For two-and-a-half months, a jury in San Francisco federal court has been steeped — over-steeped, really — in all things British, including, of course, the key defendant in the case they’re deciding, software executive Michael Lynch.
Jurors have learned that Lynch, 58, still considers himself a “demon mopper,” i.e. really good at cleaning floors, owing to an early custodial job at a hospital. Because it’s a financial fraud case, they’ve heard a lot about “The City,” or London’s Wall Street. They know of Lynch’s Ph.D. from Cambridge, and about his affinity for James Bond.
Renowned in England as the co-founder and former chief executive officer of Autonomy Corporation, Lynch last week made the trial more interesting with a gamble, unusual in white-collar cases, to testify in his own defense. The move is risky because it gives prosecutors the opportunity to grill the defendant in cross-examination.
The hoped-for upside is that for jurors, hearing directly from a defendant humanizes him. In Lynch’s case, that meant jurors also learned that while he has a home in London, he spends most of his time on a farm two hours outside the city, where he raises rare breeds of animals.
Turning his large, round, bald head to speak directly to the jury, Lynch explained that his livestock is an answer to modern cows, which he said produce 500 percent more milk than traditional cattle.
“We call those ‘Frankencow’ because they’re not natural,” Lynch said. “They’ve been highly bred.” Lynch and a similarly interested group of breeders preserve the older lines of pigs, sheep, and smallholder cattle, he said.
“If you go back to medieval times, you know, the medieval breeds of pigs are really robust. They stay out, they live in the woods,” Lynch said. “So we swap cows, and keep the genetics of it going.”
Lynch is defending against federal criminal charges that he inflated Autonomy’s value before it was acquired by Hewlett-Packard in 2011 for approximately $11 billion. One year later, HP said it wrote down Autonomy’s value by $8.8 billion due to Lynch’s misrepresentations. He pocketed $804 million in the deal, according to a court filing. Lynch argues he is innocent of the charges. His spokesperson declined to comment for this story.
With the jury scheduled Monday to hear closing arguments and then finally begin deliberations, one detail jurors don’t know is that Lynch mounted a three-year legal campaign to avoid being extradited from the United Kingdom to San Francisco — or do they?
Lynch has been living in a six-bedroom Pacific Heights home that rents for $35,000 per month, according to court filings and Zillow. The sum he earned from the sale of Autonomy, and his resistance to extradition, factored into the $100 million bail he was required to post, as well as the stringent conditions of his release. He’s paying for 24-hour armed guards and video surveillance to make sure he doesn’t leave the home, except for medical appointments and court appearances.
In the scope of a massive white-collar criminal fraud prosecution involving an international defendant and more than 15 million documents, how Lynch got to the witness stand in San Francisco from England may seem like a small detail.
But the day before Lynch testified, behind the scenes, outside the jury’s presence, the question of whether jurors learned about his extradition erupted into a huge argument that threatened, however briefly, to upend the trial. How that fight ultimately gets resolved may prove to be of great consequence, not only to Lynch’s freedom, but to a prosecution that has spanned more than six years. Hewlett-Packard alone has spent more than $150 million “trying to take Lynch down” and aiding the prosecution, according to his lawyers.
Hewlett Packard Enterprise has helped U.S. prosecutors in the criminal case. The company declined to comment.
The U.S. Attorney's Office in San Francisco declined to comment.
The San Francisco jury isn’t supposed to know about Lynch’s extradition because, according to his lawyers, U.S. prosecutors agreed before trial that any reference to it risks an unfair bias against their client, denying his right to a fair trial. In the eyes of a jury, the lawyerly thinking goes, a defendant who fights extradition doth protest too much, pointing to, or at least hinting at, his culpability.
The hope among Lynch’s lawyers was likely that the jury wouldn’t consider extradition at all. Or if they have wondered why an Englishman is defending criminal charges in San Francisco, that they may assume he came to the city voluntarily, without a fight, to proclaim his innocence and vindicate himself.
“I’m not at all sure that jurors would know how a British defendant ended up in U.S. court,” said John Parry, a professor at Lewis & Clark Law School, who added the possibility that they might think Lynch was arrested while in the U.S.
“Extradition suggests not just a legal process, but an unwilling process, and arguably it suggests that this is a really serious matter — we don’t seek extradition of people for petty crimes,” Parry said. “On the other hand, the jury already knows that this is a serious matter — we are talking about an $11 billion deal allegedly procured by fraud.”
By comparison, Sushovan Hussain, who served as Lynch’s chief financial officer at Autonomy, didn’t fight extradition. A betting person might wager that the CFO’s conviction on wire fraud charges in 2018, followed by his sentencing the following year to five years in prison, might’ve informed Lynch’s decision to fight extradition.
Whatever assurances Lynch’s lawyers had about insulating jurors from learning about their client’s relocation to San Francisco, they claim a prosecutor intentionally let the cat out of the bag. As they put it in a court filing: “This was the first the jury heard the word ‘extradition’ in this case.”
The offending word was uttered when Assistant U.S. Attorney Bob Leach questioned Harriet Slack, a lawyer at the London office of law firm Clifford Chance. After a few benign inquiries, Leach sprinkled in questions about Slack’s expertise in extradition, as well as her representation of Lynch for almost a decade.
“You have experience in white collar crime cases both in the U.S. and the U.K., and extradition proceedings, is that right?” Leach asked her.
“Correct,” Slack said.
After a few more innocuous background questions, Leach added another: “And extradition proceedings, what are those?”
“It’s if an individual is being extradited from one country to another,” Slack replied.
Shortly afterwards, Michelle Levin, one of Lynch’s many lawyers, asked U.S. District Judge Charles Breyer for a sidebar.
“The prosecutors here brought up the extradition process,” Levin told Breyer, according to a transcript of the exchange.
“I was very attentive to that, because it’s highly prejudicial,” Breyer said. The judge cut the conversation short until after he excused jurors for the day. Once they were gone, Breyer, now speaking in open court to lawyers for both sides, said that when he heard Leach say the word extradition, “I actually tried not to sit up too far in my seat.”
Which was saying a lot. Because Breyer likes to lean way back in his reclining judge’s chair as if he’s at the dentist, sometimes with his eyes closed, for long stretches of testimony.
Some critics quietly say the habit is evidence that the judge, the brother of former Supreme Court Justice Stephen Breyer, is sleeping on the job. But that seems unlikely given his attention to detail, and his deep understanding of the law, which he often demonstrates spontaneously when he’s reclining (and even with eyes closed), ruling without hesitation on objections.
Breyer is also possessed of a wry and sometimes withering wit, often expressed with grand gesticulation. His commentary can grate on lawyers when they’re his target, but for outside observers, and often insiders, too, it usually leavens the proceedings.
Brian Heberlig, another lawyer representing Lynch, was livid. Leach’s disclosure was “flagrant misconduct” and “completely unwarranted,” Heberlig told the judge. “There was no reason to go into that, other than to inject in front of the jury this notion of extradition.”
Asked about his questioning, Leach told the judge that he was merely reading from Slack’s biography, to ask about her professional experience. “I did not suggest that she was participating in an extradition with Dr. Lynch,” Leach said.
“The question in my mind is can a jury, after that questioning, draw the conclusion that this — since this person had worked for ten years or so for Dr. Lynch, and she’s an expert in extradition — whether they can put two and two together and say, ah, she must have assisted Dr. Lynch in extradition proceedings,” Breyer said.
“That was the obvious import of his question,” Heberlig said. “Give me a break. He knew what he was doing, and it was intentional, and it was misconduct.”
Breyer said that he wanted to review the court transcript to see what went down, and essentially told everyone to sleep on it. Overnight, Lynch’s lawyers filed a demand for a mistrial, arguing Leach’s mention of the extradition had unfairly tainted the trial.
In court the next morning, Breyer rejected the request for a mistrial but agreed to strike Slack’s problematic testimony from the record, and to tell the jury to ignore it. When the jury returned he did that, and more.
“It’s one thing to say I strike this testimony,” Breyer told the jury. “But what I’m really concerned about here is what I call unconscious bias, or unconscious utilization of information, that somehow it’s going to affect your judgment.
I don’t want it to affect your judgment. And the way I think you deal with that particular issue is put in on the surface. Put it out, vent it, explain it, discuss it, so that you confront it and you know that when you go back to deliberations, none of that information will affect your verdict.”
And like that, the storm had passed. Tempers were calmed. It was as if Breyer had performed a judicial Jedi mind trick. It felt as if any notion of extradition had been vanquished from the courtroom, and by extension, jurors’ minds — and, notably, without the judge saying the word. And so the issue was resolved. For now.
Because on one hand, the episode was little more than lawyers making a lot of noise about nothing. But for some attorneys, that’s the job. Legal experts say the team of more than a dozen lawyers working for Lynch surely includes some who specialize in appeals. Their job from day one is to find any possible issue they can use to appeal Lynch’s conviction, should the jury find him guilty.
George Fisher, a professor at Stanford Law School, said that if Lynch is convicted, it’s likely that his lawyers will appeal based at least in part on their objection the prosecution’s mention of extradition.
“It's not clear, though, how gravely an appeals court will view questioning suggesting Lynch fought extradition,” Fisher said in an email. “After all, he is now fighting the prosecution at trial. Any juror who understands Lynch's right to fight conviction at trial is likely also to understand his right to fight extradition. So it's not clear this line of questioning likely raised a substantial risk of unfair prejudice.”
Long before any appeal is considered, by either side, the jury first has to get to the finish line. Lynch was the last witness, and during a break in his testimony Breyer was clearly exasperated by what he described as the CEO’s “extraneous” testimony. The judge told yet another one of Lynch’s lawyers that the court has has heard “enough farm stories, enough genetic engineering,” and to move on.
Then again, Breyer mused, “We didn’t get to the strawberry fields, which is too bad because it’s seasonal. We didn’t get to the clotted cream. We didn’t get to the cheddar.”
Editor's Note: This story has been updated to include a response declining to comment from the U.S. Attorney's Office in San Francisco, sent after publication.
