Editor’s Note: Shan Wu, a former federal prosecutor, briefly represented Rick Gates. The information or opinions contained in this piece are not based upon any confidential or attorney-client information. Follow him on Twitter @shanlonwu. The views expressed in this commentary are his own. View more opinion articles on CNN.
Closing arguments commence Wednesday morning in the Paul Manafort trial. Here are a few key things to watch for:
Documents, documents, documents
The paper trail is critical to any white-collar case – and in Manafort’s case, in particular, there are copious amounts of emails, bank statements and loan applications to consider.
The prosecution bears the heavy burden of proving their case, so expect their closing argument to be long and detailed. Many documents will be reintroduced to further the narrative that they are trying to convince the jury is the truth. At trial, the presentation and admission of documents can be a mind-numbing process, but once the documents are in evidence, good prosecutors will be able to weave the documents into a livelier tale of wrongdoing.
The defense will want to deflect the jury’s attention away from documents, for fear the overwhelming number alone will persuade the jury of guilt. Instead, watch for the defense to highlight what documents may not show – for example, Manafort’s specifically admitting he committed fraud.
Willfulness and intent
Documents, on their own, rarely show “smoking gun” evidence of intent. Witnesses are needed to demonstrate Manafort’s state of mind. Look to the prosecution to carefully cull out what they believe are high points in witness testimony that help prove Manafort was fully aware and intended any and all wrongdoing.
Look to the defense to argue that no witness can likely say something as direct as “Manafort exclaimed, ‘Hey, let’s commit criminal fraud!’” and that the witnesses are therefore being asked to speculate or make inferences.
Credibility of immunized and cooperating witnesses
The Manafort trial has an unusually high number of immunized (five immunized witnesses) and cooperating witnesses (one cooperating witness, Rick Gates). Look to both sides to use that fact in their arguments.
The prosecution knows the building blocks of a white-collar prosecution like this one are the documents – but the cement that holds it together are credible witnesses. They will look to bolster witness credibility by emphasizing how immunized and cooperating witnesses should be viewed as honest because they have admitted their wrongdoing and guilt through the agreements they entered into for being immunized and, in Gates’ case, pleading guilty and cooperating. Expect the prosecution also to say that the immunized and cooperating witnesses have an extra incentive to be truthful because their immunity and cooperation agreements can be revoked if the witnesses lie under oath.
Conversely, the defense will argue that it is precisely these arrangements that incentivize immunized witnesses and cooperators like Gates to parrot anything the prosecution wants them to say. Expect the defense to argue that the requirement that the witnesses be truthful really means the witnesses must testify to whatever they think the prosecution deems to be the truth!
The combat over the deals given to immunized and cooperating witnesses will raise the specter of jury nullification, which is when a jury acquits or is hung despite believing the defendant is guilty. It does because it believes the law has been unfairly or immorally applied to the defendant. In this case, jury nullification would be hypothetically based upon the idea that the prosecution is unjust and unfair because it has cut so many sweetheart deals with Gates and others in an effort to prosecute Manafort.
What each side must watch for
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The prosecution must take care not to overemphasize the ostrich leather aspects of the evidence – in other words, Manafort’s luxurious lifestyle. Judge T.S. Ellis has already rebuked them about this and another rebuke during closing arguments could be very damaging for the prosecution.
The defense will need to be cautious about excessive attacks on Gates’ character. Engaging in what the jury may find to be character assassination of Gates will not necessarily make Manafort more sympathetic and, importantly, the defense must remember the jury does not have to like Gates to believe him.