I think that he was often in disbelief that this whole criminal case was happening.
My attorney, Dan, wanted the jury to understand who I was. At this point in our one and a half year relationship, I knew that Dan knew who I was. He knew I was innocent and that made this case so hard for him. I was struggling all the time, but my struggle was to get the truth to people that would help decide the case. I watched Dan struggle for different reasons. Dan had been a prosecutor and he knew what an uphill battle I was in. Knowing that if I were found guilty there was a very real possibility that I would not be with my kids bothered Dan. Dan was doing everything in his power to show the jury who I was and ….who I was not. I was a wife, mother of 3, trust department professional, and well educated. I was not a criminal.
We were all gathered at the defense table when Dan stood and turned to the judge and said "the defense calls"….my name. I literally took a small skip in my step as I hurried to the witness chair. I’m not sure that anyone noticed, but I know I did it because of how incredibly ready I was to tell everyone what the truth was. I had to be careful because I was over-ripe and I didn’t want that to translate into cockiness or arrogance. I sat down on the perch, took a quick gaze at my new view, and smiled nervously.
State your name for the court. And with that request, I was on.
Dan took the jury through some of my childhood, education, getting married, and having kids, all along saying that I took classes and more responsibilities to further my career as most people would expect. I studied for and obtained various securities licenses, insurance licenses, real estate licenses, and other training as I thought it would add to my expertise and helpfulness for my clients. Ironically, I became a securities arbitrator to settle industry disputes among professionals and clients.
Dan and I created a rhythm of questions and answers that felt like a “this is your life” episode. It felt crazy to me to be on display selling my life to the jury as though I was asking them to believe that I am who I am.
After carefully laying out the foundation of my life – childhood, family, education, the mood shifted and we began to discuss my professional life. My role as an administrator of a venture capital fund is what the case involved and that is what the jury should be most interested in, but we were describing how I arrived professionally.
The focus would continue to be on my work at Mayflower, a small boutique firm that did venture capital work and consulting. Dan got directly to the question that needed to be asked. Did I conspire with others to take investor’s money? I looked right at the jury and answered… I hadn’t. Never considered it. It’s just not who I am. I had my own money and family and friend’s money invested in the same account as everyone else.
There, I said it. I was confident and said it right to the jury’s “face”. I hoped and prayed that they felt it and knew it as I meant it. Part of my defense was “reliance”. Reliance is the complete dependence on an expert to carry out part of your responsibilities. In this case, reliance on the attorney and the accountant to do what their expertise said I should do. The way I understood it, if I told the “expert” every relevant piece of information regarding an issue and they told me what I should do and I did it, that was reliance. If any of those pieces didn’t fit together, I couldn’t claim reliance. I talked to the attorney multiple times a day nearly every day. I told Dan that I would have been able to tell when the attorney or I was on vacation because those were the only times we didn’t talk. Likewise, the accountant was a CPA and his office was next to mine. We talked every day he was there. Reliance – yes, it was absolutely correct.
This case was about a high-risk venture capital investment. Dan asked me questions about my few investors. The line of questioning was about having my parents and two close friends invested in the venture capital fund. Those were the only investors I had in the Fund – my closest people. I was personally invested in it too. I put my money where my mouth was. I believed in the Fund. I was loudly thinking and hoping that the jury had to be asking themselves why would this well-educated woman invest in a Fund and put her closest relationships at risk for what the Government has said is a scheme.
Another line of questioning in my testimony was my role in the Fund. I was clearly defined as the administrator. I talked to investors, but I talked with them about their paperwork. I didn’t know them or their investment objectives. I was well-qualified to review their extensive paperwork and make sure that they were well suited for the investment based on their answers. If they answered questions in a way that was questionable or unsuitable, I talked with them or the attorney for guidance. I did serve as a back-up to the accountant for wiring funds to investment companies if the accountant was unavailable. As it turned out, the accountant was unavailable more than I would have expected, so I regularly wired out funds based on the fund committee’s voting.
We were on a mission to tell the truth no matter who believed us. I had been waiting what felt like forever
to testify and I was ready. If I never uttered another word after my testimony, I had to get this out. I had to be heard by people that could decide my future.
I watched Dan wrestle with my case. As I grew to understand the criminal justice system, I learned that most defendants are guilty. It’s the attorney’s responsibility to have the defendant accept responsibility and mitigate the damages as much as reasonable. What does a criminal defense attorney do when they know that their client is innocent? I think they get upset that the system gives them very little means to prove their innocence.
Testifying was liberating even if I would never know what the jury thought. I still had the truth and I told it to the best of my ability. I was at peace with that.
Within no time, there was another Rule 29 introduced to the Court. My head spun around. Once again, we had an opportunity to say to the Judge that the case against me had not been proven. The Judge was an independent thinking judge and he watched me testify. There wasn’t a moment when the prosecutor on cross-examination was able to trip me up and say that I did something that I had been accused of. There wasn’t a time during my testimony that there was an epiphany that the prosecution had been waiting to expose. It didn’t happen.
Rule 29. Another opportunity to have the judge dismiss the case before the jury had it. Disappointingly, the Judge had watched the jury sit through a 9-day trial and he decided that they would have the opportunity to reach a verdict. Obviously, I wanted to be found innocent. It seemed like the Judge was about to do it himself, but then….he didn’t. For whatever reason, the Judge gave the jury the case.
Court was dismissed for the day so that the Jury could begin deliberations the next day.
We all went home. It was hard to know what to do when you are waiting for others to decide the path that your life will take. How long would it take for the Jury to decide? What questions would the jury pose while they deliberated? It kept you on the edge of your seat. I told my attorney that I wanted to go back to work while the jury deliberated. It would keep me somewhat busy. I wanted to see what it felt like to go back and do my job, step back into my “old life”. I wanted to see if it was still available and how I felt sitting in my chair at work.
My attorney, Dan, wouldn’t let me go back to work even though my office was very close by. When you are told there is a verdict, you have to pop into the Courtroom pretty quickly. Like everything else, I followed the attorney’s advice and sat with him trying to think of anything but how the verdict would turn out. Small talk was beyond Dan and me. Dan always had stacks of work to do so I watched him and pondered nothing. Nothing. I wanted to think about nothing. That sounded great. I couldn’t let my mind succumb to the worst that could happen because it shouldn’t happen. It just wouldn’t be right. I knew it was possible. I couldn’t let my thoughts set me free either because that would be too liberating too fast.
So we waited.
Surprisingly, the Jury came back the next day with a verdict ready to present.
I was alone but incredibly strong. I wanted to hold on to this feeling forever. Just think of what I could do if I could channel this feeling and passion into other causes. I sat in this feeling as I waited to hear my fate.