The judge falls asleep about here. Juror 11 quickly follows, head lolling so far to the right she'll shortly be in her neighbor's lap.
Strassberg's arguments are most effective when he explores Faneuil's integrity. "Faneuil had a motive to lie from the very beginning. He knew that telling Martha about Waksal's stock activity was wrong—he testified to that. He knew what the company policy was. He knew he could get into trouble, so he balked and blamed it all on Peter. Faneuil refuses to take responsibility for what ultimately was his decision." And this issue—that of personal responsibility—is the crux of Strassberg's argument.
To paraphrase, Strassberg says, "Faneuil admits Peter never told him to lie, but tries to minimize his own culpability by repeating that his boss aggressively implied he should. That in affect, Bacanovic bullied and intimidated him into agreeing with his stories. Faneuil paints himself the victim throughout his testimony, suggesting, 'Not my fault, I didn't know better'—even softball issues. Like when he didn't have the correct brokerage registration, when he threw away Eliza Waksal's stock sale stub, when he tossed a fax sent by a Waksal representative. It's always someone else's fault. He testified that although he knew what Bacanovic reportedly told him to do was wrong, he figured boss knows best." Cedarbaum's eyelids flutter—has she revived? No, there they go again. Strassberg is not deterred, probably because his back is to her. "Which is exactly what he says when his lawyer, the late Jeremiah Gutman (who died of a heart attack days after his testimony), inferred he should either lie to the SEC or say nothing. 'I figured my lawyer was looking out for me.'"
"Now Faneuil's a fascinating character—he twists the facts in just the key way to make all the difference in the world." Juror 11 jolts awake, notices her new friends are all bent over their notebooks, and follows suit. Strassberg continues, "Now Mr. Gutman testified to something a little different than what Faneuil said; Gutman's statement is that he told Faneuil to tell the truth or take the fifth, not to continue lying."
By this time, even Martha's spirits have visibly risen. She's watching the jurors with confidence and interest. They're too focused to notice.
"Faneuil's got enough conspiracy theories to go around. He accused Marcus, the head Merrill Lynch compliance officer, of telling everyone to keep quiet. He accused Judy Moynihan, a Merrill Lynch administrative officer, of bribing him, retracting only after realizing how ridiculous it sounded. Now is Faneuil just misunderstanding, or is he making this up?" Juror 4 taps his hands on his lips, nodding slightly. "If he just misunderstands, why do all the misunderstandings work out in his favor?"
Good question. Toward the end of the day, Strassberg asks the jury to consider whether the demeanor we saw on the stand—that of a confident witness evidently able to look folks in the face and lie, as he did with the SEC on several occasions, who resists answering direct questions over 200 times in exchange for asserting his own version of events, who always has to get in last word—"Is that someone who seems too timid to ask Peter Bacanovic a question about his story? Is that aggressive, astute person the one we heard him describing back in 2001? Those to people are not the same."
When Cedarbaum wakes up, she tells Strassberg to wrap it up. He can take another 45 minutes tomorrow. Robert Morvillo's closing, if anything like his defense tactics thus far, will likely be brief.
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