Accused of Threatening Witnesses, Attorney Takes the Stand to Explain 'Kill' Phrasing

Attorney Takes the Stand to Explain 'Kill' Phrasing

Mark Fass

New York Law Journal

After three decades as a defense attorney, Robert Simels took the stand himself for the first time Tuesday, in order to defend against charges that he plotted with his client, the since-convicted Guyanese drug kingpin Shaheed Khan, to threaten and bribe potential witnesses.

Throughout the week-and-a-half-long trial, Simels' defense has centered on the idea that an attorney must go to extraordinary lengths to investigate a client's case, even when it means -- as in the present case -- pretending to agree with one witness to terrorize others, in the hope of maintaining the relationship or developing new leads.

On Tuesday, Simels, appearing calm and deliberate and looking directly at the jurors throughout his testimony, said that when he talked of the need to "neutralize" or "kill" a witness, as repeatedly heard on tapes of secretly recorded conversations played by the prosecution, he was not suggesting an intent to do harm, but rather to discredit the witnesses' testimony.

"I use [those terms] all the time, and lawyers use them all the time," Simels said. "It's part of the vernacular of being a lawyer."

Simels also sought to outline the particular difficulties and dangers he faced while attempting to establish Khan's innocence.

The initial obstacle, Simels told the jury, was the dearth of information regarding the charges. The original indictment provided only a single allegation of conspiring with "others" to distribute cocaine, without specifying who those others might be.

But the indictment also included potential evidence of Khan's innocence, Simels said: It referred to Khan as "Short Man," which, as Simels would soon discover, was an unusually common nickname in Guyana.

Simels set out to get the prosecution to admit that there were others known as Short Man.

In preparing to defend Khan, whom he agreed to represent for $1.5 million, Simels made three trips to Guyana, where he met with witnesses and government officials, tracked down leads and prepared for Rule 15 depositions. He said that he felt as if he was in constant danger, and described a massacre that took place in his hotel lobby shortly before he arrived.

Now, the trial has become an extended discourse on the practice of criminal defense. What are the rules and ethics that define an attorney's obligation to "zealously" defend his client? What is expected of an attorney? What is required? What is allowed?

WITNESS FOR THE DEFENSE

To answer those questions, Simels' attorney, Gerald Shargel, on Tuesday called on defense attorney Anthony Ricco, whose clients have included alleged terrorists, high-profile drug dealers and one of the three police officers charged with and then acquitted of killing Sean Bell.

As an expert witness, the charismatic Ricco gave the jury a primer on the laws and ethical standards that govern criminal defense.

The subtext of Ricco's testimony was the propriety of Simel's purported strategy of pretending to "play along with" the suggestions of Selwyn Vaughn, Khan's associate, to threaten witnesses.

In opening arguments last week, Shargel contended that Simels' alleged complicity was merely "words," words simply intended to glean more information from Vaughn.

Vaughn, it turned out, was already cooperating with federal prosecutors, and the tapes of the conversations between Vaughn and Simels have served as the central evidence against Simels.

Though he did not discuss such a tact specifically, Ricco told the jury, "There's nothing wrong with talking with witnesses and potential witnesses about anything. The bottom line is, what the lawyer ultimately decides to put in the courtroom ... must be within the bounds of the law."

Ricco proved an unusually candid expert witness. In an animated, hour-long back and forth with Assistant U.S. Attorney Morris J. Fodeman, Ricco frequently agreed with Fodeman, on occasion even emphatically expanding on Fodeman's points -- such as the rationale behind the prohibition of payments to witnesses.

But Ricco also made it clear, that a defense attorney must at times go to extraordinary lengths to uncover the facts of his client's case. He spoke of a colleague who had recently hired a helicopter and armed security guards in order to fly to a dangerous town in Mexico in a quest for witnesses.

When Fodeman asked Ricco "how does Tony Ricco react?" to a witness' suggestion that "an act of violence" might benefit the client, Ricco took a rare pause, then said, "The answer is that you'd dissuade somebody from doing that, but it depends on the circumstances."

Ricco then added, "A lot of people say a lot of things," for a lot of different reasons.

CO-DEFENDANT

Tuesday's proceedings also highlighted the outsider status of Arienne Irving, Simels' former associate and current co-defendant charged with obstruction of justice.

Of the 10 attorneys sitting at the defense and prosecution tables, Irving is the only woman. In a room filled with prominent, veteran attorneys, she is perhaps, at 31, a decade younger than anyone else, aside from Shargel's associate, Evan Lipton.

While Simels, 62, often spends his court breaks talking with his wife, Irving huddles with her three roommates, with whom she shares a Manhattan apartment.

Irving, who is represented by the former Brooklyn prosecutor Javier Solano, was admitted to the New York Bar in 2004, after graduating from the University at Buffalo Law School; Simels graduated from New York Law School and was admitted in 1975. Both defendants face life in prison.

With the prosecution usually focused on Simels, Judge John Gleeson has twice asked the government if it intended to produce more evidence against Irving, an indication that he thought the case against her may have thus far been insufficient to take to the jury. The judge did, however, deny the defense's motion to acquit at the close of the government's case.

When discussing his experience as a defense attorney, Ricco told the jury, "I'm familiar with every lawyer in this courtroom, except the young lady that's a defendant."

Moments later, when Shargel jumped up for re-direct examination of Ricco, Gleeson told him to sit down and reminded him that it was Solano's turn to question Ricco.

"I'm sorry," Shargel said. "I was just so excited to ask more questions."