The Kibitzer Case

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Thursday, May 5th, 2016
The Kibitzer Case

Perhaps the most unusual appearance as attorney of record in a case I ever experienced occurred in a case in which the government had already rested its case before I became involved.

Gerry Goldstein, a San Antonio criminal defense lawyer who has now established a national reputation and who had al­ready established a regional reputation at the time, was representing a South Texas banker who was something of an operator, having arranged to obtain controlling interest of several different banks in a very short period of time. Gerry was also representing his wife, who was not involved in the banking business, but who had signed (because of Texas’ Community Property laws) certain documents that were important to the prosecution of her husband, thereby causing the Grand Jury to name her as a codefendant in three counts of the many-count indictment against her husband and two of the bank officers.

Since she clearly had no actual involvement in the banking operations of her husband, it had been anticipated that when the government concluded its case in chief, the judge would grant an instructed verdict of Not Guilty as to the wife. To everyone’s chagrin but to the particular chagrin of the banker’s wife, that did not occur.

At that point, though the relationship between husband and wife continued to be just fine, the specter of a conflict of in­terest raised its head.

While the wife did not wish to injure her husband, who was already in enough difficulty, she certainly didn’t want to go down with him if he did go down, since she had nothing to do with the banking machinations that resulted in the indictment.

The husband, too, though profoundly interested in his own defense, wanted to see to it that his wife was exonerated, whatever happened to him.

Thus, after several days of trial, none of which I had seen and none of the issues of which I really understood, I was asked at this juncture to undertake the separate representation of the wife.

I was acquainted with the issues in the case and the evidence relevant to the defense of the wife over a weekend, by Gerry and a young lawyer who was working with him.

There was a substantial potential prejudice to both my client and her husband if it was suddenly announced to the jury in mid-trial that I was now representing the wife. We certainly couldn’t tell them why I was now entering the case, and we couldn’t afford to invite their speculation. After some discussion, therefore, it was agreed that I would sit in on the trial and would suggest any necessary questions to be asked of the witnesses for the benefit of my client, and Gerry would ask them. Only if a situation arose in which the wife’s lawyer was duty bound to ask a question that would be contrary to the interests of the husband would I step forward, announce my status as wife’s lawyer, and ask the appropriate questions.

Further, I would not argue the case unless an argument adverse to husband’s interest needed to be made on behalf of the wife.

I don’t think either lawyer or either client was entirely satisfied with this arrangement, but it was the best we could make of a difficult situation.

For the next several days, while the defendants put on their case, I sat at the defense table between Gerry and my client, listening very carefully to the testimony and conferring periodically with one or the other of them. To his very great credit, Gerry was able not only to bear in mind the separate interests of the woman who was now my client, but was able to ask every question and raise every issue necessary to her defense without ever jeopardizing his own client. Nevertheless, our mutual discomfort continued.

It was particularly hard for us to jointly decide that Gerry would argue for both defendants; but it was finally agreed that she would be served no better by separate argument by me in her behalf than by Gerry periodically noting that, whatever husband’s involvement was, it was perfectly clear that wife was not involved, and that when she signed documents she did so as an accommodation to her husband, not really understanding the transactions involved.

Gerry argued the case very well on behalf of husband and wife—well enough, in fact, that the jury acquitted the husband on a large number of counts, though convicting on some. I breathed easier than I had since becoming involved, moreover, when I heard the magic words “Not Guilty” pronounced as to each of the counts against the wife.

In retrospect, it is strange to realize that some of the most anxious moments I ever spent in a courtroom were spent sitting beside a lovely lady and trying to look intelligent while Gerry Goldstein got her acquitted.


Note: In the March issue of Voice for the Defense, Judge Priest’s article, “A Lesson in Double Jeopardy,” was inadvertently truncated by a problem in file translation. We regret the error: The responsible employee has been properly flogged and the story reconstituted in its entirety and uploaded as the new online version. It may now be viewed beginning on page 37 at this link: