Wednesday, April 6, 2005
The Scrushy trial is certainly not getting boring, that is when it has been in session. The breaks come and go and the trial continues. But today AP reported that the prosecutor, while questioning a witness about HealthSouth under Scruchy's leadership asked:
"Was WorldCom a Fortune 500 company?"
"Was Enron a Fortune 500 company?"
As you might suspect, the judge did not allow these questions and admonished the jury to ignore them. But one has to wonder why a prosecutor would ask such inflammatory questions? Is the prosecution nervous that a conviction may not be forthcoming? Is the prosecution trying to make it so that Scrushy will have to take the witness stand to respond to prosecutorial comments? And if Scrushy is convicted, will this admonishment be sufficient to get rid of the taint?
The ABA Model Rules of Professional Conduct in Rule 3.4 state: "A lawyer shall not: . . . (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, . . "
The ABA Prosecution Function Standards, Standard 3 - 5.9 also speaks to this issue in stating, "The prosecutor should not intentionally refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice."