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special to the national law journal Attorney: Thomas C. Green firm: Sidley Austin Brown & Wood, Chicago case: U.S. v. Tyson Foods the way tom Green tells it, he got lucky. As the attorney who defended Tyson Foods Inc. against felony charges of violating immigration laws, Green claims he benefited from a series of breaks that helped him win the case-and spare his client a nine-figure forfeiture penalty. First, three of the six Tyson executives who were co-defendants pleaded guilty before trial. The remaining three did not appear on any of the hundreds of secret tapes made by federal agents during the investigation. Then, “the government oversold the case horribly in its opening statement,” Green said. And before the case went to the federal jury in Chattanooga, Tenn., the judge dismissed 24 of the 36 counts, including claims that Tyson attempted to smuggle workers across the border to work at its food processing plants. The company, which produces about 25% of the chicken sold in the United States, was acquitted on all charges. Luck may have played a small role in that March 2003 verdict, but the fact that the defense was in Green’s hands appears to have been a determining factor. Green, 62, has built his 35-year career on defending legislators, corporations and executives in high-profile cases, many in Washington. The Vietnam veteran said he savors courtroom combat and relishes the opportunity to go to trial. For him, a trial is “a series of credibility contests” that is won or lost on the strength of carefully chosen witnesses and the skill of the lawyer. Taking part in history He stepped into the limelight early. At 31, he became the youngest lead attorney in the Watergate case when his boss, David Bress, fell ill while defending the indicted Robert C. Mardian. It was “the most fascinating case I was ever involved in,” Green said. “You were right in the middle of history there.” Mardian was convicted, but that conviction was overturned on appeal. Green went on to represent Major General Richard Secord in the Iran-Contra hearings and was counsel to Senator Donald Riegel, D-Mich., during Senate Ethics Committee hearings in connection with the so-called Keating Five. Since 1999 he has represented Wen Ho Lee in two civil suits relating to the government’s false accusations that the Los Alamos, N.M., scientist was a Chinese spy. He suggests that he’s successfully extricated many more big names from sticky situations but is mum on details. There are, he said, “cases you can’t talk about because you do an effective job and the problem goes away.” The Tyson case clearly wasn’t one of those. Though Green felt confident the criminal charges had no merit, the feds were determined to take the case to trial. They alleged Tyson and three executives conspired to smuggle illegal immigrants into the country to process poultry. The government sought the forfeiture of profits related to those alleged illegal hires, an amount topping $130 million. Jurors deliberated for less than a day before acquitting Tyson on all charges. The forewoman said she was “appalled that the government didn’t have more hard evidence,” which was what Green had said all along. He won the case because he “was able to turn the government into more of a wrongdoer than the government portrayed my client. It was a kind of special situation here.” He presented evidence of a costly, slipshod investigation while simultaneously portraying his client as cooperating with federal agents and taking extra steps to comply with immigration laws. “If a lawyer can show that the corporation did walk the high road and tried hard to do the right thing and was deceived, that’ll always be a little bit of an opening,” he said. Green’s success stemmed in part from his honed expertise in addressing juries. He notes the panel’s demographic mix and tailors his case to them. If the jury is predominately female, for example, he’s more likely to choose women to testify. He’s also sensitive to using jurors’ time wisely. The Tyson panel had spent five weeks listening to government lawyers present their case. When Green told the judge he’d wrap up the defense in just two days, the weary jurors grinned and broke into applause. “I believe a minimalist approach to a trial is a winning approach,” he said. Not everyone agreed. The attorneys for the three Tyson executives were initially reluctant to pare their cases. They insisted the defense needed a week-and-a-half. Forget it, Green said. “I told these guys, ‘If you’ve got a witness who doesn’t add something, out with him or her.’ I just took a knife to the witness list.” The more succinct the case, the less likelihood of a dangerous stumble: “Every witness presents a significant vulnerability. The secret to the game is to put on as few witnesses as possible to tell the story you have to tell. Get ‘em on and get ‘em off.” One of the few witnesses he called was Alfredo Garcia, the government’s supervising agent for the investigation. Garcia was a familiar face to jurors because he sat at the prosecutors’ table during the trial. Green questioned him about Tyson officials’ cooperation with government efforts to crack down on the hiring of illegal aliens. Garcia agreed that Tyson’s top brass had been accommodating. He also admitted that he thought Tyson would have investigated his concerns had he only contacted them. That admission, Green said, was “a huge break” that had “a very profound effect.” It bolstered the defense’s depiction of the case as a poorly executed effort by the government while emphasizing Tyson’s compliance with immigration law. A loss in the case could have been catastrophic for Tyson, yet Green didn’t labor over the potentially dire consequences. Instead, he injected careful shots of humor throughout the trial. In his closing arguments, he reviewed the charges, which included the company’s role in the transportation of illegal aliens. He cited three who had been tracked between Los Angeles, Texas and a Tyson plant in Virginia. “Now, the only sad thing about all of this transportation is these individuals didn’t qualify for frequent flyer miles,” Green dryly told the jury. Properly done, humor builds rapport with the jury and humanizes what can be boring or repetitive testimony, Green said. He makes “a deliberate attempt to be entertaining, but not to the point of distraction.” A quick wit complements preparation and skill, he noted, but is no substitute for either. “They love to see competence,” Green said of juries. “If you can show them that a witness lied, for example, they come to see you are in touch with the truth.” He constantly monitors himself through a case to confirm that he remains the most persuasive lawyer in the courtroom. He has honed “the ability to literally watch myself while I’m on my feet. I have the ability to stand outside myself and look at me and come to a feeling of whether I am looking like a jerk or not.” “I have the ability to gauge from the jury’s reaction how I’m relating . . . and I have the ability to make adjustments. That’s the real key, making those adjustments.”

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