At last, the prosecution rested. Marshall's lawyer, Fred Hafetz, stood to begin taking his turn presenting evidence. Only he declined to do so. With a knowing glance at the jury, Hafetz announced that the defence would call no witnesses.
Today, lawyers for former Trump campaign chairman Paul Manafort made the same announcement.
After days of testimony from prosecution witnesses, the defence team would not be calling any witnesses of its own.
The reaction from the public (at least as expressed on social media) was one of confusion. Why? Was this a sign that Manafort and his lawyers knew that a pardon was coming from US President Donald Trump?
Probably not.
While a pardon could certainly come at some point down the line, the reasoning for not calling witnesses was probably less exotic.
Cases in which the defence doesn't call witnesses are "a minority," explained law professor Robert Weisberg, co-director of the Stanford University Criminal Justice Centre, "but not a tiny minority."
When Hafetz made his announcement in 2009, the primary emotion those of us on the jury felt was relief, as though the pilot had suddenly announced final approach after a particularly bumpy flight.
But Hafetz's point was obvious: No further defence was needed because the prosecution had not made its case. That was the point behind his knowing glance: The prosecution had to prove Marshall guilty beyond a reasonable doubt, and it had failed, so obviously that he didn't need to say anything else.
Remember: For every witness presented by the prosecution - every Kissinger and de la Renta - Hafetz's team (and Morrissey's lawyers) got to cross-examine them, to poke holes in everything that was said.
After Manafort's long-time business partner Rick Gates testified, it's not as though the defence needed to wait until now to poke holes in what he said. It did that as soon as the prosecution's first round of questions was over. The case the defence needs to make is that the prosecution's case isn't proved, and Manafort's lawyers can do that as the prosecution is making its case.
There's some showmanship to it, too, of course. The jury is meant, certainly, to be impressed with the confidence displayed by the defence team: It is so confident that its case has been made!
But there are practical considerations, too.
"Who would the other witnesses be?" Weisberg asked rhetorically. "In very broad terms, you can imagine three kinds of defence witnesses in a criminal case. One would be witnesses who offer testimony that the criminal acts never occurred. Two, witnesses who would testify as to the good character of the defendant. Third, witnesses who say the criminal acts occurred but someone else did them."
In this case, the first type of witness is unlikely because the paper trail for the alleged crimes is so robust, Weisberg noted. In the second case, he pointed out that it's probably a lost cause to convince jurors of Manafort's moral rectitude.
As for the third case, there's some sense that Gates's testimony didn't go very well for the prosecution. Gates had already admitted to making false statements to law enforcement officials, and the defence argued that his testimony against Manafort was meant only to save his own skin. With that having been presented as an argument, why call another witness?
Bear in mind, too, that defence witnesses also get the real-time response of cross-examination. There's a risk to putting any witness on the stand, even beyond the defendant himself.
If Manafort's team put someone up on the stand to testify to some inaccuracy in the prosecution's case, there's no guarantee that they wouldn't somehow slip up or crumble under cross-examination in a way that makes Manafort look worse, not better.
Trials are ostensibly about evidence and the nuances of the law, but they are also specifically about how trustworthy the jury believes witnesses to be. It can be about psychology as much as rationality, and the psychological effects of seeing a witness stammer or waver can be significant.
A piece of evidence is not simply entered into evidence. It is entered into evidence by someone, and that witness can be asked questions about it that undercut the value of even an apparently straightforward document.
In other words, not calling any witnesses is a calculated risk that is not uncommon. Might it have paid off to call witnesses to further rebut the prosecution's case? Sure, it might have. It might also have made things worse. It depends on the available witnesses, to some extent, but mostly on the judgment of the lawyers working for the defense.
Sometimes that bet doesn't pay off. It probably didn't for Hafetz and Marshall. We found Marshall guilty on a number of charges, and he spent several weeks in prison.
