Tuesday, April 19, 2005
But minutes ago, a post here described the court's elimination of three perjury counts against Richard Scrushy, former CEO of HealthSouth. But even more is happening today as the government is now requesting that the court drop two mail fraud counts against the accused. (See AP story here in Wall Street Jrl). If granted it will bring the number of charges against the defendant to 52 (will the closing argument use analogies like -"we are dealing with a full deck").
The government appears to want these two charges dropped because documents they intended to use to prove these allegations are no longer available. Did the government lose the evidence, fail to retain it, and when did they find this out?
So why drop the charges, as opposed to just letting the jury return a not guilty or letting the court dismiss the charges at the end of the government's case?
Perhaps it is good faith on the part of the government, and if so this is admirable to see in a case that has suffered such controversy. But it can also be that the government needs them out of the way as quickly as possible to avoid later claims of a spillover effect coming from improper charges. The last thing the government wants if Scrushy is convicted, is a defense appellate argument that the charges allowed improper evidence that tainted the rest of the trial. Then again it could be that the government can't take a chance that the defense will move to dismiss these unproved counts.
Keeping them as charges can work both ways for the defense.
(1) On one hand they can be used to show how absurd the government charging process is - the closing argument might be something like - they threw spaghetti at the wall and just hoped something might stick. The defense motive may also be that some of their relevant evidence relates to these charges and it is necessary to keep them in play to present that evidence.
(2) Alternatively, the defense cannot take a chance at failing to move to dismiss unproved charges at the close of the government case. What happens if the prosecution should be successful on these charges? There is also the fear of the compromise jury - - the jury that wants to give something to the defense and something to the prosecution. Giving away charges that could have been eliminated without jury resolution may take away a favorable card in the defense hand.
In the end, if the evidence isn't there, the charges need to go, and it is good to see the government making the first move to make this happen.