Veteran white-collar defense attorney retiring after a career of big wins

LOS ANGELES — Veteran white-collar defense lawyer Richard Marmaro’s performance in a 1996 securities fraud trial was akin to a sea change for David Scheper.

Scheper had spent plenty of time in courtrooms as an assistant U.S. attorney, but he said Marmaro made him realize he’d been playing in the minor leagues and was now faced with ace pitcher Sandy Koufax.

“When you’re a prosecutor, there’s your life before you’ve seen Rich Marmaro try a case and defend a client, and there’s your life after you’ve seen Rich Marmaro try a case and defend a client,” said Scheper, now a partner at Scheper Kim & Harris LLP. “He was a combination of someone who was fantastically articulate but unbelievably street-smart and quick to the punch.”

After nearly four decades defending high-profile clients in major cases, Marmaro’s reign as one of the country’s top trial attorneys ends Monday with his retirement from Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates, where he’s led the West Coast Securities and Exchange Commission enforcement and white collar defense practice since 2006.

He could have continued trying cases, but Marmaro said he knew his defense of ophthalmology executive James Mazzo against federal insider trading charges would be his final case.

After two lengthy trials and two hung juries, federal prosecutors moved to dismiss Mazzo’s 20-count indictment last month as part of a civil SEC settlement in a dramatic, nighttime conclusion that involved several visits to two U.S. district judges and thwarted a third trial.

“Now I can say it, but I didn’t feel it as I was going through it: This was a great way to end for me. The fact that it went a second time made it all the more of a challenge and all the sweeter of a victory,” Marmaro said in a recent interview at Skadden’s Los Angeles office, reflecting on the major cases that propelled him to the top of a profession he’d eyed since he was a child watching “Perry Mason” with his grandmother.

In his first extensive comments about the nearly 10-year saga, Marmaro discussed the enormous pressure he felt defending Mazzo, who he’s always believed was innocent, and the massive undertaking that resulted in two hung juries, including his cross-examination of Mazzo’s convicted co-defendant, retired Major League Baseball player Doug DeCinces.

“The distinguishing thing about this case was the stress level of the jury deliberations. Two trials. Eight days of deliberations. I couldn’t see myself putting myself through that anymore,” said Marmaro, who will be 68 in February.

“It’s not a question of becoming friends with the defendant. I never become friends with my client,” he said. “But I had so much enormous respect for this man that I did not want his life destroyed, his net worth destroyed, his liberty taken away when I knew he didn’t do it. So that became a tremendous responsibility.”

After escaping the first trial with an 8-4 split in favor of conviction, Marmaro persuaded the majority of the second jury to acquit Mazzo on a new indictment that included perjury charges, despite DeCinces’ testimony that Mazzo urged him to buy stock in his company Advanced Medical Optics because of a looming, lucrative acquisition deal with Abbott Laboratories. Jurors voted 10-2 to acquit Mazzo on 19 counts, then 9-3 on a 20th.

For Marmaro, DeCinces’ presence as a witness tested key skills he acquired years ago at the U.S. attorney’s office in Los Angeles, where he spent four years after moving to California in 1980 with a law degree from New York University School of Law, experience in civil litigation and clerking for the late U.S. District Judge Irving B. Cooper in New York City.

A native of Long Island, Marmaro knew he wanted to be a trial lawyer from observing Cooper’s trials, and prosecuting crimes provided him unmatched experience he carried with him through his final trial.

“In other words, I knew what the government does with its cooperators, so I knew how to unpack it,” Marmaro said.

Marmaro also had personal insight into DeCinces as a witness: His older brother, Marc, now a retired Los Angeles County Superior Court judge, deposed him during a civil case in 2010, so Marmaro read the transcript “just to get an idea of how cagey a witness he is.”

“Obviously, my brother is intimately involved in my career, and he said, ‘Boy, you’re going to have a blast cross-examining Doug DeCinces,” Marmaro said.

He was right.

The cross, which lasted about eight hours over two days, yielded exactly what Marmaro knew he needed to support his argument that DeCinces was lying about his guilt and had instead relied on advice from renowned investor Richard “Dick” Pickup and interpreted Mazzo’s unusually busy schedule as a sign that a possibly lucrative deal was imminent.

He compared it to a scene from the film, “A Few Good Men,” in which Lt. Daniel Kaffee said he needed to lead Col. Nathan Jessep “right where he’s dying to go.”

“I knew that Doug DeCinces wanted to get up there and basically say he wasn’t guilty, but he couldn’t say that because he had the cooperation deal. So I just gave him the rope, and he took it,” Marmaro said. “I knew that DeCinces wanted to say that he relied on Pickup and that he read Mazzo’s behavior, and he did. I figured I could get it but not as well as we got it.”

The case exemplifies what friends describe as Marmaro’s fierce belief in his clients and his dedication to their cases. He recalled crying in pretrial preparation while listening to Mazzo’s friends and acquaintances speak of his generosity and character.

“He really has a full belief in his client’s positions, takes on as his own their anxieties and essentially tells them, ‘Don’t worry. I got this,’” said Bert H. Deixler, a partner at Kendall Brill & Klieger LLP.

Brendan V. Sullivan Jr., a senior partner at Williams & Connolly LLP, called Marmaro “one of the half dozen legendary lawyers in America today.” Sullivan and Marmaro met while representing co-defendants in the massive stock options backdating prosecution of Broadcom Corp. executives, which became Marmaro’s career-defining case after a judge dismissed the case mid-trial in 2009 because of prosecutorial misconduct issues Marmaro pursued.

“Often you have people going in a different direction, but in that case we had the ability to work together as if we were in the same firm, as if we were brothers,” Sullivan said. “He puts his clients first, puts his ego second and sets about winning the case.”

Deixler said Marmaro’s meticulous approach to life sometimes kept him awake when they were undergraduate roommates at George Washington University in Washington, D.C.

“He would study into the wee small hours, and he would end by saying, ‘Ask me anything.’ Sometimes it’d be 2 or 3 a.m. and I’d say, ‘I’m asking you, Rich, to turn off the lights,’” Deixler said. “That intensity and focus and commitment is something that I think was part of his reason for being so successful as a lawyer.”

Marmaro joined Deixler at McCambridge, Deixler & Marmaro LLP in 1988 after four years at Hochman Salkin & Deroy, where he’d been recruited from the U.S. attorney’s office by now-U.S. District Judge Stephen V. Wilson.

Marmaro established himself as an in-demand white-collar defense lawyer with significant victories, such as the 1994 trial of Columbia Savings & Loan CEO Thomas Spiegel, which ended with Spiegel’s acquittal on the 60-count indictment. Marmaro tried the case with Brad D. Brian of Munger, Tolles & Olson LLP, who he’s known since they were assistant U.S. attorneys together.

“I knew Rich, and I fully expected him to be smooth in court and fully effective, which he was, but what really affected me was his level of preparedness,” Brian said. “He works really hard, and he was really prepared.”

The case was an early career definer for Marmaro. Hours after Spiegel was acquitted, he received a call from a Merrill Lynch representative. Orange County had declared bankruptcy, and the financial giant wanted Marmaro to represent the broker who sold the troubled bonds.

He worked the case for six years while handling other matters along the way, including the defense of former United Press International and Financial News Network executive Earl Brian in a financial fraud trial.

It was the case that introduced him to Scheper, and while the jury convicted Earl Brian, Scheper said he found Marmaro’s defense persuasive enough that he didn’t object when Marmaro asked for a sentence of about five years although sentencing guidelines called for 10 years.

Scheper said Marmaro “remains to this day thoroughly positive that a jury got it wrong because he believes in his clients.”

“He truly is their champion, their tireless defender,” Scheper said.

In 2006, Marmaro joined Skadden from Proskauer Rose LLP, which he and Deixler’s firm had joined six years earlier.

A year later, he was trying what was then the most high-profile case of his career, the federal prosecution of former Brocade Communications CEO Gregory Reyes in the country’s first criminal stock-options backdating case. Reyes was convicted on all counts, but the 9th U.S. Circuit Court of Appeals overturned the verdict two years later based on issues Marmaro raised during trial.

“What we didn’t predict was the power of a jury in San Francisco, which doesn’t like white-collar defendants,” Marmaro said. “It was a terrible disappointment, but we knew in our hearts that the prosecutorial misconduct issue was a live one.”

Reyes was convicted again and sentenced to 18 months in prison, but Marmaro didn’t handle the second trial. By then, he was preparing to defend another high-profile executive in a criminal stock-options backdating trial, Broadcom Chief Financial Officer William Ruehle in Orange County.

When U.S. District Judge Cormac J. Carney dismissed Ruehle’s charges, he also dismissed the charges against Sullivan’s client, Henry Nicholas, and vacated the guilty pleas of other co-defendants, including Broadcom cofounder Henry Samueli.

Federal prosecutors haven’t brought a stock options backdating action since, making Marmaro the first and last attorney to try one.

“Some trial lawyers have one or two assets, and they do quite well with those, but he has it all. He has the presence in the courtroom. He’s smart. He has the tactical and strategic sense, and he can make a jury cry,” Sullivan said. “The jury’s going to like him, and they’re going to want to avoid hurting his client. That’s Rich Marmaro.”

Deixler believes Marmaro will embrace retirement, calling him a “nutso golfer” who “will be perfectly happy playing golf 300 times a year.” Marmaro already has plans: Starting Jan. 7, he’ll be at UCLA three days a week, attending two undergraduate courses in world history and motion pictures through the senior scholars program.

Sullivan, however, predicted his retirement won’t last.

“He’ll golf for a few years until someone cries out for help, and he won’t be able to resist,” Sullivan said. “He’ll be back in the fight.”