Tuesday, July 12, 2005
Bernard Ebbers request for a new trial was denied today, according to AP here (Tampa). This not only clears the way for his sentencing set for Wed. of this week, but also sets the groundwork for the appeal.
The appeal is likely to include two issues from the trial. One is that the defense was not permitted to offer defense witness immunity to three witnesses. The prosecution can easily offer immunity and obtain testimony from witnesses they would like to have testify. Although the immunity is "use" as opposed to "transactional" immunity, it allows the prosecution to compel a witness to testify when the government would like the witness to take the stand. Obviously, should the witness not tell the truth while on the stand, the government has the added ammunition of perjury charges.
In contrast, the defense seldom has the same ability to offer witnesses immunity and oftentimes the testimony they would like to bring forth into a court can be more limited. This appeal will likely present this disparity and also the significance of the constitutional provision of compulsory process when witnesses refuse to testify and take the Fifth Amendment. Other issues, such as an issue related to mens rea, is also likely to be raised on appeal in this case.