08182017 - News Article - When a defendant like Sheriff Buncich takes the stand, there are benefits and risks, expert says

When a defendant like Sheriff Buncich takes the stand, there are benefits and risks, expert says
POST-TRIBUNE NEWS
August 18, 2017
chicagotribune.com/suburbs/post-tribune/news/ct-ptb-buncich-trial-testify-st-0820-20170819-story.html
For eight days, Lake County Sheriff John Buncich occupied a seat at the defense table in the U.S. Federal Court for the Northern District of Indiana.

Flanked by his two defense attorneys, Buncich listened intently to his former chief of police, tow operators, FBI and IRS agents, a co-worker, a Carmelite nun and a mental health worker. Buncich took notes, passed messages to his attorneys and quietly spoke to them through the proceedings of his criminal trial.

On Thursday, Buncich, 71, assumed a new position in the courtroom: the witness stand.

In a criminal case, the defendant does not have to take the stand, said Joseph Hoffmann, a law professor at the Indiana University Maurer School of Law — it's a choice.

In his testimony, Buncich sought to tell the jurors just how tow operations work and describe how he only did legitimate campaign fundraising, but legal experts say the decision to step onto the witness stand has its benefits and risks.

The defense may choose to put a defendant on the stand if the persons seem like an unusual defendant with no criminal history, Hoffmann said.

"One reason they might do it is they have someone who is in an unusual position, someone who is an upstanding citizen who is suddenly charged with a crime," Hoffmann said. "Why would this person suddenly commit a crime when they haven't in the past?"

While a defendant could make for a bad witness, others could be beneficial, such as someone who is persuasive or sympathetic to a jury, he said. Hypothetically, an abused wife who lashes out at an abusive husband and is charged could draw sympathy from the jury, Hoffmann said.

In some cases, it's the defendant himself who wants to take the stand, Hoffmann said, despite what attorneys may recommend.

"At the end, the lawyer cannot prevent the defendant from taking the stand," Hoffmann said. "It's the defendant's choice because they're the one on trial."

On the stand, Buncich insisted he never offered tow jobs in exchange for campaign contributions, and discussed how territory was changed.

Defense attorney Larry Rogers asked the sheriff if any of the tow operators had to pay to get on the list when Buncich took office in 2011.

"Absolutely not," Buncich said.

Did they pay anyone else, Rogers asked.

"No, sir," Buncich said.

Rogers asked Buncich if he ever did anything that would have benefited either William "Willie" Szarmach, of C.S.A. Towing in Lake Station, or Scott Jurgensen, of Samson's Towing in Merrilliville.

"No," Buncich said.

A document prepared by Buncich and one of his defense attorneys showed the percentage each tow company got of jobs from 2012 to 2016.

The percentages of towing jobs that Szarmach and Jurgensen received remained level, according to that analysis. From 2012-16, Jurgensen got between 8 percent and 9 percent of the tow jobs, according to documents presented in court, and Szarmach ranged from 8 percent to 14 percent during those five years.

After nearly a day and a half of being questioned by his defense attorney, Buncich was turned over to Assistant U.S. Attorney Philip Benson for questioning.

Benson questioned some of Buncich's practices, such as listing cash contributions as anonymous or accepting money while working in his county office. Buncich stood by his choices, saying there was no wrongdoing.

Hoffmann said when defendants open themselves up to prosecutors, it can create problems or risk bringing up information that might not have been introduced at trial otherwise.

"Probably the main reason why a criminal defendant chooses not to take the stand is because if they become a witness in their own trial, they open up the question of their credibility," Hoffmann said.

Hoffmann said most people who are accused of wrongdoing are guilty of either that crime or something similar, but that's not to say every defendant is guilty. Buncich has maintained his innocence since his indictment.

Hoffmann said the question is, "Are they going to be persuasive in trying to tell the jury that they didn't do it?"

Throughout Friday, Benson peppered Buncich with questions about his fundraising habits.

Given the sheriff's ethical obligations, Benson asked if he saw a problem with the people he supervised going to sell campaign fundraiser tickets to county vendors.

Buncich said he only had a problem if those people are on duty.

"It's no different than any other office in Lake County," Buncich said. "Every elected official in Lake County does it."

Benson asked if Buncich had a problem directing people to go out and try to solicit those vendors.

"I do not," Buncich said.

At a criminal trial, attorneys and a defendant have to make a decision about whether to question the accused. Just as that is a choice, the defense doesn't even have to present a case, Hoffmann said, and simply just make opening and closing arguments.

"Your starting position is, let's make the prosecution prove this case under reasonable doubt, and let's not give them any help," Hoffmann said. "The burden is completely on the prosecution."