Fighting on the stand

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The night before a big cross-examination, defense lawyer Henry “Hank” Asbill always eats a medium-rare steak and drinks a glass of wine. It’s unclear whether that is the secret to his success as a trial lawyer. But young lawyers — those who are not vegans or teetotalers — may just want to try it. Asbill, a partner in Dewey & LeBoeuf’s Washington office, is one of the few lawyers to defeat both the U.S. Securities and Exchange Commission (SEC) and the Department of Justice (DOJ), handing them a bruising failure in the case of Kent Wakeford, a former AOL LLC executive charged with participating in a scheme to deceive investors and accountants. The criminal trial lasted a grueling 3 1/2 months and was one of the longest trials in the history of the Eastern District of Virginia. U.S. v. Wakeford, No. 05-12 (E.D. Va.). Asbill’s civil and criminal wins during the past two years in the seven-year-long Wakeford case cap a long record of wins in some highly challenging cases. Those wins include the acquittal of a client indicted in the early 1990s in a huge money laundering sting investigation targeting owners of a dozen car dealerships in Maryland and Virginia. U.S. v. Geneva Enterprises (D.D.C.). He is currently representing a Saudi Arabian citizen in a death penalty case. Virginia v. Ajlan, No. CR67600 (Prince William Co., Va., Cir. Ct.). The biggest challenge Asbill, 60, has spent three decades honing his skills as a trial lawyer in Washington, representing a variety of corporate and individual clients in federal and state court. He started out as an assistant public defender there. “I could never be a prosecutor, that was never my mentality,” said Asbill. The Wakeford case was one of Asbill’s biggest challenges to date. Wakeford was a former vice president at Internet service provider AOL who, along with two former lower-level AOL executives and four executives from Purchase-Pro.com Inc., were charged with participating in an elaborate scheme to deceive investors and accountants by inflating the revenue of the now defunct PurchasePro in the first quarter of 2001. Wakeford faced 23 counts and the possibility of several years in prison. He refused to accept a plea deal and was indicted by the DOJ and sued by the SEC in January 2005. DOJ and SEC representatives declined comment. Asbill began representing Wakeford in 2004, when he worked at another law firm. The government called more than 50 witnesses, introduced thousands of exhibits and produced tens of millions documents in discovery. As part of Asbill’s intensive trial preparation, he focused on voir dire and the creation of a 50-page comprehensive jury questionnaire, which he persuaded the judge to give to all prospective jurors. “I was looking for people who were fair, people who had some understanding that life is gray and things are complex,” Asbill said. “And I was looking for a diverse group of independent people, diverse in age, race, job, sex, geography and life experiences.” But Asbill’s biggest strength is in direct and cross-examination — and in taking the somewhat unusual approach of always putting his client on the stand. He did so in the Wakeford case, for more than 40 hours, against the advice of co-defendants’ counsel. “In white-collar cases it’s exceptionally important to get across to the jury the clients’ character,” Asbill said. “When your client testifies, his character becomes an issue by his demeanor.” The shaggy-maned lawyer — who was nicknamed “Wild Bill” by jurors — refused to tell his client all he planned to ask, preferring to keep some of his questions spontaneous. As a result, when Wakeford was asked on the stand how the case has affected his life, his family and his reputation, tears began pouring down his cheeks — and those of jurors. “He wanted to defend himself,” Asbill said. “The criminal case was delayed two years, and this was his chance to tell the whole world that he had done nothing wrong.” Asbill said he knew he scored a home run when he learned that the scopist — who works with the court reporter to prepare transcripts of trial testimony — e-mailed the court reporter during the trial to say, “this guy doesn’t need to bring a toothbrush. There is no way he is going anywhere.” After one day’s deliberation, Wakeford was cleared of all criminal charges in February 2007. But there was no time for rest — it was on to prepare for the civil case, which was near his home in Washington federal district court. This time, Asbill was facing even tougher challenges. The judge permitted only limited voir dire, and the SEC had a greatly reduced burden of proof. Also, the federal rules on character evidence had changed, throwing a wrench into Asbill’s main strategy of putting numerous character witnesses on the stand. Asbill again put Wakeford on the stand and tried to get across his client’s integrity in “subtle ways.” He said, “The character of my client and myself are very important to get across the jurors.” The seven-week civil trial ended in April 2008 with Wakeford cleared of all charges. The SEC has not yet stated whether it will appeal.

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