There is an old saying among criminal defense lawyers that if you don’t have the facts on your side, pound the law; if you don’t have the law, pound the facts; and if you don’t have the facts or the law, pound the podium.

More recently, that last leg of the adage has been modified to where if you don’t have the facts or the law, pound the victim. The strategy involves attacking the victim’s memory, attacking the victim’s character, attacking the victim’s reputation, and hoping that the jury becomes more focused on the victim than on the perpetrator’s criminal deeds.

As the defense theory goes, if the jury dislikes the victim, then they are more likely not to convict the victimizer. This strategy, however, has certain limits and may backfire in front of a criminal jury where the jury sees through the smoke and noise and reaches a verdict based on the facts and law.

Executive From Starkey Hearing Technologies

Take the recent case of a federal criminal trial in Minnesota against former company executives at Starkey Hearing Technologies who were charged with embezzling more than $15 million from their company.

In September 2015, Starkey’s longtime president, Jerry Ruzicka; Chief Financial Officer Scott Nelson; and president of a Starkey subsidiary Jeff Longtain were all fired under suspicion that they stole millions of dollars from the company. Shortly thereafter, Starkey alerted the FBI to the embezzlement. The U.S. Attorney’s Office opened a federal investigation in which Starkey fully cooperated, resulting in federal criminal charges being filed against Ruzicka, Nelson, Longtain, and others.

After the indictment was returned, Nelson and Longtain each pled guilty, admitting that their embezzlement scheme victimized Starkey by more than $15 million. Ruzicka and others went to trial and the jury convicted them of multiple counts of fraud related to their multi-million-dollar embezzlement from Starkey.

In this case, one of the defense attorneys’ central strategies was to try to villainize Starkey’s CEO and founder Bill Austin and its current president Brandon Sawalich, who has been with the company for nearly 25 years. Despite the fact that Longtain testified that Austin had no knowledge of the years-long embezzlement scheme and that Austin had instructed that the case be brought to the FBI’s attention, the defense targeted Austin and Sawalich for character assassination.

Austin, who is 76 years old, built Starkey over the past 50 years from a one-man operation in his garage to the nation’s largest hearing aid manufacturer employing 5,000 people worldwide. More impressively, he has dedicated the last decades of his life to leading international missions, providing hearing aids and hearing health services at no charge to more than a million impoverished people in over 100 countries. Nevertheless, Austin and Sawalich were attacked mercilessly by defense lawyers.

Helpless Against Attacks Because Not on Trial

Faced with overwhelming evidence of their clients’ guilt, the defense’s relentless attack on Bill Austin and Brandon Sawalich was clearly designed to deflect the jury’s attention from the defendants’ misconduct. Since Austin and Sawalich were not on trial, they were handicapped to prove the baselessness of the accusations; instead, they had to suffer the attacks in court and then outside of court when the media ran stories based on the unsubstantiated accusations.

Notwithstanding the defense’s efforts to put the victims on trial, the jury saw through the smokescreen and convicted the misfeasors. During sentencing, from Dec. 19, 2018, to Dec. 20, 2018, the court sentenced Ruzicka to seven years’ imprisonment and the others to sentences ranging from two years’ imprisonment to probation.

U.S. Attorney Erica MacDonald stated after Ruzicka’s sentencing: “The defendant served as the President of Starkey Laboratories and had the confidence and trust of the company’s owner and its employees. Mr. Ruzicka abused that trust when he stole millions of dollars through a brash and complex fraud scheme.”

While it is often easy to resort to attacks on the victim as the heart of a criminal defense strategy, this case stands as a stark reminder that juries can see through such a strategy as no more than just pounding the podium.

Author Information

Nathan J. Hochman is a partner at Morgan, Lewis & Bockius LLP in Los Angeles and the deputy chair of the firm’s white collar litigation and government investigations practice. Hochman is the former head and Assistant Attorney General of the Department of Justice’s Tax Division and practices complex civil and criminal litigation, with a focus on white collar criminal defense, tax controversy, securities, and environmental matters.

The views expressed herein are those of the author and do not necessarily reflect the views of Morgan, Lewis & Bockius LLP or Bloomberg Law.