To testify or not to testify

On April 11, a jury convicted infamous con man Christian Gerhartsreiter for the 1985 murder of John Sohus. The defense's theory was that Gerhartsreiter had no motive and Sohus' wife - who also went missing in 1985 and has never been found - committed the murder. The prosecution argued that Gerhartsreiter killed her too, the remains just haven't been found.

The most intriguing part of it all was that Gerhartsreiter was convicted (within a few hours of deliberations) despite no direct evidence that he committed the crime. All seasoned criminal defense attorneys and prosecutors are familiar with California Criminal Jury Instruction 224: If you can draw two or more reasonable conclusions from the circumstantial evidence (Gerhartsreiter did it vs. Linda Sohus did it) and one of those reasonable conclusions points to innocence (Linda Sohus) you must accept the one that points to innocence.

Now add to this that two reputable handwriting experts testified that they were almost certain that Linda Sohus was the person who wrote several postcards mailed from France to her friends and family weeks after she and her husband went missing.

So what went wrong for the defense? Why did the jury find it unreasonable to believe that Linda Sohus committed the murder?

This leads to the never-ending dispute of whether the defendant should take the stand. A colleague who has been practicing criminal defense for over 30 years put it to me once in a coarse, yet undeniably realistic way: "Sometimes the defendant will testify and stink up the room." There can be many reasons why a defendant elects not to testify. Sometimes the defendant really wants to tell his or her side of the story to the jury but feels a prior conviction will come out on cross-examination and its game over with the jury.

Perhaps the most important question to ask in making this determination is: Are there certain questions that only the defendant can answer for the jury?

Most of the time, the defense attorney can deal with the difficult prosecutorial points - though not always.

For example, Gerhartsreiter's lawyers probably could have explained why the remains were wrapped in bags that originated from universities he attended: Gerhartsreiter happened to live at or near the residence where the bodies were found, and the killer simply took from what was accessible.

However, in Gerhartsreiter's case there were several points that only Gerhartsreiter himself could really address. After hearing from 45 witnesses, he - not his lawyer - needed to explain to the jury why he was living the life of a con man. And more importantly, why living that lifestyle does not make him a murderer. He also needed to explain why he went into hiding shortly after the disappearance of Suhus and what he was doing with their car after they disappeared.

Of course, the jury is instructed that the defendant has a Fifth Amendment right not to testify and the exercising of that right can't be used against him. But if a pipe bursts and is spraying everywhere, you better plug it or there's going to be a flood. Gerhartsreiter didn't plug the holes.

"The prosecutor didn't leave much for the defense to work with," said juror Salvador Ruiz. In other words, only Gerhartsreiter could have saved Gerhartsreiter.

Surely the decision whether Gerhartsreiter should have testified was mulled over by him and his attorneys, and the reasons for their decision respectfully lies with them alone. This article by no means is intended to second-guess that decision; rather, its purpose is to highlight what may underlie that decision, its importance, and how it applies to us.

As criminal defense lawyers we are constantly faced with the decision of whether our client should take the stand. While ultimately it is the client's decision, oftentimes the client defers to the attorney's best judgment in making that decision.

Muhammed Ali said it best: "Silence is golden when you can't think of a good answer." If there are important questions that only the client can and has the ability to answer, maybe let him answer them...