Will Hunter Take The Stand? He May Want To Think Twice Before Checking That Box

Authored by Jonathan Turley via jonathanturley.org,

This weekend, the Hunter Biden team is reportedly debating whether to have him take the stand on Monday, a move rife with risk. Most criminal defendants avoid such appearances given the potential damage of a withering cross examination. Those risks were evident in the recent testimony of Hunter’s daughter, Naomi, which backfired badly on key points.

I have sometimes been in the minority among defense attorneys and legal commentators on this question. In celebrity trials, a jury can feel alienated or even disrespected by a defendant not taking the stand. That was the case, in my view, with Martha Stewart. When a defendant brings forth a host of others to speak for him or her, the refusal to testify can become more glaring and concerning.

Hunter Biden is in that position. He has had a host of relatives testify, including his daughter Naomi. When you put your daughter on the stand and subject her to a tough cross examination, many jurors can wonder how you can stay safely behind the defendant’s table.

Yet, Naomi’s testimony is precisely why defense counsel are risk adverse on the question. She gave moving testimony on her love for her father and his struggle with addiction. However, her attempt to establish that Hunter was not using drugs at the time of his gun purchase fell apart on cross examination.  She testified that she was thrilled during this period with how “healthy” and clean her father appeared: “He seemed like the clearest I had seen him since my uncle died…I told him I was so proud of him and I was proud to be able to introduce Peter to him.”

Prosecutors showed her text messages that told a different story. In some, Naomi appears alarmed by her father’s conduct and lack of responses. On October 18, for example, she texted “I’m sorry daddy, I can’t take this, I don’t know what to say.” That message coincides with messages from Hunter seeking to score drugs from a guy named Mookie and stating that he was doing crack in a car. In other messages, Naomi complains that he was not responding. She finally received a response when, at 2 a.m, Hunter asked her to have her boyfriend drop off keys to a truck for him in Manhattan. Naomi was asked if she saw the drug residue or paraphernalia in the truck.

Any cross examination would focus less on Naomi than it would on Mookie.

Any decision to put Hunter on the stand is obviously dependent on your defense strategy. As I have previously written, all of the defenses suggested by Abby Lowell in his opening argument collapsed within two days. That includes the suggestion that someone else checked the box on the form denying that Hunter was using drugs. These claims seem so unbelievable and unsupported that they might insult a jury. However, the real strategy in this open-and-shut case appears to be simple jury nullification. The defense is trying to get one or more jurors to ignore the law and the evidence to acquit Biden.

Nullification efforts in the case appear to be a combination of both political and social association. First and foremost, this is Bidentown. It is the hometown of President Joe Biden and voted overwhelmingly for him in past elections. It is the opposite of the Manhattan trial of former President Donald Trump. This is the best possible jury pool for a Biden.

Second, all of the jurors testified to knowing someone with drug problems. Hunter has written moving accounts of his struggle with addiction. Some jurors may resist convicting someone who has seemingly overcome the scourge of addiction.

So, if this is a nullification strategy, does Hunter testifying help or hurt? The answer is that it could seal the deal or shatter it with jurors. Hunter will make a good witness on his struggle to overcome drugs and alcohol abuse. He can claim little or no memory of the gun store purchase. Hearing from him directly can establish a connection, even a bond, with jurors that could reinforce a nullification vote.

However, it will also subject him to cross examination by prosecutors who have been lethal in their well-planned and well-executed case. They can delve into his texts and the later intervention by his family to deal with his self-destructive lifestyle. He also faces the potential of triggering new criminal offenses through perjury.

That latter concern is particularly real after the formal referral of three House committees to Attorney General Merrick Garland. Hunter is accused of lying to Congress in his recent testimony on key issues under investigation. While many expect Garland to ignore the referral to protect the President and his family, the allegations are compelling and the Justice Department has previously prosecuted individuals in cases with far less support. This would appear a relatively easy perjury prosecution, but the politics may be insurmountable for Garland.

Most attorneys would advise Hunter to remain behind the defense table and not take the stand. After all, this is a great jury rendering a verdict on a Biden in Bidentown with the First Lady seated behind him for much of the trial. They just need one. The risk of testimony is that Hunter could burst into flames on the stand and torch any chance to nullify the crime.

We will know soon. However, if Hunter checks this box and testifies, it is the one decision that he will not be able to blame on others.