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Sommer Sensation: Closing Argument on Behalf of Michael Kimelman at Zvi Goffer Trial

 What follows below is Part 1 of Michael Sommer’s closing argument made to the jury yesterday as the trial of Zvi Goffer, his brother Emanuel Goffer and Michael Kimelman winds down.   The closing argument was divided into two parts as the jury needed to be excused at 5:30pm.  Mr. Sommer’s remarks followed those by each of Zvi Goffer’s attorneys, and Michael Ross, the attorney for Emmanuel Goffer. 

The government began this final phase of the 2 week old trial with its own summation of the evidence, after whiich it was clear that all the defendants had some work to do.  Mr. Sommer’s closing was extremely powerful, and both his legal and oratory skills were on full display as he sought to convince the jury that his client, Mr. Kimelman, was an innocent man. 

Mr. Sommer’s closing remarks concluded this morning, and were followed by a short rebuttal by the government.  More on that in my next blog. 

       THE COURT:  We will now have the summation on behalf

        6    of Mr. Kimelman by Mr. Sommer.  Sommers.

        7             MR. SOMMER:  Sommer.

        8             THE COURT:  Mr. Sommer.

        9             MR. SOMMER:  Good afternoon.  I want to start my

       10    summation by simply saying thank you to all of you who have put

       11    your lives on hold to be here as jurors in this case.  As you

       12    know, our system of justice cannot work without citizens such

       13    as you giving your time and attention to cases such as this to

       14    make sure that the system works properly and to make sure that

       15    the government is held to its burden of proof.

       16             You know, two weeks ago, I think two weeks ago today,

       17    I stood right here and I told that you Michael Kimelman was not

       18    guilty of engaging in insider trading or conspiracy to engage

       19    in insider trading.  I told you he never had the intent to

       20    commit a crime, he never did commit a crime, and he had acted

       21    at all times in good faith.  I reminded you in my opening

       22    statement that while I had no burden to prove that Mike was

       23    innocent, since the burden of proof rests solely with the

       24    prosecutors, I made a commitment to you that I would play a

       25    more active role in this trial.  And that I would demonstrate

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             1613GOF9                 Summation – Mr. Sommer

        1    to you that the prosecution’s accusations were just plain wrong

        2    when it came to Mike, unsupported by evidence, and that the

        3    prosecution’s case against Michael Kimelman simply made no

        4    sense.

        5             I stand before you today two weeks after I made that

        6    commitment, to explain that just what I said would happen is

        7    what has come to pass in this courtroom.  I stand here to tell

        8    you that the prosecution’s case against Michael Kimelman is

        9    flawed to its core.  It is bogus.  It is unjust.  What went on

       10    in this courtroom over the last two weeks with respect to Mike

       11    was wrong.  The prosecution charged a man with crimes when he

       12    committed no crimes.  And they stubbornly pursued their case

       13    even though they knew, as you now know, that their charges and

       14    theories were unfounded.

       15             You know, the prosecutors told you in their opening

       16    statement that they would prove that Mike was a member of a

       17    conspiracy, whose illegal goal was to engage in insider trading

       18    and that he engaged in insider trading in connection with his

       19    trades of 3Com stock.  That’s what they told you they would

       20    prove at this trial.

       21             And we come now, two weeks down the road, and what

       22    have you learned?  You’ve learned that the prosecution’s theory

       23    is completely false when it comes to Mike.  Mike Kimelman was

       24    never a member of any conspiracy, he was never told about any

       25    insider source, he was never told about any lawyers at Ropes &

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             1613GOF9                 Summation – Mr. Sommer

        1    Gray, he never had a prepaid phone, he never paid a penny for

        2    information.  No lies, no exaggerations when it comes to Mike.

        3             Ladies and gentlemen, you want a line in the sand?

        4    I’ll give you one.  A line in the sand when it comes to Michael

        5    Kimelman.  On March 25, 2008, when Brien Santarlas had seen

        6    that conference room at Ropes & Gray set up for what he thought

        7    was a closing for Clear Channel, CCU, he passed that

        8    information on to Jason Goldfarb, who the prosecution says then

        9    passed it on to Zvi Goffer, and then the flurry of phone calls

       10    started.  You can see it in this chart.  Zvi to Craig Drimal,

       11    Craig Drimal to Zvi, Jason Goldfarb, Zvi to Raj Rajaratnam.

       12    And you heard those tapes.  I played them for you.  Every one

       13    of these call was about two guys at the firm, Santarlas and

       14    Cutillo.  And that the lawyers at Ropes & Gray were working

       15    that night to get the closing done, to revise documents, no one

       16    was going home.  It was in the highest hands at the firm.  Do

       17    you remember all that?

       18             And then Zvi Goffer called Mike Kimelman.  Now, as

       19    that tape was cued up to be played, you must have all assumed

       20    that you would hear more of the same.  That you would hear Zvi

       21    tell Mike just what everyone else was being told.  Lawyers

       22    working late.  Documents being revised.  Two guys giving us the

       23    scoop.  After all, as the prosecutors over here like to say,

       24    Mike was in the inner circle.  Right?  I mean, that must mean

       25    he would be the next guy to get the information.  Look, the

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