Winning Criminal Cases Where Losing is Not an Acceptable Option

By: Donald V. Watkins

Copyrighted and Published on October 15, 2013 (via Facebook); Updated on February 27, 2024

IMAGE: Former President Donald Trump attends his arraignment in a Manhattan courthouse following his March 2023 indictment on 34 counts relating to "hush money" payments to porn actress Stormy Daniels. April 2023.

An Editorial Opinion

Long before Donald Trump’s first criminal indictment in March 2023, a lot of readers asked me to describe the strategy for winning high-profile criminal cases where losing is NOT an acceptable option.  Here was my strategy for winning such cases when I actively practiced law:

These difficult cases require a different attitude and a non-traditional roadmap to victory. Representing a public scoundrel or celebrity outcast forces the legal advocate to sail against the prevailing winds to reach safe passage and freedom for the accused. The legal knowledge, skills and abilities for this journey are not found in law books and are not taught in law schools. They come solely from a lawyer’s baptism under fire in the courtroom.

The journey to freedom begins by comprehending the full dynamics of the forces being leveraged against the accused. These forces combine to form a complex blend of political, social, and media spin.  This blend, together with the ambitious personal agendas of prosecutors and judges, prejudicially stacks the deck against the outcast defendant.

Prosecutors and judges alike seem to feel obligated to eagerly and frequently dispense a steady stream of lessons to this class of defendants.  

Most criminal defense lawyers are merely technicians, not strategists. You cannot win a high-profile criminal case without a strategist on your defense team. There is no exception to this rule.

A strategist, who may or may not be a lawyer, focuses solely on identifying those human factors necessary to influence twelve ordinary citizens sitting as trial jurors to allow an accused stranger to walk out of the courtroom as a free man or woman, no matter what the prevailing public opinion is, nor how poisonous the atmosphere in the courtroom may be.

Jurors are human beings. They make their ultimate decision based on what seems to be fair and makes common sense to them.  Human emotion and behavior always have a more lasting impact on jurors than courtroom evidence or jury instructions.

A Practical Guide for Winning High-Profile Criminal Cases Where Losing is NOT an Acceptable Option

Favorably impacting human emotion and behavior begins in the court of public opinion. The criminal process and media coverage typically demonize the high-profile defendant. This must be quickly neutralized through a series of steps.  

Netflix presented an abbreviated version of my strategy for winning a high-profile criminal case where losing is not an acceptable option in a May 11, 2020 documentary series titled, "Trial by Media," Episode No. 4 "King Richard."  Here is the full strategy.

First, the accused must be made available and accessible to the media for frank talks about the case. Testifying in the court of public opinion is much easier than testifying in the court of law. While the accused may not win complete vindication in the media, he/she can negate much of the ill-will generated in the sea of hate.

This is the only forum available to the accused where he/she can openly humanize himself/ herself. This forum is also the first place where his/her advocate can effectively undermine the government’s theory of the case, attack the government witnesses, and criticize prosecutors, law enforcement officials, and others working in concert with them. Prosecutors and judges are very limited in what they can say and do in the court of public opinion.

There are no evidentiary or procedural rules in the court of public opinion. This works to the benefit of the accused. In this court, the outcast has the most advantages. He/she must use them or risk losing them.

Second, victory for the outcast defendant only comes when the defense puts the government under the glaring light of a public microscope. The government will always look worse under the microscope than any outcast defendant.

Americans know that their government will mislead them, lie to them, abuse its power, act in the political interests of high-ranking political officials, and mistreat ordinary citizens. Officials often bend the rules and frequently cheat to win in high-profile cases. Exposing this nasty government underbelly will propel the accused along the long road to victory.

Third, defense counsel must exploit the obvious targets of opportunity in the government’s case. For example, prosecutors must cut disgusting deals with unsavory characters. These people eventually become cooperating government witnesses. The question is never whether these witnesses are lying, but how many lies they have told and to whom they have told them.

Openly count the lies in front of the trial jury. I always started the count with the question, “Have you ever lied to anybody about anything?” The answer is always, “Yes." It is easy to get this type of witness to admit to a pattern and practice of lying to a variety of people about material aspects of the case on hundreds of occasions (which I would always depicted on a flip chart in front of the jury). Once the witness establishes his/her solid credentials as an accomplished liar, nothing else they have to say matters.

Fourth, contrary to what they say publicly, prosecutors always shape their case strategy and evidence to get the man or woman at the top of an organization. The skilled advocate must demonstrate how they target people, not crimes. This demonstration requires more courage than brainpower.

Fifth, audio and video evidence will always be more beneficial to the accused than the government. These recordings are always selective and never complete. Simply focus on what is not recorded and why. Incomplete recordings are akin to books with missing pages or chapters. They have little real value to the reader within this context.

Sixth, FBI interview techniques are a goldmine for a criminal defendant. Jurors are usually shocked when they learn that the FBI does not tape record its interviews with witnesses. Instead, the FBI relies upon agents to make notes (called “302” statements) that are not shared with the witness at the conclusion of the interview, meaning the witness cannot ensure their accuracy.

Over time, the agent’s 302 notes tend to mutate in the government’s favor, especially in cases where there are multiple interviews with the same witness.

Seventh, the cozy relationship between prosecutors and trial judges is compounded by their political ties to high-ranking public officials, which ultimately provides enough fertile ground for questioning the integrity of any case when properly developed first in the media.

Eighth, the best defense is always a relentless offense. The accused must start this offense as soon as he/she is the target of a criminal investigation. The accused must go public first, fast and hard. He/she must convey his or her side of the story in the court of public opinion. He/she must make the government the enemy by exposing everything he or she knows about the investigation and questioning its legitimacy.

Prosecutors have little experience in playing defense in the court of public opinion. Remember, this is a campaign for the accused’s freedom. This campaign is a long and hard process, not a one-time press conference where the defendant’s lawyer simply denies the charges after an indictment is announced.

Ninth, the outcast defendant must use the media to define his or her humanity - it is important that the public to knows the accused on a personal level. Who is the private person? Everybody knows the public persona; after all, PR experts carefully crafted this public image over many years.

Define the accused’s personal value system, people skills, circle of family and true friends (who may not be rich and well-known), and acts of kindness (not tax-deductible charity) to ordinary people. Downplay charitable acts and foundation giving for privileged groups like the arts community, opera, symphony, zoo, botanical gardens, and museums. Highlight examples of kindness where money was not the lynchpin for support and generosity.

Finally, the accused should spend no time worrying about his/her social or professional redemption. It will not occur, even when he/she is acquitted. The sole focus must be on freedom. It is the only outcome that matters.

Epilogue

Of course, the successful implementation of my Guide for winning high-profile criminal cases where losing is not an acceptable option depends upon the accused having a trial judge who is NOT on the take or is not otherwise compromised. 

Today, the scales of justice are rarely balanced.  What is more, a growing number of state and federal judges have zero integrity or respect for the law.  Many of them are nothing more than “political whores” who will gladly railroad an accused person in a “rigged” courtroom trial.

That said, many judges will still give an outcast defendant a fair shot at winning his/her case.