Tuesday, January 4, 2005

Will Scrushy Testify?

Will Richard Scrushy testify during his upcoming criminal fraud trial?  That question is likely to be among the most important ones Scrushy's defense team will have to help him decide as he prepares for trial.  Particularly in high profile criminal cases, the defendant's failure to testify can come back to haunt him or her when the defense is one of innocence and not just the lack of intent. A recent article by FindLaw Columnist Julie Hilden (available on CNN.com--Dec. 28) questions the decision by Scott Peterson not to testify at his murder trial.  The same author argued in a different article (here) that Martha Stewart and her attorney (Robert Morvillo) made the right decision in not having her testify. The answer, of course, is that each trial (and defendant) is different, so the judgment in one case cannot be generalized.  That said, jurors are frequently heard to comment on the defendant's failure to testify as having been harmful to the defense case, especially when the defense is one of innocence.

According to a story in the Birmingham News (Jan. 2), Scrushy stated in an interview, "I am innocent . . . I am innocent and ready for the trial." Scrushy advanced the same position last year during the civil trial regarding the SEC's request for a freeze of his assets, but he did not testify at that time on the advice of his attorney.  At the criminal trial, however, the pressure will be much greater for him to testify, especially when so many former HealthSouth officers--including all five former CFOs--have entered guilty pleas and could be called to testify against Scrushy.  It will be interesting to see whether the defense announces its intentions regarding whether Scrushy will testify when the opening statements are made, currently scheduled to begin on Jan. 18. (ph)

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