Avenatti represents himself against charges he stole from clients

SANTA ANA — Suspended attorney Michael J. Avenatti is practicing law at least one more time — defending himself in his federal wire fraud trial in Santa Ana.

On Tuesday, as jury voir dire was coming to an end, Avenatti threw the proceedings into disarray when he announced he wanted to represent himself.

After a recess, U.S. District Judge James V. Selna of the Central District of California told Avenatti that he could do so and that his defense counsel, H. Dean Steward of Newport Beach, would continue on in an advisory role.

Avenatti, a once successful plaintiffs’ lawyer from Newport Beach, is charged with 10 counts of wire fraud, accused of stealing $10 million from clients. In a second phase of the trial, scheduled to begin this fall, he is charged with tax and bankruptcy fraud related to a coffee business he co-owned. USA v. Avenatti, 8:19-cr-00061 (C.D. Cal. filed April 10, 2019).

Last month, Avenatti was sentenced to 30 months in federal prison in New York on charges related to an attempt to extort $20 million from Nike Inc. The California State Bar has suspended his license to practice law.

Tuesday’s unexpected turn of events came after several last-minute attempts by Steward to delay the trial. He has said the jurors would be tainted by media reports of the New York case and that virus mitigation protocols in the Santa Ana court had perverted the voir dire process. In a court filing, Steward also lashed out at a former prosecutor in the New York case who is now in private practice in Los Angeles at McDermott Will & Emery and has been tweeting about the Santa Ana case.

Selna rejected all the delay attempts and said he intended for the trial to proceed. Avenatti promised the decision to represent himself would not delay the proceedings.

First, Selna took more than half an hour — outside the jury’s presence — to gauge whether or not he was fit to do so. Selna grilled Avenatti about his academic background, where he attended law school, any expertise in criminal law and whether or not he ever tried a criminal case. Avenatti acknowledged making appearances in a few criminal cases, and referred to his involvement as a defendant in the New York case, where he did not represent himself.

Selna repeatedly asked Avenatti if he understood the nature of the charges he was facing, and the penalties they carried — from the wire fraud to the tax and bankruptcy fraud charges, totaling more than 330 years, if the maximum sentences were imposed. Selna also had Assistant U.S. Attorney Brett A. Sagel read aloud in court each count and its elements and maximum penalty.

Avenatti answered that he understood.

Once the judge had signed off, Avenatti got to work questioning potential alternate jurors. He used one peremptory challenge to excuse a male juror who said he often gets his news coverage from conservative media outlets.

Avenatti’s questioning of jurors appeared to be thorough, pointed, deliberate and strong. He asked them a wide range of questions, from their thoughts on the presumption of innocence, whether they believed the government had to prove a defendant was guilty beyond reasonable doubt and if that standard applied equally to everyone, even if they may not like the defendant.

Avenatti asked jurors if they believed innocent people get criminally charged and convicted, and asked one if she could decide the case based solely on the evidence and not focus on the fact that he is a career civil attorney.

The jury — made up of five women, five men, along with two women and two men as alternates — were sworn in Tuesday afternoon. Opening statements were to begin Wednesday at 9 a.m.

Kenneth P. White, former federal prosecutor and now partner at Brown White & Osborn LLP, who is not involved in the case, called Avenatti’s decision to represent himself “a train wreck hitting a dumpster fire,” warning that Avenatti could also take the stand on his own behalf, “which would go badly.”

“Mr. Avenatti is an experienced trial attorney and knows courtrooms. But that’s not the same thing as being an experienced criminal defense attorney,” White explained. “Federal criminal trials are complex, formal and full of pitfalls. Avenatti’s courtroom experience can only take him so far.”

White noted that whenever a defendant is also the lawyer, there is a risk of alienating the jury.

“The lawyer has to cross-examine hard sometimes, and be skeptical of witnesses in a way that can come off as particularly obnoxious if the lawyer is the person accused of stealing from the witness,” White said. “It’s also a spectacle, trends towards chaos, and will be a serious strain on Avenatti’s limited ability to behave himself when accused of things.”

White’s prediction seemed to also weigh on Selna’s mind when the judge asked Avenatti if he felt he might be too emotionally involved in his own case to handle the trial. Avenatti said he understood the risks, but that he had regularly behaved appropriately in other courtrooms when he tried cases.

Neama Rahmani, a former federal prosecutor now with West Coast Trial Lawyers, agreed that Avenatti was making a big mistake.

“This is going to end badly for him. As prosecutors, we call this ‘a slow guilty plea,’ because essentially, it’s not something you really can defend on the merits,” Rahmani said. “There’s no real argument that you want to preserve for appeal. You will absolutely be convicted, and it’s just a matter of time.”