Wednesday, May 25, 2005

Who Does Understand Conspiracy?

Perhaps one of the hardest subjects to teach in criminal law is the law of conspiracy. It is therefore not surprising that the Scrushy jury is having trouble understanding this particular aspect of the case. (see here and here) After the usual and unusual (see here) preliminary aspects of the  jury instructions, the court's instructions in this case then proceed through each count of the indictment, defining the elements that the government needs to prove in order to convict the defendant of these crimes.  Although the first count is conspiracy, the court tells the jury that she will describe this one after she has finished with the others, since conspiracy includes these other offenses. That's the first clue that this charge is complicated.

The accused, Richard Scrushy is charged with conspiracy under 18 U.S.C. s 371, the general conspiracy statute that tacks on an underlying offense to a general conspiracy charge.  Unlike some other conspiracy statutes in the federal code (RICO and drug conspiracies), this statute explicitly requires that the government prove an overt act on the part of the defendant.  Other conspiracy statutes often do not require proof of an overt act.  That's the second clue that this charge is complicated.

Conspiracy under 18 USC 371 is divided into two possible choices.  One possible approach is a conspiracy to defraud, where the deprivation is to the United States government.  Under this portion of the statute it is not necessary to show an underlying specific offense.  It is enough if there is a deprivation of the federal government.  In contrast, a conspiracy to violate a specific provision of the Code, such as wire fraud, etc. requires that the government prove the agreement was to commit the crime alleged.  In this case the alleged agreement was to commit numerous different crimes.  That's the third clue that this charge is complicated.

The government in federal cases has the option of charging both the underlying conspiracy and the specific offense, thus charging the defendant with two different crimes for the same exact conduct. Some states do not permit this double charging and the Model Penal Code prohibits it "unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted." (Dressler's, Understanding Criminal Law).  So jurors are left to figure out not only the substantive offense on a jury form, but also whether there was an overt act regarding the individual conspiracy acts - even when the conduct is exactly the same as some of the specific counts they are considering. That's the fourth clue that this charge is complicated.

Couple that with 78 pages of jury instructions, and that number does not even include the numerous pages of verdict forms with explicit questions for the jury to answer-- and you ask why the jury is confused and wants explanations in lay people's terms?   


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