Friday, May 6, 2005

Three Strikes You're Out! -Update in Scrushy Case

In this blog's April 6th post here, we talked about the judge's admonishment to the jury to disregard the prosecutor's comments regarding WorldCom and Enron.  After all, it is pretty obvious that these companies have nothing to do with this case -- other than to perhaps get the jury thinking that there is some comparison here.

But both the Wall Street Journal here and the Birmingham News (via here are reporting that the prosecutor mentioned Enron  in front of the jury again.   And according to the Birmingham News - it was not once, but three times.  Despite objections being granted by the court two times, the prosecutor went for a third question with the "E" word.  And not surprisingly, the court called the prosecutor's out -- (no more cross-examination of this witness for them).

According to these newspaper online stories it sounds like the initial mention of Enron came from the witness, and the prosecution argument here would probably be that their questions were an "invited response," a response sometimes permissible when a witness opens the door to certain questions.  But knowing the judge's prior position, and after two strikes, the third question was certainly taking an extraordinary risk. 

One has to wonder what the prosecution is thinking here.  Will the jury be upset with the judge because it seems like the prosecutors can't get their questions answered?  If the prosecution thought they might not make substantial headway with a witness would they  be better off,  tactically, having the cross examination stopped in midstream? 

On the other hand, continued conduct that goes against the judge's ruling is building an argument for the defense premised on prosecutorial misconduct should the defendant be convicted.  One approach  to prosecutorial misconduct is not to focus on a specific instance of misconduct, but rather to look cumulatively at the conduct throughout the trial. If the prosecution thinks the jury may convict the accused, is it wise to risk this?  Or are they putting pressure on the defense to have Scrushy take the witness stand?  Stay tuned.


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