Federal Judge Charles Breyer started the day early today, having lawyers before him at 7:30 a.m. to quickly settle the issue of whether prosecutors in the backdating trial of Gregory Reyes can present a bit of late-disclosed testimony. He knocked the wind out of defense attorney Richard Marmaro by saying he wouldn't bar testimony that prosecutors only revealed at the last minute.
Yesterday Marmaro tried to convince Breyer to block former Brocade Communications employee June Weaver from testifying that Reyes, as Brocade CEO, once said to her, “It's not illegal if you don’t get caught.” That would pretty well murder Reyes’ defense, which is that he’d had no intent of breaking the law when his company ran afoul of those puzzling securities regulations.
Marmaro this morning asked Breyer to rein in the government’s questions to Weaver, who began testifying yesterday afternoon. Breyer replied, “I’m not going to rein in anything. I’m not the ringleader of a three-ring circus.”
In addition to his frustration with the big surprise, Marmaro raised concerns that Weaver’s testimony will prejudice the jury. She has told investigators that she recalls Reyes making that particularly damning statement, but she does not recall the context of the line. She says she only interacted with Reyes on the subject of backdated stock options, and thus believes that’s what he must’ve been referring to. Marmaro claims the remembered line is devoid of context, and context is everything. Breyer disagreed.
The defense has seemed sickly nervous this morning, and has continued to draw the judge’s ire. Breyer has been visibly impatient with Marmaro’s protracted questioning of witnesses, but the attorney has said he needs time with the witnesses to prove his case.
“I beg of you, your honor — I just ask the court for time,” Marmaro said. He has told the judge he’s also afraid Breyer’s palpable frustration will prejudice the jury.
Marmaro has been playing the cards he’s been dealt to the best of his ability, but Breyer isn’t one easily bluffed. At one point Marmaro reminded the judge that the Ninth Circuit routinely reverses decisions over late-disclosed testimony like Weaver’s. Breyer wasn’t fazed.
“That comes with the territory,” he replied.
— Justin Scheck, from court, with Brian McDonough