At the last NBA All-Star game SAP unveiled a player-efficiency software program called SportVU. It records every movement of a player during a game. It plots 792,000 data points — shooting, rebounding, defensive efficiency, spacing on the court, speed, and dribbling. By crunching these numbers it predicts the most effective combination of players and reduces the coach’s risk.

With recent advances in technology, statistics, math and science we are measuring everything. Everything that is except what we do in the courtroom. We don’t have any algorithms, calculus, or equations. Instead we do it the old-fashioned way, relying on instinct, received wisdom and anecdotal war stories.

We have cliches instead of science.

Rothstein’s Revenge

This brings me to the Christina Kitterman trial, notable for the inaugural testimony of arch criminal Scott Rothstein. The charges against her seemed simple. Kitterman was indicted on three counts of wire fraud for posing as chairwoman of the Florida Bar’s grievance committee and lying to investors to assuage their suspicions of Rothstein’s ponzi scheme.

As Rothstein’s money began drying up, his investors became anxious, so he concocted a desperate plan to keep the money flowing. He told them that 26 Bar complaints had been filed against him and, if the investors didn’t continue to cough up large sums of money, he could be suspended and they would lose everything. But the investors wanted proof and asked to meet with the investigator. So Rothstein orchestrated a conference call with Kitterman posing as the Bar investigator.

The Trial Strategy

Kitterman’s defense lawyers demanded that Rothstein be plucked out of the bowels of the BOP and deposited on the witness stand. A ballsy, high risk ploy. Would his presence help or hurt the defense? There are no metrics to measure, no book for guidance and no precedent to call on.

Defense attorney Valentin Rodriguez: “We felt he was essential to our defense… the jury needed to see him and how manipulative he was and is.” That was his defense but doesn’t this violate the rule against human nature; the Wizard of Oz was only frightening when he was behind the curtain.

Peter Feldman, Rodriguez’s co-counsel, said, “We knew the risk of calling him as he is unpredictable. I think that risk was outweighed by the jury being able to see him—live and in color—conducting his rock-star lifestyle.”

Rodriguez said he wanted jurors to experience Rothstein’s outsized ego in 1½ days of testimony. “Did we get one direct response from Mr. Rothstein? He just talked. This was his day to shine, and he did it.”

The decision is not “will this succeed” but “do the chances that it will make things better outweigh the chances that it will make things worse?” This is a complex inquiry, fraught with unresolvable doubts, yet requiring intimate knowledge of the facts, human psychology, strategy, and tactics. It is a judgment call. The decision is not made in a vacuum, it’s against the alternative. What do we have to lose?

In retrospect they probably made the wrong decision, but they had the courage to make it. It is easy now to condemn, but making the trial-time decision is far more difficult. When you take risks, you learn that there will be times when you succeed and there will be times when you fail; both times you will be judged. C’est la guerre.

The Downside Risk

Rothstein is a sociopath. He will declare war. Seek utter destruction. What does he have to lose? He will do his best to hurt the client. He will score damaging blows. It will be like a lion tamer facing a wild animal – hostile, cunning, smart and evasive.

Cross is a defensive weapon, not offensive. In my experience, calling a witness just to impeach doesn’t work. Cross can diminish but not make your case. It is hard to cross a street-smart wise guy who is unconstrained by any rules. He will say whatever he wants. The cornered rat with nothing to lose is a dangerous animal and most of the blood will be yours.

I believe there are times to take chances. But the one tactic I never take chances on is defense witnesses. They frighten me. One mistake and disaster.

Sadly all this and more turned out to be true.

The Testimony

Rothstein, shackled in handcuffs and leg irons (the government loves a good show) and 70 pounds lighter (the BOP diet) than his pre-incarceration 230 pounds, oozed on to the stand. He is in the fifth year of his 50-year sentence (a depressing thought).

Rothstein showed right away he knew how to play the game. He frequently turned to the jury when answering questions, like giving a lecture on how to cheat suckers.

Rothstein was not shy about the true motivation for his cooperation, and readily listed off his contributions that he hopes will one day result in his release. This cooperation included testimony that has resulted in convictions of former friends and associates, including his wife, as well as his claim that he helped the government recover $350 million for his victims.

Rothstein acknowledged that Kitterman was kept in the dark about the inner workings of his ponzi scheme, but said she knew what they were doing was illegal and did it anyway, without question. “If they could stop the Goose that Laid the Golden Egg from being suspended,” Rothstein said, “they could continue getting paid.”

“I didn’t need to tell her anything,” Rothstein said. “She knew it was a lie.” He described her as a “team player” who did what he asked in exchange for a $149,000 salary and lavish perks, like being invited to his suite on the 50-yard line at Sun Life stadium for Miami Dolphins games. He said she was a regular at many of his parties and dinners and she was more than willing to break the law or act unethically. Kitterman was “in on the game,” Rothstein said. “She was at meetings where we discussed illegality.”

Rothstein proved he was no gentleman. He volunteered that he and Kitterman had a “friends with benefits” relationship and bragged that Kitterman “pulled me into a bathroom stall to make out with me.” and it didn’t stop there. Soon it turned into a sexual relationship.

Rothstein also made damaging 404(b) accusations. He said he and Kitterman doctored a legal file to avoid a malpractice case. “I lied for her,” and we had a “quid pro quo” relationship. He said she also helped him illegally funnel illegal campaign contributions to U.S. Senator John McCain’s presidential campaign.

 The Verdict

The jury took only about an hour to convict Kitterman.

Juror Susan Schweiger said she thought Rothstein was “pretty much” a credible witness and jurors believed most of what he said. “I don’t understand why he was called by the defense because he did not help her,” Schweiger said. “I think he was, for the most part, telling the truth. I think he lied about some stuff because you don’t change your nature totally like that but we believed him.”

The naysayers and second-guessers had a field day. Assistant U.S. Attorney Lawrence LaVecchio told the eleven-woman, one-man jury that Kitterman’s legal team no doubt regretted calling Rothstein to the stand. “I submit to you it didn’t help,” he said. “They might not have liked the answers they got.”

Fort Lauderdale attorney Richard Rosenbaum, said: “Scott is a liar and he’s been proven to be a liar,” but the Kitterman defense “was eaten up” by Rothstein’s intelligence and legal acumen.

The Lesson

The strategy was to make the jury disgusted at him and thus reject the government case against Kitterman. There is no research on this, but we go with our gut. They must despise witnesses like him. Don’t they? I am not so sure. Can we rely on instinct? A gut feeling? Assumption? Anecdote?

For many years I have struggled to understand why juries believe cooperators and informants. Offensive people they would avoid in real life. Yet I think they secretly love to hear about the inner workings of criminals. Why else are crime shows so popular?

Addendum 6/23/14:

Since writing this post I came across the following similar observation by Dr. Arnold Relman: “Many people think that doctors make their recommendations from a basis of scientific certainty, that the facts are very clear and there’s only one way to treat an illness. In reality, that’s not always the case. Many things are a matter of conjecture, tradition, convenience and habit. In this gray area, where the facts are not clear and one has to make certain assumptions, it is unfortunately very easy to do things primarily because they are economically attractive.”

Addendum 2: This email came from NYU Law School for a research project on defense strategies. This instrument sounds far too puny to tease out any useful decision making. I am going to sign up just to get it. The $50 Amazon bribe is laughable (and the chance of getting one seem slim) but perhaps it could be redeemed for some good used strategy books.

“Criminal defense attorneys are invited to participate in a research study entitled, “Factors that Influence Defense Strategies”.The purpose of this research is to better understand whether defendant characteristics impact how one executes his/her defense strategy. If you choose to participate, you will complete a brief online survey, read a vignette, and complete a post-vignette survey. The survey will take approximately 15 to 20 minutes to complete. Participants who complete the survey within two weeks will be eligible for one of six $50 Amazon gift cards. These gift cards will be awarded randomly. In order to obtain this incentive, you must provide your email address after the survey. Please note that we will not be able to link your survey responses to your email address; therefore, we will be able to keep your responses anonymous. Winners will be emailed their $50 Amazon gift card within three weeks. One week from the day you receive the initial invitation to participate in our study, you will receive a second email to remind you to take part in the study.”