Issue 326
March 4, 2005

INDEX

Articles

q The Ten Commandments Reach the Supreme Court by Linda Greenhouse

q Fear Rules In Russia’s Courtrooms by Peter Finn

q U.S. Must Charge Padilla With Crime or Release Him by R. Jeffrey Smith

q Ebbers May Testify. But Should He? by Ken Belson

q Ebbers Mounts an ‘I Never Knew’ Defense by Ken Belson

q Judge in Jackson Case Assures There Is Order in His Court by John M. Broder

q Martha Stewart and the Pros of Being a Con by Tina Brown

q Bryant and His Accuser Settle Civil Assault Case by Steve Henson

The following article appeared on nytimes.com on February 28, 2005:

The Ten Commandments Reach the Supreme Court

By Linda Greenhouse

WASHINGTON, Feb. 27 - One federal court upheld them as a symbol of the country's devotion to its legal heritage. Another federal court ordered them removed as an illicit message of religious endorsement. Fifteen months ago, Alabama's chief justice lost his job over them, and the two-ton granite monument that once sat in the rotunda of the state

courthouse is now the star of a national tour. The profile of the Ten Commandments, it seems, has rarely been higher, or their ability to attract lawsuits greater.

Now, as with all great controversies in American life, this one has finally reached the Supreme Court. In two cases to be argued on Wednesday, the basic question for the justices will be: what does it mean for the government to display a copy of the Ten Commandments?

To those who seek removal of the displays - a six-foot red granite monument that has sat since 1961 on the grounds of the Texas Capitol, and framed copies of the Ten Commandments that were hung five years ago on the walls of two Kentucky courthouses - the meaning is as obvious as it is impermissibly sectarian.

"There is no secular purpose in placing on government property a monument declaring 'I am the Lord thy God,' " Prof. Erwin Chemerinsky of Duke University Law School wrote in his brief for Thomas Van Orden, an Austin resident who has so far been unsuccessful in his challenge to the Texas monument. It is one of thousands placed around the country in the 1950's and 1960's by the Fraternal Order of Eagles with the support of Cecil B.

DeMille, the director, who was promoting his movie "The Ten Commandments."

"The government is not supposed to be for religion or against religion," Douglas Laycock, a professor and associate dean at the University of Texas School of Law, said in a discussion of the cases here on Thursday sponsored by the Pew Forum on Religion and Public Life. "You don't put up a sign you disagree with, and the government doesn't disagree with these."

At the same event, Jay Sekulow, chief counsel of the American Center for Law and Justice, a law firm established by the Rev. Pat Robertson that litigates for evangelicals and other religious communities, offered a different perspective. The Ten Commandments have acquired secular as well as religious meaning, he said, and have come to be "uniquely symbolic of law."

Mr. Sekulow noted that the marble frieze in the courtroom of the Supreme Court Building itself depicts Moses, holding the tablets, in a procession of "great lawgivers of history." (The 17 other figures in the frieze include Hammurabi, Confucius, Justinian, Napoleon, Chief Justice John Marshall and Muhammad, who holds the Koran.) "Does the Supreme Court now issue an opinion that requires a sandblaster to come in? I think not," Mr. Sekulow said.

The Bush administration, which has filed briefs urging the justices to uphold the displays in both cases, takes the same approach, calling the Ten Commandments "a uniquely potent and commonly recognized symbol of the law."

Professor Laycock, who filed a brief on behalf of the Baptist Joint Committee against the display in the Texas case, Van Orden v. Perry, No. 03-1500, disparaged as "sham litigation" the effort to depict the Commandments as anything other than profoundly religious. To defend the Commandments as a historical or legal document is "to desacralize a sacred text, to rip it out of context and distort its meaning and significance,"

he said. "It ought to be unconvincing to people outside the religious tradition and insulting to those within it."

The debate over the Ten Commandments is reminiscent of the debate before the court a year ago over the phrase "under God" in the Pledge of Allegiance, which an atheist from California, Michael A. Newdow, challenged as an unconstitutional establishment of religion and the Bush administration defended as a historical reflection of the country's

spiritual roots. The court never resolved the issue, eventually dismissing the case on the ground that Dr. Newdow had lacked standing to bring it.

The Pledge case nonetheless drew an illuminating separate opinion from Justice Sandra Day O'Connor, who has often cast the deciding vote in religion cases. She called the words "under God" an example of "ceremonial deism," which she defined as the use of religious idiom for "essentially secular purposes" that does not offend the Constitution.

Whether Justice O'Connor will take a similar view of the Ten Commandments is anyone's guess. On the one hand, the Commandments contain not two words but approximately 120, closer to the 100-word high school graduation prayer that Justice O'Connor found unconstitutional in a 1992 case.

On the other hand, while the Pledge is recited each morning in public school classrooms, creating a powerful government message that is difficult to ignore even for those children who exercise their constitutional right not to participate, the Ten Commandments stand mute. People who do not feel drawn to a monument or framed depiction can avert their eyes and walk on by.

Clearly, context matters, although exactly how it matters is open to debate, as the Kentucky case, McCreary County v. A.C.L.U. of Kentucky, No. 03-1693, demonstrates. The case began in 1999, when the American Civil Liberties Union challenged the display of the Ten Commandments, hanging unadorned in solitary frames in the McCreary County and Pulaski County Courthouses.

The counties quickly modified the displays to include the texts of the Declaration of Independence, the Mayflower Compact, "The Star-Spangled Banner," the Bill of Rights, and several other images that the counties named, collectively, the "foundations of American law and government."

Nonetheless, the federal district court in London, Ky., ordered the entire display removed, and the United States Court of Appeals for the Sixth Circuit, in Cincinnati, agreed. It held that the "foundations" documents as a collective retained the "unconstitutional taint" of the original, solitary Ten Commandments display.

The counties' lawyers at Liberty Counsel, a Florida-based organization affiliated with Liberty University, whose chancellor is the Rev. Jerry Falwell, object in their brief that "no reasonable observer would consider the Foundations Display an endorsement of religion."

In the Texas case, the United States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the Texas monument on essentially that basis, finding that "a reasonable viewer touring the Capitol and its grounds" would find a predominantly secular rather than religious message in the Ten Commandments, one of 17 monuments in a 22-acre park that carries a designation as a national historic landmark.

One question is whether the court will try to derive a broad principle from the pair of cases or whether it will stress the distinct facts of each. Another question is the standard for judging governmental displays with religious content. Justice O'Connor has long advocated an "endorsement" test: does the government appear to be endorsing religion to

the extent that a nonbeliever would be made to feel an outsider?

Other touchstones for the court's analysis in such cases include an evaluation of "purpose," "effect," and - sometimes present but never acknowledged - politics. "Supreme Court Strikes Down Ten Commandments" is a headline that few Supreme Court justices want to read.

The following article appeared on washingtonpost.com on February 27, 2005:

Fear Rules In Russia's Courtrooms

Judges Who Acquit Forced Off Bench

By Peter Finn

Washington Post Foreign Service

MOSCOW -- The case before Judge Alexander Melikov involved a juvenile from Tajikistan who had gotten into a shoving match with a co-worker outside a train station in July 2003. The juvenile had allegedly thrown a beer bottle at the other man, but missed, according to court documents. The juvenile was charged with hooliganism.

In court, the victim said he forgave the young Tajik, who had no previous criminal record, and asked Melikov to be lenient. The judge gave the juvenile a four-year suspended sentence with three years of probation.

Prosecutors did not appeal.

But the sentence helped get Melikov stripped of his judgeship in December, when he was brought before a judicial disciplinary body called the Qualification Collegium. The judge was charged with 22 counts of "neglecting the interests of justice, belittling the reputation of judicial power, and undermining the people's trust in the judicial system." In the case of the Tajik, Melikov's superior, Olga Yegorova, accused him of giving only suspended sentences to foreigners who had committed "grave crimes."

Concerns about the independence of Russia's justice system have recently focused on high-profile cases such as the prosecution of Mikhail Khodorkovsky, an oil baron, and a series of treason trials involving Russian scholars. President Bush raised the issue of the rule of law as it relates to the quality of Russian democracy during his summit with President Vladimir Putin this past week.

The Melikov case illustrates how a climate of fear generally pervades the bench in Russian criminal courts. Judges are targeted for forced retirement or dismissal if they apply the law to acquit even everyday defendants, issue sentences that are seen as too lenient by court chairmen or fail to follow prosecution requests to send suspects to overcrowded pretrial prisons where they can languish for months, according to judges, law professors and lawyers. The climate reflects the growing power of the state in Putin's Russia.

"Between 2001 and May 2004, I considered 460 criminal cases involving 544 individuals, and only four of my verdicts were overturned by higher courts," said Melikov, 42, who was also criticized for suspending sentences and dropping charges when the parties reconciled.

A detailed review of Melikov's work by three experts commissioned by the Russia-based Independent Council of Legal Experts found that his rulings, with one minor exception from a case in 1998, followed Russian law.

"The decisions of Alexander Melikov . . . are in line with the criminal and criminal-procedure law," wrote Polina Lupinskaya, head of the Criminal Procedure Department at Moscow State Law Academy. The charges against him were "groundless," she wrote, noting that treating foreigners such as the Tajik differently violates the Russian constitution.

In 2002, Russia adopted a code of criminal procedure that was supposed to herald a legal revolution by firmly establishing the independence of the judiciary, increasing the rights of the accused, and forcing firm rules of procedure and evidence on police and prosecutors. But the current system continues to perpetuate the Soviet practice of almost automatically convicting everyone who appears in court.

The same year, a separate criminal justice reform was supposed to enshrine the presumption of innocence and usher in democratic legal norms that were widely praised at the time. Among its provisions, defendants are entitled to ask for a lawyer when detained and are supposed to be brought before a judge within 48 hours. Judges, not prosecutors, are to issue an arrest warrant and order the accused to be held in a pretrial prison or to be freed pending trial. Defense lawyers are to have greater powers to challenge evidence in court.

According to legal scholars, efforts to bring about change have stalled. The goal of breaking old habits and creating a system in which judges act as independent arbiters between the state and the individual, has not been met yet.

"We are still living with an ideology of the past, and we haven't created a new legal culture," said Sergei Vitsin, a professor of law and deputy chair of the Presidential Council on the Reform of the Justice System. "Judges do not see themselves as in any way separate from prosecutors and police. You can write democratic laws, but you have to follow them, too."

The chairman of the Russian Supreme Court, Vyacheslav Lebedev, contested the view that judicial reforms were failing and that judges were cowed by their superiors.

"Some people say, 'Look what the court chairmen are doing, they terrorize disagreeable judges,' " Lebedev said in an interview on Russia's NTV channel this month. " . . . This is all wrong."

Public confidence in the justice system remains low. Dmitri Kozak, a presidential adviser who spearheaded judicial reform efforts for Putin, acknowledged in a recent speech to judges that Russians believe that "truth is impossible to find" in the system.

In Russia, the conviction rate in criminal cases heard by judges is around 99

percent, according to the administrative arm of the country's Supreme Court. The

rate has persisted since the early 1950s, the last years of the Soviet dictator Joseph Stalin, when the work of judges and prosecutors was automatically reviewed if a defendant was acquitted. Before 1951, about 10 percent of defendants were acquitted in non-political trials, according to Sergei Pashin, a former judge and a professor at the Moscow Institute of Economy, Politics and Law.

In some courts, there simply are no acquittals. In 2003 and in the first nine months of 2004, two district courts in Moscow that heard a total of 4,428 criminal cases had no acquittals, according to court records. Officials at the courts declined to comment on the statistics. In the regional court in the southern Russian city Krasnodar, no one has been acquitted in the last 10 years in cases heard by judges, court officials said.

"Judges think of themselves as soldiers in the front line fighting crime," said Sergei Tsirkun, who was a prosecutor in Moscow for 10 years and in that time never lost a case. "A judge is not going to pass an acquittal unless he is absolutely, 100 percent confident that someone is innocent. If he has the slightest suspicion that someone might be guilty, he will find them guilty even if he has to ignore problems with the evidence."

In jury trials, which were introduced in 1993 in nine regions and expanded nationwide in 2003, a defendant is more likely to be found not guilty, with acquittal rates of around 15 percent, according to Supreme Court statistics. In Krasnodar, for instance, where judges find everyone brought before them guilty, juries find 20 percent of defendants not guilty.

"At least a jury trial cannot be compared to the nightmare of an ordinary trial before a judge," said Sergei Nasonov, a professor of criminal law at the Moscow State Law Academy who has written a book on jury trials in Russia. "In a jury trial there is hope for justice and there is no hope in an ordinary trial."

But jury trials represent about 8 percent of all criminal trials, and acquittals are often appealed, overturned by the Supreme Court and sent back for retrial with a fresh jury, according to law professors and defense lawyers. In some cases, prosecutors obtain a guilty verdict after two or three jury acquittals.

Moreover, there is increasing suspicion that the selection of jurors, particularly in sensitive cases, is not always random, as required by law, according to Nasonov and other legal experts.

Judge Melikov, a veteran of the Russian invasion of Afghanistan, worked as a criminal investigator for the Interior Ministry before becoming a judge in 1997. He received lifetime tenure in 2000. Melikov said he first knew he was in trouble with his superiors in late 2002, a few months after the introduction of the new criminal code, when he refused to issue an arrest warrant for a robbery suspect because the police had failed to follow new procedures.

At a meeting of judges, Melikov said, their superior, Yegorova, publicly criticized him. Yegorova, who is head of the Moscow City Court, said at the gathering that judges should automatically issue arrest warrants, Melikov said.

Yegorova, who did not respond to a faxed request for an interview, was appointed in 1999 by the Kremlin over the objections of some senior city and federal judges, including Lebedev, the chairman of the Supreme Court, according to Russian media reports quoting a letter from him.

Yegorova, the wife of a general in the FSB, the domestic successor to the KGB, has been accused of pressuring subordinates in certain cases and not tolerating acquittals or lenient verdicts. In her first year in office, 17 judges resigned from the Moscow City Court, most from the criminal courts, according to the Independent Council of Legal Experts.

"We all left because of this atmosphere, which Yegorova created," said Viktor Kononenko, who retired as a judge from the Moscow City Court in 2001. "She wouldn't accept our methods of work. People with whom I worked, some very experienced, were told to move cases along quickly without observing the legal norms. We weren't judged on the quality of justice in our courtrooms."

Melikov decided to fight when the judicial authorities sought to remove him and 12 other judges in 2004; most of the targeted judges retired. Melikov said he was offered a resignation package that would have entitled him to retain his pension.

In the hearing before the judicial disciplinary body, Melikov argued his case for about three hours, saying that in some cases, his allegedly poor decisions were not contested by prosecutors or were upheld by the Supreme Court, information Yegorova omitted in her motion.

But the disciplinary body took less than five minutes to find for Yegorova and remove Melikov from the bench.

This past week, Melikov began his appeal, which could take several weeks to complete. It is being heard in the Moscow City Court, which is headed by Yegorova.

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The following article appeared in washingtonpost.com on March 1, 2005:

U.S. Must Charge Padilla With Crime or Release Him

By R. Jeffrey Smith

Washington Post Staff Writer

A federal judge in South Carolina ruled yesterday that the Bush administration lacks statutory and constitutional authority to indefinitely imprison without criminal charges a U.S. citizen who was designated an "enemy combatant."

Rejecting a series of arguments put forward by the government, District Court Judge Henry F. Floyd said the indefinite detention of Jose Padilla -- who the administration has said is a terrorist supporter of al Qaeda -- is illegal and that Padilla must be released from a naval brig in Charleston, S.C., within 45 days or charged with a crime.

In a strongly worded 23-page ruling, Floyd said "to do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and our individual liberties."

Floyd said he was not persuaded by key arguments put forward by the administration to justify its assertion that foreigners and Americans alike who are designated "enemy combatants" by the president can be detained without trial or some other form of judicial review.

Using a phrase often levied by conservatives to denigrate liberal judges, Floyd -- who was appointed by President Bush to the federal bench in 2003 -- accused the administration of engaging in "judicial activism" when it asserted in court pleadings that Bush has blanket authority under the Constitution to detain Americans on U.S. soil who are suspected of taking or planning actions against the country.

Floyd said the government presented no law supporting this contention and that just because Bush and his appointees say Padilla's detention was consistent with U.S. laws and the president's war powers, that did not make it so. "Moreover, such a statement is deeply troubling. If such a position were ever adopted by the courts, it would totally eviscerate the limits placed on Presidential authority to protect the citizenry's individual liberties."

This is the second time the government's handling of Padilla has been repudiated in federal court. In December 2003, a federal appeals court in New York also held that Bush lacked authority to hold Padilla in a military brig and ordered him released. But the Justice Department appealed the decision, and the Supreme Court ruled in June 2004 that Padilla's petition for release should have been processed in federal court in South Carolina, not New York.

The decision yesterday, which the government has vowed to appeal, was the shoe that dropped again. One of Padilla's attorneys, Donna Newman, said the "court ruled that the president does not have the power to seize an American citizen on American soil and hold him indefinitely without a charge. That shouldn't be big news, but it is. . . . It confirms our belief that the Constitution is alive and well and kicking. The system works."

Padilla, 34, was monitored by the FBI on a flight from Pakistan to Chicago's O'Hare airport in May 2002 and arrested on a warrant describing him as a material witness to an ongoing terrorism investigation. After being questioned by investigators in New York and demanding a lawyer, he was officially designated by Bush as an enemy combatant and taken to the brig, where he has been for the past 32 months.

U.S. officials contended that Padilla was scouting sites to detonate a bomb that would release radioactive particles; they also said he had met with senior al Qaeda officials and would pose a grave threat to the country if released.

Floyd's ruling did not address the merits of these assertions; it merely concluded that the government faced "no impediments whatsoever" to trying Padilla on these charges in a civilian court.

In seeking to avoid that course, the Justice Department cited a June 2004 ruling by the Supreme Court upholding the military's detention of another designated enemy combatant, Yaser Esam Hamdi. But Floyd said the two cases were distinct, because Hamdi was arrested in Afghanistan while carrying a weapon and Padilla was captured on U.S. soil in civilian garb.

A government assertion that Padilla was not "in" the United States because he was arrested at an airport was fatally flawed, Floyd said. He also dismissed an administration contention that Padilla's circumstances were akin to the capture and detention of German saboteurs -- including at least one U.S. citizen -- on U.S. soil in World War II.

A Supreme Court decision in that case, Floyd said, involved whether they would be tried in a military or civilian court; the Padilla case "is concerned with whether [he] . . . is going to be charged and tried at all."

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The following article appeared on nytimes.com on February 27, 2005:

Ebbers May Testify. But Should He?

By Ken Belson

IT is perhaps the toughest decision a defense lawyer has to make: whether to put a client on the stand. In their hearts, lawyers want to let their clients tell the jury their side of the story. Yet by testifying, the defendant risks making a damning admission or a crippling display of arrogance under cross-examination.

There is no hard rule for lawyers in these cases. Martha Stewart, the entrepreneur, did not take the stand and was convicted. Frank P. Quattrone, the former Credit Suisse First Boston banker, did testify in his defense and was convicted, too. John Walker, an executive at Qwest Communications, took the stand last year and was acquitted.

As the country winds its way through the current crop of corporate corruption trials, lawyers for other defendants - notably Richard M. Scrushy of HealthSouth, now on trial in Birmingham, Ala., accused of fraud, and Kenneth L. Lay of Enron, who is scheduled to be tried next year, accused of fraud and conspiracy - must weigh the risks and rewards

of asking their clients to testify.

Yet the most vivid - and urgent - illustration of the quandary facing defense lawyers is on display in the government's case against Bernard J. Ebbers, the former chief executive of WorldCom, who is on trial now in Federal District Court in Manhattan, accused of orchestrating an $11 billion fraud that toppled his company. That is because the crux of the case comes down to the testimony of one witness, Scott D. Sullivan, WorldCom's former chief financial officer.

During his two weeks on the stand, Mr. Sullivan said he told Mr. Ebbers several times that if WorldCom did not lower its forecasts to more realistic levels, the only way to meet its targets would be to inflate revenue falsely and hide growing expenses.

"I told Bernie, 'This isn't right,' " Mr. Sullivan said, referring to the hidden expenses.

Mr. Sullivan said Mr. Ebbers replied, "We have to hit our numbers," which he interpreted as an order to make the illegal changes.

Yet after five weeks of testimony, Mr. Sullivan is still the only person to say he spoke directly to Mr. Ebbers about the fraud. Prosecutors have not produced other documents or witnesses who could conclusively corroborate Mr. Sullivan's testimony that Mr. Ebbers ordered the accounting changes.

Defense lawyers have highlighted that no one else was present when Mr. Sullivan and Mr. Ebbers supposedly had their fateful meetings. They have also raised questions about why Mr. Sullivan - who said in 2002 that Mr. Ebbers did not know about the fraud - is now testifying against his former boss.

Mr. Sullivan has since pleaded guilty to committing fraud and faces 25 years in jail. He is cooperating with the government in hopes of receiving a reduced sentence.

The big question for Mr. Ebbers's defense team is whether its attacks on Mr. Sullivan have raised enough doubt in the jurors' minds about his story, or whether Mr. Ebbers still needs to tell his version of the events to rebut Mr. Sullivan's testimony. As of Friday night, the defense appeared to think that Mr. Ebbers's testimony was needed to assure his

acquittal.

One of Mr. Ebbers's defense lawyers, Brian M. Heberlig of Steptoe & Johnson, told Federal District Judge Barbara S. Jones on Friday that there was a "very high probability" that Mr. Ebbers would testify on his own behalf as soon as Monday.

A decision to have Mr. Ebbers testify would confound the expectations of many legal experts. Before news that he was likely to testify began to circulate, the consensus was that Reid Weingarten, Mr. Ebbers's lead lawyer, should focus on poking holes in the prosecution's case and shredding Mr. Sullivan's credibility. By putting their client on the

stand, the defense lawyers would take the focus off of Mr. Sullivan's believability and put it on Mr. Ebbers's testimony.

"Any good defense attorney will do his best to have his client not testify," said Jason Brown, a former federal prosecutor who is now a securities lawyer in the New York office of Holland & Knight. "The defense would rather concentrate on weaknesses in the government's case."

Mr. Brown added that it would take a lot to persuade him to put Mr. Ebbers on the stand because the most damaging evidence - Mr. Sullivan's testimony - is uncorroborated and Mr. Sullivan has a clear motivation for testifying against his old boss.

But Mr. Weingarten may have lingering doubts about whether he has done enough to damage Mr. Sullivan's credibility. While the defense has to convince the jury only that the government has not proved its case beyond a reasonable doubt, trying to read the jury's mind is difficult.

"The defense team has to make the judgment call whether or not the jury believes Sullivan's story about his conversations with Ebbers," said Timothy E. Hoeffner, a lawyer at Saul Ewing, a law firm in Philadelphia.

During his week of direct testimony, Mr. Sullivan was a compelling and calm witness who spoke in great detail and appeared to show remorse for his crimes. After slumping through most of the trial, the jurors appeared to awaken when he was on the stand. In two days of cross-examination, Mr. Sullivan did not contradict his earlier testimony.

Still, putting Mr. Ebbers on the stand could backfire. For now, the defense has been able to argue that Mr. Ebbers had a number of plausible reasons for not knowing about the fraud, both by introducing direct testimony and through suggestion.

The defense has tried to portray Mr. Ebbers as a chief executive who was more of a strategist than an accountant, and someone who left financial details to Mr. Sullivan. They have also tried to show that Mr. Ebbers was incapable of understanding the details of Mr. Sullivan's elaborate fraud.

Mr. Weingarten, in his opening statements, also said that by 2000, Mr. Ebbers was trying to reduce his role at the company and effectively gave day-to-day control of WorldCom to Mr. Sullivan and Ron Beaumont, another company executive.

If Mr. Ebbers takes the stand, prosecutors will undoubtedly press him to provide more specifics about what he was actually doing day to day and will look for inconsistencies in his story. They are also allowed to introduce any new, potentially damaging evidence they might have.

"If the defendant doesn't take the stand, you can argue your point using inferences," said Michael B. Himmel, chairman of the white-collar criminal defense practice at Lowenstein Sandler, a law firm based in Roseland, N.J. “But if Ebbers takes the stand, you can be sure the government will home in on him during cross-examination."

Mr. Ebbers would undoubtedly prepare for an appearance on the stand. But defendants, Mr. Himmel said, "sometimes crumble" when they actually have to testify. "You never can tell," he said.

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The following article appeared on nytimes.com on March 1, 2005:

Ebbers Mounts an 'I Never Knew' Defense

By Ken Belson

Bernard J. Ebbers, the former WorldCom chief executive once hailed as one of the most brilliant telecommunications entrepreneurs ever, told a packed courtroom yesterday, "I don't know about technology and I don't know about finance and accounting."

In taking the stand in his own defense, Mr. Ebbers displayed a folksy innocence that was part of the defense's effort to cast him as someone who relied on others with greater expertise to handle the details of running WorldCom as it grew from a small regional reseller of phone services to one of the largest companies in American industry. Under questioning by his lawyer, Reid Weingarten, Mr. Ebbers also disputed the prosecution's

star witness, Scott D. Sullivan, WorldCom's former chief financial officer, who testified that Mr. Ebbers directed the fraud. Mr. Ebbers said over and over that Mr. Sullivan never told him that his accounting changes "weren't right" and that he did not recall conversations that Mr. Sullivan said they had.

"He has never told me he made an entry that wasn't right," Mr. Ebbers said. "If he had, we wouldn't be here today."

Mr. Ebbers also said he was ignorant about accounting in general. "I know what I don't know," he said, referring to his lack of understanding of the technology WorldCom sold as well as its finances.

He testified that he did poorly in college, where his "marks weren't too good," and that he bounced from one job to another, working as a milkman, basketball coach and warehouse manager, before he and a small group of investors started the predecessor of WorldCom in 1983.

Prosecutors contend that Mr. Ebbers orchestrated an elaborate $11 billion fraud that led to the biggest corporate bankruptcy in history and toppled the company.

Mr. Ebbers, who is accused of fraud, conspiracy and filing false financial reports, said that he was "shocked" when he heard in June 2002 that an internal auditor had unearthed billions of dollars in buried expenses. "I never thought anything like that had gone on," he said. "I put those people in place, and I trusted those people. I had no earthly idea that

that would occur."

Mr. Ebbers's contention that he knew little about the daily running of the company's finances stands in contrast to his uncanny ability to win the confidence of Wall Street and investors in his drive to expand the company in the 1990's. Prosecutors have tried to show that he was intimately involved in the company from its beginnings as a tiny reseller of long-distance phone service based in Mississippi, and that he was also at the center of dozens of acquisitions that turned his company into a telecommunications behemoth.

In the trial, prosecutors showed television and audio interviews of Mr. Ebbers speaking knowledgeably to investors about the company's financial forecasts and saying that WorldCom's accounting was sound.

Now, facing 25 years in prison, Mr. Ebbers, 63, said his role was largely that of coach. He said his main job was to motivate the sales and marketing team.

"I focused on the area I thought I could handle," he added, referring to his role managing the sales force.

Mr. Ebbers recounted visiting the headquarters of BP Amoco in London as part of a team making a sales presentation. It was there, he said, that he realized he could no longer understand the technology his company was selling.

"To be honest with you, it was embarrassing," Mr. Ebbers said on the stand.

In painting the picture of an earnest man aware of his limitations, the defense has tried to show that Mr. Ebbers relied on financial experts and was unaware when they started hiding billions of dollars in expenses to mask the company's deteriorating condition.

Mr. Ebbers is not the only fallen corporate titan who - after being paid hundreds of millions of dollars to run a multibillion-dollar company - has fallen back on the legal defense that he was in the dark and too unsophisticated to know what was happening.

Richard M. Scrushy, the former head of HealthSouth on trial on fraud charges in Birmingham, Ala., has adopted a similar defense. Kenneth L. Lay, the former chairman of Enron, is expected to use that defense when his trial begins next year.

The prosecutors, at the start of their cross-examination of Mr. Ebbers, which began late yesterday afternoon, tried to take some of the gloss off the defense's portrait.

In more than an hour of questioning, David B. Anders, an assistant United States attorney, peppered Mr. Ebbers about his leadership role at WorldCom. Mr. Ebbers answered most of the questions by saying that he was only part of a team and that decisions at WorldCom were not based on his whims or dictates.

But at times, Mr. Ebbers appeared to lose patience with some of the questions. Asked about accounting events more than a decade ago, Mr. Ebbers snapped: "I have no recollection of what we did in 1992. Why, that was 13 years ago." Another time, he folded his arms as if in defiance.

Mr. Ebbers's reaction to the prosecutor's questions might be interpreted by the jury negatively and shows one danger in letting defendants take the stand. In most criminal trials, taking the stand in one's own defense is risky because it allows the prosecution to introduce other potentially damaging evidence. But Mr. Ebbers took the gamble because so much of the prosecution case rests largely on the uncorroborated testimony of Mr.

Sullivan.

In his seven days of testimony, Mr. Sullivan said he told Mr. Ebbers repeatedly about WorldCom's deteriorating finances and how questionable accounting maneuvers could be used to pump up revenue and profits. Mr. Ebbers, he said, ordered him to doctor the company's books.

Mr. Ebbers denied those allegations squarely.

He also said he did not recall whether Mr. Sullivan was at a dinner at Morton's restaurant in Washington in March 2001. According to Mr. Sullivan, it was there that he told Mr. Ebbers about an effort to reclassify some costs as long-term expenses instead of continuing costs - a central element of the fraud case.

At one point, Mr. Ebbers said, "I didn't know there was such a thing as line-cost capitalization," referring to the tactic Mr. Sullivan said he used to hide some expenses.

In addition to countering specific charges that Mr. Ebbers knew about the fraud, Mr. Weingarten also tried to make his client out to be a victim of the company's collapse as well. Mr. Ebbers testified that he never sold any WorldCom stock even though he stood to gain millions of dollars.

Indeed, Mr. Ebbers said he bought three million WorldCom shares even after he was forced to resign in April 2002.

In testimony, Mr. Ebbers said he gave away about $100 million anonymously to colleges and charities, and hoped to set up a foundation for children with special needs.

Mr. Weingarten tried to recast Mr. Ebbers's reputation as a tyrant and a nitpicker. He asked Mr. Ebbers about his widely reported decision to get rid of the free coffee at WorldCom. Prosecutors introduced details about that decision to try to show that Mr. Ebbers was petty and involved in even the smallest details.

Mr. Ebbers said he approved the suggestion, which came from a cost-cutting team.

"I did not ever count coffee filters or coffee bags," Mr. Ebbers said.

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The following article appeared on nytimes.com on February 28, 2005:

Judge in Jackson Case Assures There Is Order in His Court

By John M. Broder

SANTA MARIA, Calif., Feb. 27 - Nobody who knows Judge Rodney S. Melville well was surprised at how crisply the selection of the jury in the Michael Jackson case went last week.

Outside analysts and even some lawyers in the case expected the process to take as long as a month. But under Judge Melville's firm tutelage and strict time limits, the job was completed in barely a week.

Opening statements in the child molesting case against Mr. Jackson are to begin on Monday morning before Judge Melville, 63, the presiding judge of the Santa Barbara Superior Court.

He is known as a demanding courtroom taskmaster who does not tolerate delay, rudeness or challenges to his authority. When Mr. Jackson showed up late for his arraignment early last year, Judge Melville scolded him harshly: "Mr. Jackson, you have started out on the wrong foot with me. I want to advise you that I will not put up with that. It's an insult to the court. You must be on time."

Mr. Jackson has been early for every subsequent appearance.

The judge levied a $1,000 fine on one of Mr. Jackson's lawyers in August when he pursued a line of questioning that the judge had already ruled out of order.

Last week, when he announced that he would hear opening statements on Monday, he warned lawyers on both sides to be prepared to present their cases quickly.

"I will not abide not having witnesses ready," he said.

It is already clear that Mr. Jackson's trial will not be a replay of the 1995 televised trial of O. J. Simpson, which Judge Lance Ito at times seemed powerless to control. Judge Melville is not allowing cameras in his courtroom and has barred all lawyers and witnesses from public discussion of the case.

"I watched part of the O. J. Simpson case, and the contrast between Rod Melville and the judge who handled that case is dramatic," said Royce Lewellen, a retired judge of the Santa Barbara court and a close friend of Judge Melville's. "He would never allow attorneys in his courtroom to get away with some of the things that went on in the O. J. case. It is partly his judicial philosophy and partly his sense of discipline. Don't expect a

lot of continuances or delays in this case."

Judge Melville's penchant for order may arise from a time when his personal life was rather less orderly. He has acknowledged taking his first drink during a Boy Scout trip when he was 11 or 12 years old and quickly beginning a destructive 20-year love affair with alcohol, including drinking and driving in high school, binge drinking in college

and indulging to the point of blacking out as a young lawyer in Santa Maria in the 1970's.

The slight, gray-haired judge gave an account of his alcohol problems in a local public television series, "Faces of Addiction," in 2001. He said that he spent hours after work drinking in bars, rationalizing it as a way of making friends and building up his law practice. After waking up one morning in 1978 with no recollection of the previous night's drinking, he said on the program in a quavering voice, "It struck me I was an

alcoholic."

He sought help from a county alcohol-abuse counselor who steered him to Alcoholics Anonymous, whose meetings he attended every day for three years. He said he had not had a drink since.

Lawyers and county officials who have worked with Judge Melville said that his experience has given him a sense of compassion for those with substance abuse problems. He was instrumental in setting up a court drug diversion program that is considered a model around the state, said Susan J. Gionfriddo, the chief probation officer for Santa Barbara County.

"His own history gives him some insight into the efficacy of treatment if someone is serious about addressing his issues," Ms. Gionfriddo said. "At the same time, he demands a sense of cooperation. If you violate the terms of your agreement, you will be held accountable. He is a very, very, highly principled person who expects a lot in return."

While alcohol- and drug-related crimes represent nearly 80 percent of the cases in the county criminal system, child sexual abuse charges are relatively rare, particularly in the relatively sparsely settled northern part of the county where Judge Melville hears cases, according to Santa Barbara county lawyers and judges.

He shied away from clients accused of child molesting when he was in private practice, said Mr. Lewellen, the retired judge.

"He's quite familiar with that kind of case, and there's no question that he's fair-minded and he understands that child sexual abuse is a terrible thing," Mr. Lewellen said. "But he also knows that there are false accusations made in some cases and there is no way to tell without hearing all the evidence. And even then sometimes you're not sure."

Judge Melville is the son of a preacher and a schoolteacher, born in 1941 in Douglas, Ariz., and raised in San Diego. He served two years in the Navy, serving aboard submarines, and attended San Diego State University and the Hastings College of the Law in San Francisco. He was a prosecutor in San Bernardino and Santa Barbara Counties before opening a private practice in Santa Maria in 1972. He was appointed to the Santa Maria Municipal Court by Gov. George Deukmejian in 1987 and elevated to the Superior Court three years later. Friends describe him as a moderate Republican.

He and his second wife, Vicki Melville, an administrator at a local community college, own a small ranch outside Santa Maria and are accomplished horseback riders. They compete in a sport known as team penning, in which riders on cutting horses separate several horses from a herd and drive them into pens.

They also camp and fish in the Sierra during the summer, often joining Judge Lewellen and his wife on such trips.

Several lawyers and judges in Santa Barbara said that Judge Melville was the ideal choice to handle the Jackson case because of his demand for decorum, his even temper and a strong track record with appellate courts.

"I've appealed a couple of his decisions and haven't had any luck," said Richard P. Weldon, a lawyer in private practice in Santa Maria who has known Judge Melville for 30 years. "He's very rarely reversed."

The judge gave a small insight into his feelings about the Jackson case as jury selection began three weeks ago. Addressing the pool of potential jurors, he confessed to a case of the jitters at presiding over such a closely watched case, saying that not only Mr. Jackson but also the entire American legal system was on trial. He then assured the jurors, the

lawyers and the defendant that he intended to conduct a thorough and fair trial.

"I am not bought and paid for," Judge Melville said. "I have not made up my mind in this case. And I want a jury who feels the same way."

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The following article appeared on washingtonpost.com on March 3, 2005:

Martha Stewart and the Pros of Being a Con

By Tina Brown

The Jail Thing is working so well for Martha Stewart it may become the PR strategy of choice for other public figures who have run afoul of the image police.

Jennifer Lopez didn't have to go to all the trouble of designing a new fashion line, toiling over a new album and rebounding into a doleful marriage to Marc Anthony. She should just have stood up in court and said, "Your Honor, I committed the crime of being on the cover of Us magazine with Ben Affleck 100 times too often. My lips were too shiny. I made horrible movies. For my penalty I accept five months in Alderson jail in West Virginia."

Ditto Bernie Kerik. Why hang around waiting for some fresh embarrassment to surface? Just tell it to a judge: "Your Honor, I milked the 9/11 aura once too often. I shilled for Bush on cable shows past the point where I was bearable. I refused to admit that Homeland Security czar was where my overreach had hit the ceiling. As penance, I will be a stand-up guy and do my 90 days in the image clink."

It used to be that going to jail gave a positive aura only to moral gurus, spiritual leaders and revolutionaries. Gandhi in a British raj prison after the Salt March. Martin Luther King Jr. and the pantheon of civil rights heroes.

Lenin in Siberia. Eugene V. Debs, polling nearly a million votes from his cell in 1920. Vaclav Havel. The ultimate: Nelson Mandela, from breaking rocks in solitary for 27 years to state president and sainted father of his country. But all that was before the Age of Privatization. Now it's vanquished CEOs and burned-out celebrities getting the martyr's halo. The new century's "Letter From Birmingham Jail" could be from Paris Hilton, via her T-Mobile Sidekick.

The useful thing about going down for a few months is it fast-tracks the process of Humbling Up. A spell behind bars can be the equivalent of a visit to the Betty Ford Center for status abuse. The biggest peril of multiple media is multiple resentment. It was never Martha's public that forsook Martha. The women who followed her went on liking her recipes, her products and her domestic advice. That's why, despite three years of the hazing of Martha herself, Martha Stewart Living Omnimedia hung in there when everyone thought it was doomed to go the way of Bon Vivant. Like the Cheshire cat, she was able to disappear, her annoying, controlling personality vanishing from view, leaving only the smile behind.

Martha's offense was a crime of lifestyle for which she's already overpaid. She was just doing what the rest of her set was doing. People don't forgive such people their trespasses; they envy them. How many of us even have the opportunity to abuse executive authority, or manipulate markets? The level of venom Martha experienced was all about how she made every other mini-player in the media firmament feel like a wallflower. Status rage is always the ugliest.

There's a strange lightness now to all the coverage, like the lifting of a curse. As Martha Agonistes she is finally interesting for reasons other than envy. She's been through something the tabloid narrative can agree is "real." Jailed women are the stuff of country-western songs, not Bobby Short doing Cole Porter. All the manic goodwill about her release this week demonstrates the national need for a theater of atonement. It's as if jail time is the only thing that eases the pangs of a culture jealous of its own excess materialism.

You can see why prison might actually be a rejuvenating experience for Martha. Cruelty toward public figures in trouble has gotten so out of hand. No mug shot could be worse than the bleak portrait of Dan Rather in this week's New Yorker. No treachery from the cons inside could be more wounding than the harshly dismissive comments about Rather by Mike Wallace, Don Hewitt, Walter Cronkite and Andy Rooney in Ken Auletta's piece that accompanied it. As for Michael Jackson, three days into the trial it had already degenerated into a Roman bacchanalia of media sadism. "Jacko Is Blubber Boy" ran the New York Post headline yesterday after he wept in court.

Prison can at least shut out all that. Once those big steel gates are locked, they effectively silence the moralizing of the pundits, the gassing of the cable shows, the baying of the blogs, the torment of the tabs. Only the chosen few are on the visiting list and all they are appointed to bring is good cheer.