Monday, April 18, 2005
Lawyers for Bernie Ebbers filed a motion on Friday for a new trial under Federal Rule of Criminal Procedure 33. According to a report in the Wall Street Journal (here), Ebbers asserts that the court's refusal to grant immunity to three witnesses -- all former executives of WorldCom -- denied him a fair trial. He also argues that the jury instruction on conscious disregard for the securities fraud counts was in error.
The immunity issue is usually a non-starter because the court does not have statutory authority to grant it without a government request, and will not grant it on its own independent authority absent evidence of government misconduct in refusing to authorize immunity. Regarding the second ground, given that the judge decided to give the intent instruction once already, it is unlikely the court will second-guess itself now, especially when the so-called "ostrich instruction" is widely accepted in the circuits if there is evidence that the defendant refused to pursue information in light of the circumstances. The defense motion is the usual step in the appellate process. (ph)