Date: December 28, 1998

Section: Interview

Location:

Title: Defense attorney Ted Wells, 3-0, against independent counsels, discusses acquittal of Mike Espy

Author: Rob Garver

Deck:

Story:

All was in readiness to greet Ted Wells as the conquering hero on December 7, when he returned to Lowenstein Sandler, the Roseland firm where he has practiced law for 22 years. Wells had spent the previous four months primarily in Washington D.C., where he won acquittal on all 30 counts of an indictment charging former Secretary of Agriculture Mike Espy with accepting gifts and bribes.

The firm had prepared for a party, and commissioned several large banners, one of which declared,”WAY TO GO, TED.”

What was missing was a word from Espy. The firm asked if he would send a telegram of thanks to Wells from Washington that could be read at the homecoming celebration.

“A telegram just wasn”t enough,” Espy explained on the day of the party. He instead drove to Roseland from Washington that morning. There, in front of Wells” assembled partners and associates, he recited the words that might have appeared on the telegram: “I owe my soul, my spirit, and my countenance to the Lord. But I owe my freedom to Ted Wells.”

Lounging in Wells” office later that day, the attorney and his client discussed the case, which made Wells a career 3-0 versus independent counsels–attorneys, such as Kenneth Starr, who are appointed by the Attorney General and given broad powers to investigate specific allegations–and further enhanced his reputation as one of the premier white-collar criminal lawyers in the country.

The 48-year-old Wells, whose past high-profile clients include Labor Secretary Raymond Donovan, James Regan of Princeton/Newport Partners and financier Michael Milken, has earned that reputation through a combination of rhetorical flair and total-immersion study of his cases. He always checks into a hotel for several weeks prior to the start of litigation while he prepares his presentation. “It”s easier on my family,” he says.

Espy described Wells” closing argument in his case as “magnificent.” Wells had taken the extraordinary step of refusing to mount a defense for Espy, dedicating his entire effort instead to the destruction of the prosecution”s case.

The strategy kept Espy off the witness stand. “In my opinion, we had devastated the prosecutor”s case,” said the Harvard-trained Wells, leaning back into the leather sofa in his second-floor corner office. “There was no need for Secretary Espy to testify. It would have prolonged the trial, and who”s to say what might have happened? We could have lost some jurors, there might have been a mistrial, anything.”

Selling this stratagem to Espy, however, required almost as much lawyerly skill as his closing argument. “It took quite a bit of persuasion, because he was determined to tell his story under oath, not only to the jury, but to the world,” said Wells.

Espy, also a lawyer, said that only as he began to see Wells in action during the trial did his desire to present his own case subside. “I have always been the guy to speak for others,” he said in his soft, Mississippi drawl, “I have always been the one to vocalize what needed to be vocalized. But we had been in trial for seven weeks, and I saw how the jury responded to Mr. Wells. They were in awe of him. They took notes. They gave him their full attention.”

The jury”s reaction to Wells was in stark opposition to its feeling for Independent Counsel Donald Smaltz. James Warren, a reporter from the Chicago Tribune, noted that some of the 12 “nodded off” during the prosecutor”s closing arguments. But when Wells took the floor, Warren wrote, “The dozing dozen seemed to have been injected with Benzedrene.”

Back in Roseland, Espy leaned back in one of the black leather armchairs in Wells” office, and recounted with understandable glee the prosecution”s mishandling of the final phase of the trial. Smaltz “drowned in his own paper,” said Espy, and at one point even spilled a glass of water on an electronic projector, shorting out the whole system.

“We got into his head,” said Wells with a grin. “For four years no one else had fought back. Now here we were, beating him every day.”

Wells actually betrayed a hint of irritation with his opponent”s ineptitude, as though it somehow discounted his victory. At one point during the trial, he said he remembered thinking, “I”m doing something special here, and this guy is making my job look easy.”

In all his cases, Wells takes the floor for his closing statement without notes, leaving him free to roam the courtroom like an actor on a stage, creating the connection between himself and a jury that he always seeks.

Espy noted that the prosecution team, which had done all of its presenting from behind a podium, objected to Wells” style. “They tried to interrupt the flow. They wanted the judge to make him stay behind the podium, which they had needed to hold their notes.”

“I believe you can”t be a great lawyer and work with notes,” said Wells, in one of many offhand slaps at his recent opponents. The jury, he said, should be made to feel as though they are listening to someone speak “from the heart” rather than from a prepared script. “What I am trying to do is create an intimacy, and demonstrate that I have such a command of the facts that they can believe in me.”

During a separate interview, one of Wells” colleagues at Lowenstein Sandler put it somewhat differently: “He establishes a rapport with the jury to the point where they are thinking, ”I really like this guy Ted Wells. How can I possibly put his client in jail, no matter what kind of SOB he might have been?”

In Espy”s case, the jury was so persuaded that after only two days of deliberation, they put aside the prosecution”s $20-million case, its 70-odd witnesses and four years of work, and set Espy free.

The close of the trial does not mark the beginning of a vacation for Wells; he has major cases pending in Miami and New York City, and was recently named treasurer of the Bill Bradley Presidential Exploratory Committee.

Wells is a long-time advisor of the former New Jersey senator, and has spent enough time with the basketball player-turned politician to pick up the habit of using hoops metaphors in discussions of politics. “I”ve always been a part of the team,” he says. “Whatever plays he calls, I will try to execute.”

The possibility of a Bradley administration brings up a very obvious question: What if Bradley offers him a political appointment?

Espy breaks in: “Don”t do it.”

Laughing, Wells responds, “Don”t let me.” So far, the temptations of the political life have held no sway over Wells. “I”m an ambitious person,” he concedes, “but my ambitions lie elsewhere.” The record bears him out: during President Clinton”s first term, he declined appointments as both a Federal judge and U.S. Attorney for New Jersey.

“That political bug is infectious,” Espy says, “but apparently he is immune.”

“I participate because I feel an obligation to help smart, honest people gain office,” Wells says. But for himself, political life is a bad fit. “Once you become part of someone”s administration, you lose some of your own independence,” he says.

Wells knows that the invitations will, no doubt, continue to come and says, “I hope I”ll continue to turn everybody down.”