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If Lazarenko appeared commanding, Earl was tired and nervous. He'd spent six of the previous twelve months overseas, away from his kids, missing much of his youngest child's kindergarten year in preparation for the trial. Now he would work seven long days a week until it ended. Six years of digging were at stake.
Wary of legal proceedings that turn into personal dramas, the prosecution approached the trial with dry factuality. Their opening was simple and straightforward. Boersch stood behind a podium and recited the spare tale of how $114 million made it from Ukraine to the United States. All she asked the jurors to do was follow the money.
In Doron Weinberg's opening argument, he conceded many of the facts-the bank records, the account balances, the Elk Grove prefabs. What he offered was an alternate story. The money wasn't criminal proceeds. It came from deals made by people unfamiliar with capitalism's rules. Lazarenko wasn't laundering money. He was protecting it from a rival who would do anything to keep a Western-minded reformer from impeding his reelection. And when Lazarenko fled to the United States, Earl and Boersch were waiting with a case handed to them by Kuchma and reliant on the testimony of a betrayer-Kiritchenko.
This story of foreign intrigue was no stretch. Testimony was given in Russian, Ukrainian, Greek, Macedonian, French, and Dutch. Witnesses testified via videotape recorded at foreign dispositions that were often not under oath under U.S. law. Tens of thousands of pages of foreign documents were introduced into evidence.
From their war room, a rented two-level apartment in Opera Plaza on Van Ness Avenue, Lazarenko and his defense team had formulated a three-pronged strategy: attack the political roots of the case, attack the worrisome precedent, and attack Peter Kirit-chenko. They worked eighteen-hour days, sandwiching five hours in the courtroom with long stretches spent poring over transcripts and motions.
The effort was paying off. Just days into the trial, Earl and Boersch seemed listless, wearied by Weinberg's relentless cross-examinations and, it seemed at times, by their own stultifying task. Earl sat at the foot of the prosecution table, ru
Almost every day Earl and Boersch tangled with the sprawl of the trial. Trials had featured foreign records and witnesses before, but never to the extent this one did. Earl had interviewed potential witnesses during five separate trips to Ukraine, but many simply refused to appear. "If we say to somebody, 'Will you come to the United States?' and they say, 'No,' then we're SOL [shit out of luck]," Earl said, showing uncharacteristic frustration.
Fortunately for the prosecution, its star witness lived on the other side of the Golden Gate Bridge. Three weeks into the trial, the man Lazarenko once called "brother" climbed the steps of the witness box reluctantly. He sca
"It might have appeared to be begrudging and it probably was, but it was who he is. He didn't pretend to be something he wasn't."
Yet the chinks in the prosecution were growing. Their star witness's penchant for blurting out the unflattering truth came to a head as he described the day after he'd cut his deal with the government, when he was released from prison. Kiritchenko packed his belongings and turned to Lazarenko to say good-bye. He embraced his friend and gave him a kiss on the cheek.
"And you hugged him and kissed him on the cheek?" Weinberg asked softly during his cross-examination.
"I kissed him. That was a Judas kiss!" Kiritchenko burst out in reply.
The crowded courtroom let out a collective gasp. The defense had turned the tide.
The final week of the prosecution's case was a parade of disappointment. Reticent witnesses had left Earl and Boersch holding a weak hand, and the droning of the videotaped depositions reduced what was initially a capacity crowd to a few hardy souls. It was Dali on downers, the courtroom clock dripping off the wall and into a horizonless tedium.
The coup de grace came at the hands of a motion to dismiss, written by the silver-maned Riordan. On May 7, Judge Martin J. Jenkins threw out twenty-four of the fifty-three counts in the indictment, coming down hard on the prosecution for overreaching the scope of the limited Ukrainian law that existed at the time. "It is simply inconceivable to try someone for something that wasn't criminal at the time and place it was committed," Jenkins told Boersch.
Lazarenko's victory was imminent. Nearly seven weeks into the trial, Martha Boersch and Bryan Earl appeared ready for the trial to end.
Earl's hopes for a conviction were tied precariously to the tangled paper trail he'd accumulated. The defense, meanwhile, hammered away at Kiritchenko's credibility, their three-pronged strategy narrowed to a single-minded smear campaign. Lazarenko's team trotted out Ukrainian after Ukrainian to testify to the heartfelt friendship between the partners, painting Kiritchenko as a traitor and liar who had every incentive to turn on Lazarenko. In the end, Weinberg argued to the jury, "It all comes down to this: Do you believe Peter Kiritchenko beyond a reasonable doubt?"
The answer came at 11:30 a.m. on Thursday, June 3. After deliberating for about twenty-four hours over four days, the jurors filed into the packed courtroom.
The foreman handed the verdict to a U.S. marshal, who passed it to Judge Jenkins. He examined it without expression and gave it to his courtroom deputy. She stood and read. Guilty. Guilty. Guilty. She said it again and again, twenty-nine times in all. Guilty on all counts and all underlying crimes-the jurors had checked every box on the verdict form.
Lazarenko did not flinch as the verdict was read. When the deputy had finished, he turned to Weinberg and asked, "Where shall I go now?" Weinberg wasn't sure.
The verdict left confusion in its wake. Though Earl, Boersch, and the rest of the prosecution team quietly accepted congratulations from colleagues who had crowded the courtroom to hear the jury's decision, they knew enough to downplay the results. By checking every box on the verdict form, the jurors had affirmed what appeared to be incompatible theories about what crimes had been committed in Ukraine. Their subsequent refusal to talk to anyone, rare in legal circles, left everyone wondering what-beyond exhausted sighs-went on during deliberations. "I don't think this jury had any idea what it was charged with deciding," says Wein-berg, and the speed with which the jurors returned the verdict made it hard to disagree. "And I don't think the United States should be able to impose its view [of financial law] on the world."
The defense attorney wasn't alone. The precedent, if upheld, "invites a jury to say, 'This just generally looks sleazy,' " says Robert Weisberg, a Stanford law professor and expert in white-collar law. "It makes prosecutors the moral arbiters of world capitalism."
But Bryan Earl was characteristically clear-eyed in defending what the government had done. "We weren't out fishing; he came to us. And he brought his money, and he brought himself, and he bought a big house and tried to set up his hiding place in the United States," Earl says with sincerity. "That doesn't strike me as us trying to impose our will on somebody else."