Clever move by defense pays off

Did Debra Hoffman just secure the first “get-out-of-jail-free” card in the Mike Carona corruption trial?

Too soon to tell, but she did a nice Cheshire Cat impression Tuesday afternoon after vacating the defense table for the first time since the trial began in late October. Any why not? The moment she passed by Carona and gave him a smiling “Hey, what can I say?” look, she went from defendant to courtroom spectator.

Minutes earlier, U.S. District Judge Andrew Guilford ruled that she was entitled to a separate trial from Carona at some unspecified date.

Mindful of what her sudden disappearance might mean to jurors waiting to be summoned back to the courtroom, Guilford asked both teams of attorneys, “How should we orchestrate the farewell to Ms. Hoffman?”

Hoffman’s attorney, Sylvia Guillen-Torres, suggested that he tell them charges had been dropped. Carona defense attorney Jeffrey Rawitch said, “A small cocktail party?” The two government attorneys weren’t nearly as jocular.

It’s possible, of course, that Hoffman -- identified by the government as Carona’s former mistress and co-conspirator -- will be retried. It’s possible she’ll be convicted and do some prison time.

But, on this day, you didn’t have to be a legal scholar to know that defense lawyers had snookered the government and pulled off a bloodless coup.

Guillen-Torres, Hoffman’s federal public defender, argued among other things that testimony about details from secretly recorded conversations between Carona, the former Orange County sheriff, and government witness Don Haidl warranted separate trials.

Guilford agreed, even while noting that the defense could have anticipated much earlier the potentially damaging testimony from the tapes and its effect on Hoffman’s case.

Yes, the defense could have done that. And no doubt did. Let’s just say their stratagem probably didn’t come to them in a dream over the weekend.

Surely, the plan to sever Hoffman from the trial -- and basing much of the argument on what was said on the tapes -- was hatched some time ago, right? After all, the defense has known for months what was on the tapes.

I ran my theory past Lawrence Rosenthal, a Chapman University law professor and former federal prosecutor who I’ve occasionally checked in with during the trial.

Bingo, he says.

“It seems quite likely that, at least in this one respect, the defense has out-lawyered the government,” Rosenthal said.

Prosecutors would have known that the tapes could prove problematic in a joint-defendant case, he said, but because the defense didn’t raise the issue of separate trials beforehand, prosecutors didn’t need to address the problem.

“Now it may be that by lying in the weeds,” Rosenthal said, “the defense lulled the prosecution into thinking that it wasn’t going to need to concern itself with that issue.”

And that plan was hatched when? “Unless the defense lawyers are utterly incompetent,” Rosenthal said, “this was a long-simmering strategy. No competent defense lawyer would have missed this severance issue.”

So Hoffman walks, for now. Does it matter that jurors now will see her as a non-defendant? Could Carona also be helped?

“Tomorrow, back in the jury room where you can’t hear,” Rosenthal said, “the only thing they’ll be talking about is why did Debra Hoffman disappear. And why defense lawyers are feeling so good right now is because the jury is probably inferring that the government somehow overreached against Ms. Hoffman. They might even infer she’s been acquitted in some way. Once jurors start losing confidence in the integrity of the prosecution, that can be very damaging.”

In the next breath, Rosenthal added, “In this case, since the tape is so strong, I don’t think Mr. Carona ought to be making reservations for a celebration trip to Antigua. But today was a victory for the defense.”

What irony. Haidl, the government’s key witness and the man who says he bankrolled the alleged conspiracy involving Carona, Hoffman, Carona’s wife and his former top aide, has testified that he was promised a “get-out-of-jail-free card” if he joined the Carona administration.

Has he now, however unwittingly because of his taped conversations with Carona, handed one to Hoffman?

A trial that had begun to lag now has new juicy implications.

A final question for Rosenthal: What’s the likelihood the government will retry Hoffman?

“Among the reasons the defense is celebrating,” Rosenthal said, “is that the government now is going to have to weigh the advisability of not only spending time and money to try this case yet another time, but at a trial with Debra Hoffman alone, she can be free to point the finger at Mike Carona, thereby bolstering her defense.

“That’s called the empty-chair defense. Once you get your severance, you go to trial and blame the empty seat and say this was all dreamed up by Carona.”

Hoffman faces multiple charges, including bankruptcy fraud, so she’s hardly a free woman.

But isn’t it always a good day when you exchange your seat at the defense table for one in the audience?

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