Legendary litigator Brendan Sullivan, who has been involved in some of the most high-profile cases of the past few decades, ensured his place in Bartlett’s when he quipped at the Iran-Contra hearings: “I’m not a potted plant.”
But despite not being a potted plant, Sullivan was unable to prevail against two of our former colleagues, Michael Martinez and Craig Carpenito, of the U.S. Attorney’s Office in New Jersey. Martinez and Carpenito, a pair of superb young lawyers, were given the daunting task of handling the third trial of former Cendant chairman Walter Forbes. Their triumph over Sullivan and his Williams & Connolly team is chronicled in a fascinating article by Andrew Longstreth in this month’s American Lawyer.
More discussion of the piece, with a few added comments from us, after the jump.
We won’t go into the descriptions of the complex underlying fraud. We’ll stick to the article’s descriptions of the lawyers involved. Like Brendan Sullivan and his partner, Barry Simon:
Sullivan is often silent during pretrial proceedings. According to a story repeated in legal circles, a judge once asked Sullivan about his lack of involvement during a hearing. Sullivan pointed at the jury box and said: “I work when they work.”
Arguing pretrial motions is often the job of his partner, Barry Simon. No taller than 5-foot-8, with a bald head and full beard, Simon is Sullivan’s attack dog. His behavior and arguments can cause judges and opposing counsel to laugh or shake their heads in disbelief-sometimes both. In the North case, according to an account in Jeffrey Toobin’s book, Opening Arguments, one of Simon’s document requests asked the government for “information reflecting” the personal reading habits of staff members in the office of independent counsel. Simon clarified his request by adding that it included “everything from issues of The Washington Post to Playboy to Veil [by Bob Woodward].”
“There are no school yard fights,” says Toobin, who was the junior member on the North prosecution team, about Simon. “Every battle is nuclear warfare. Everything is prosecutorial misconduct.”
This is consistent with what we’ve heard about Simon — who sometimes doesn’t shake hands with opposing counsel because he harbors such strong antipathy towards them.
Some description of Mike Martinez:
Martinez, whose seminary student demeanor belies his supreme confidence, was more formidable than his caseload showed. He had come to the U.S. attorney’s office with a sterling resume: Yale Law School, a couple of years at Simpson Thacher & Bartlett, and a clerkship for Samuel Alito, Jr., who was then a judge with the Third Circuit. In his spare time, Martinez tried to improve his skills by reading published transcripts of trials that featured prominent lawyers, including Edward Bennett Williams, the legendary founder of Williams & Connolly (and Brendan Sullivan’s mentor).
We agree with the characterization of Martinez’s resume as “sterling”; but we question the description of his supposed “seminary student demeanor.” Sure, he has an intellectual bent (not surprising from a Yalie and former Alito clerk); but he has a mischievious and quirky streak too.
Some description of Martinez’s trial teammate, Craig Carpenito:
Craig Carpenito had been an assistant U.S. attorney for just a year and a half. He had arrived from the Securities and Exchange Commission in New York to work on an insider trading case, which he had referred to prosecutors in New Jersey. Carpenito, who sports a goatee and shaved head and looks like an insomniac, is Jersey through and through. He grew up in Monroe Township, went to college at Rider University in Lawrenceville, and graduated from Seton Hall University School of Law in South Orange.
With Martinez and Carpenito working together, the team geared up for battle:
As the October 2005 trial date approached, Martinez was, in Christie’s words, “eerily calm.” Williams & Connolly’s Simon filed a typical onslaught of pretrial motions. But Martinez and Carpenito, with help from Norman Gross, a Camden assistant U.S. attorney whom colleagues routinely describe as brilliant, matched Williams & Connolly brief for brief. “[Martinez] used to laugh about it,” says Christie.
We agree with the description of Norman Gross, a former colleague of ours in the Appeals Division, as “brilliant.” But Norman is wise and savvy as well — a true “go to” person for prosecutors with tricky issues they wanted sound advice on.
This second trial ended with a hung jury as to Walter Forbes. But U.S. Attorney Christopher Christie decided to move forward with a third trial (and received authorization from Main Justice to do so).
Would the third time be a charm? The case was transferred from Judge Alvin Thompson — a well-regarded judge, but
very slow in ruling on matters highly deliberate — to Judge Alan Nevas, known for being “a decisive judge.”
The third trial went much more quickly than the past two — and much better for the government, which called some critical witnesses who weren’t called at the past two trials.
After only 12 days of testimony, closing arguments began on October 26, 2006. Desperation seemed to be the mood on the defense side. Sullivan, who had a wooden demeanor during the trial, suddenly began raising his voice and pounding the desk in front of him. Several times he told the jurors that they had a right to be “disgusted” and “sickened” by the evidence presented against Forbes. “It should be frightening,” said Sullivan about Corigliano’s testimony and the government’s case. “Frightening testimony, that’s what it should be. Because today [it's] him, and then some other time it’s you or our families.”
Sullivan also got emotional when he addressed Forbes’s $17 million asset transfers. Sullivan said the prosecution’s focus on the issue was desperate. “When you have poor-quality evidence, that’s what you do,” he said. “You take a loving act like that, and you make it a crime. You make it stink. You look through dirty glass. That’s what you do. That’s wrong.”
Transferring $17 million in assets to your wife and kids, in the wake of your company’s financial collapse? We should all be so well-loved as the family of Walter Forbes.
Jersey Boys [The American Lawyer]