April 19, 2005
Scrushy - It May Be A Flip Flop, but it Sure is Forceful!
Amazing, is the best way to describe what is occurring in the Scrushy trial. First the judge dismisses the 3 perjury counts, then reinstates them after a notice of appeal by the government and says they will be dismissed at the appropriate time. The Order is below. Some thoughts on all this:
1. The judge's change in the order is necessary. You can't dismiss the counts just because you are prohibiting the use of the deposition. The govt. has to be given the chance to present other evidence if they have it. Assuming they do not have other evidence of the perjury counts (as will inevitably be the case here) then a judge can dismiss when the govt. has finished presenting all its evidence in their case in chief. But you can't dismiss the counts without first giving them the chance to present something else. Thus, it's likely that the dismissal will happen, but the timing was not initially correct and the correction was necessary.
2. Why is the government's notice of appeal only as to the dismissal of the counts? Will there be a notice and appeal of the court's ruling on not allowing the deposition into evidence?
3. The court's order is what I would call - forceful. This judge is not going to tolerate game playing by the government. The court is not saying that the SEC and DOJ cannot share evidence. The court explicitly says that "a defendant cannot succeed on a theory of a 'perjury trap' when the questions relate to a legitimate, parallel investigation" The difference in this case is that the court is finding the conduct here to be illegitimate. And one finds explicit items within the Order to support this conclusion.
4. The most fascinating part of the order is footnote 6. This footnote states that:
"The Government submitted for in camera review the email exchange between Department of Justice counsel and its Professional Responsibility Advisory Office. Although such officer authorized the contacts at issue, the court expressly makes no determination of their propriety."
This part of the Order is dealing with whether there has been Rule 4.2 violation (the old Thornberg Memo issue). The court does not grant defendant's motion on this issue. But what was in the email exchange that caused the Professional Responsibility Advisory Office to side with the government? One has to wonder whether it included the essence of the first part of the court's order? That is, did the government ask permission of their professional responsibility office to ask questions of the defendant using a civil proceeding in order to obtain evidence for a criminal trial?
If a person is being questioned by the government and they are a target of an investigation than under internal policy of the DOJ, they should be provided with a target letter. Was Scrushy provided a target letter before he testified? Was he not given a target letter because this was supposedly a civil proceeding and not a criminal one? Either way, this is not something a defendant can enforce in court, but is something that the Office of Professional Responsibility (OPR) can review and internally control. What really happened here?
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