Raj Rajaratnam Must Take The Witness Stand and Testify in His Defense

As the defense begins to present its case to the jury, we must keep in mind Mr. Rajaratnam’s best hope for freedom is not in this courtroom but rather a more august forum: the United States Court of Appeals for the Second Circuit. There Raj has a shot — albeit a long shot (think three point line and move back ten steps) — to convince the appellate court that the audio tapes that have been so damning should have been disallowed because of prosecutorial misconduct.

But Mr. Rajaratnam has one card to play. Take the witness stand. As a federal prosecutor, I tried many a criminal case and I can tell you that juries are not easy to predict. You might think the evidence is overwhelming. Throughout the weeks of trial you’re certain you’ve seen what appear to be knowing smiles from the jurors as they took their seats only a few feet from your table in the courtroom. And then bam, surprise! They are deadlocked, or worse they have voted for acquittal. And in your cloud of dismay and second thoughts, you talk to them after the trial and learn to find they have constructed the most preposterous theory of the evidence. Usually, one or two jurors have taken a random fact and a throwaway judicial ruling to concoct a theory for a finding of not guilty. In your post trial shame, you wonder if they were even present at the same trial.

Mr. Rajaratnam does not look evil. He is corpulent and seems like a nice fella to share a drink with and discuss the latest … ummm … corporate gossip. Yeah. Play that up. It was just a bunch of friends gossiping. Is this the face of a felon? In the end most juries are smart, sober and rational. They will take their responsibilities seriously and follow the court’s instructions, but once in a while, when you least expect it, they will surprise you.

Roland Thau

For an experienced trial attorney who has handled many criminal cases, Mr. Berk’s comments are remarkably shallow, lacking in the astute comments and analysis one might expect of someone with his background.
He suggests, without explicitly saying so, that Mr. Rajaratnam will probably be convicted unless (a very unlikely scenario) he takes the stand at his trial.
Notwithstanding this defendant’s apparent pleasant appearance and demeanor as he is silently sitting in the courtroom, testifying would expose him to devastating cross-examination in which he would be called upon to explain how it was that despite all the research he and his firm conducted, he did not make certain stock purchases which yielded handsome profit or sales which avoided losses until sometimes minutes after he had received inside information.
Perhaps if Mr. Berk represented him and called him to the stand, Mr. R. would testify that he had already decided to make these transactions before receiving the allegedly improper information but simply hadn’t gotten around to it and it was a coincidence that he got that information just as he was about to buy and sell based on his lawful research.
A defendant who may look warm and cuddly as he sits silently often loses that charm under cross-examination when his adversary has powerful ammunition, all the more so when he has been in the habit of commanding others and being in control. That kind of person will often become combative and arrogant under vigorous, relentless and well prepared cross-examination. Jurors who come from more modest backgrounds tend to be less than impressed with such testifying defendants.