Kane Trial Day 5: AG Kane declines to testify, and rests her defense without presenting witnesses

Since state Treasurer Budd Dwyer’s conviction and tragic death, this type of non-defense at trial hasn’t been used again by state officials facing prosecution, and for good reason

 

by Bill Keisling

 

Almost 30 years ago, in December 1986, Pennsylvania Treasurer R. Budd Dwyer, on trial in federal court, declined to present a defense at trial, and didn’t proclaim his innocence before the jury.

Dwyer was convicted shortly thereafter, and his conviction led to his dramatic public suicide a month later during a news conference in the state treasurer’s office.

In my book The Sins of Our Fathers, I wrote about Dwyer and his fateful decision not to testify or to put on the stand a single witness in his defense. I wrote:

“At Dwyer’s trial his defense rested before calling a single witness, taking the tack that they didn’t want to dignify the charges. This passive defense just isn’t going to wash anymore. On the day he died Dwyer said he couldn’t afford another trial, even if he were to appeal. Where’s the expense? For much less he could have had a row of mannequins sitting next to him at the defense table and gotten the same result. Dwyer’s attorney did him a disservice by not fighting as if his client’s life depended on it.”

Since Dwyer’s conviction and tragic death, this type of non-defense at trial to my knowledge hasn’t been used again by state officials facing prosecution, and for good reason.

If prosecutors are going to get your scalp, the thinking has been since Treasurer Dwyer’s suicide, they’re going to have to fight really hard, at every quarter, to get it. Former state legislator Mike Veon’s spirited, knock-down-drag-out, no-holds-barred defense of himself in 2010 comes to mind as an example of what has been expected in state public corruption trials since Dwyer’s death.

Rep. Veon ultimately was convicted and sent to prison, but no one could say he didn’t go down swinging.

So it came as a surprise and somewhat of a shock last Friday, August 12, when state Attorney General Kathleen Kane and her attorneys announced that not only would Kane not testify on her own behalf — her defense would rest before calling a single witness.

For any who’ve been around for years watching Pennsylvania government, Kane’s decision not to put on a real defense was a frightening reminder of Treasurer Dwyer’s collapse, and demise by his own hand.

Unlike Dwyer’s badly outgunned single lawyer in federal court, Kane’s defense team in Montgomery County court certainly is not a “row of mannequins.” Nor did they come cheaply. Kane’s lawyers appear to be top-notch trail attorneys who are doing their best to work with the tough hand they’ve been dealt. They cross-examined the prosecution’s witnesses with low-key vigor and skill.

But will that be enough?

Throughout Kane’s trial those of us watching speculated whether Kane would take the stand in her own defense.

As Kane took body blows from prosecution witnesses Adrian King and consultant Josh Morrow, it seemed simply that she had to take the stand and “say it ain’t so.”

I spoke with several television and newspaper reporters about this before the start of trial Friday. One young reporter simply said, “Too risky.”

Of course, in a sense, he was right.

It’s always risky for a defendant to take the stand.

Kane on the witness stand would obviously risk being torn apart by DA Kevin Steele or his sharp assistant prosecutor, Michelle Henry.

But in Kane’s case it seemed necessary, for a variety of reasons. And what did she really have to lose?

Kane is Pennsylvania’s chief law enforcement officer, and it seemed incumbent on her and her public trust that she take the stand, jury or not, and say that King and Morrow were mistaken, confused or lying, and that she would never deliberately leak grand jury material or do the other things she’s been accused of doing, that she ran for office to uphold the law, not break it.

Although the jury was repeatedly told by Judge Wendy Demchick-Alloy not to hold Kane’s refusal to testify in any way against her, one wonders what the jurors think.

It must look terrible to the jury.

But there we were.

The prosecution rested its case on Friday after calling a few minor witnesses.

Then one of Kane’s lawyers, Doug Rosenbaum, rose to motion the judge to dismiss some of the charges, like perjury and official oppression.

The prosecution hasn’t met its burden and defense submits that no reasonable juror could find Kane guilty of those charges beyond a reasonable doubt, Rosenbaum tells the judge.

Rosenbaum pointed out that, “The commonwealth’s own witnesses contradict each other. How they can possibly achieve a conviction when one commonwealth witness is accusing another commonwealth witness of framing him? I have no idea.”

But Judge Demchick-Alloy responded that she’d been listening to the witnesses, and the prosecution’s burden for those charges had been met. Motion denied.

Much to most everyone’s surprise, it seemed, Kane lawyers then announced that the defense would rest, without calling a single witness. Not only would AG Kane not testify in her own defense: no one else would testify on her behalf, either.

With that the judge temporarily removed the jurors from the courtroom, and Kane took the stand.

The judge put to Kane the standard questions asked of defendants who decide not to testify at trial. The judge pointed out that Kane was a lawyer, and so must have an understanding of the law, and the possible consequences of her decision.

Did you have the opportunity to discuss with counsel your right to testify? the judge asked Kane.

Yes, Kane told the judge, she had.

Are you making this decision of you own free will? the judge asked her.

“Yes, I am,” Kane replied.

Kane wore a black dress. She sat with poise on the witness stand, her hands folded before her. She seemed calm, and collected.

“I have listened to the Commonwealth’s case and I don’t believe that I should testify in my own defense,” Kane told the judge. “I have considered all that and I still don’t think I have to testify.”

The judge called the jurors back in to the courtroom and told them she was sending them home until Monday morning, when they’d hear closing arguments and get the case for deliberation.

So the jurors will get the case, as is, and the jurors will decide.

The decision not to allow AG Kane to testify, or to even present witnesses, may have been reached by Kane’s legal team for reasons not immediately obvious.

Kane’s lawyers may have their eye on possible appeal, should she be convicted.

In a controversial pre-trial decision, Judge Demchick-Alloy refused to allow Kane to defend herself at trial by bringing up the tens of thousands of pornographic emails she’d discovered from many in the enraged old-boy network connected to her prosecution.

Kane could argue on appeal that the Judge Demchick-Alloy, before the trial even started, so gutted Kane’s defense, and her right to defend herself, that as a consequence Kane was unable to mount any defense at all.

Hence, her decision not to call witnesses, or to testify on her own behalf: no good defense was really possible, she might argue.

But all that’s in the future, and depends on what the twelve jurors decide.

Even so, as ridiculous and obvious as it sounds to say, Kane’s refusal to testify on the witness stand on her own behalf probably signals her exit from state politics.

As attorney general, Kane must not only be able to defend the people of the Commonwealth of Pennsylvania.

The people of Pennsylvania expect their attorney general be able to defend herself.