July 11, 2005
Scrushy - Double Jeopardy Should Preclude Retrial
The Motion to Dismiss the government's appeal in the Scrushy case is pretty telling. (see Download motion_to_dismiss.pdf)
This motion includes as an attachment the judge's order that dismissed the three counts that the government is appealing. After noting the improper conduct by the government in this case, the order explicitly states - "The Government represented on the record to the court that it has no evidence of perjury apart from Mr. Scrushy's S.E.C. deposition. As a result, the perjury counts, Counts 30, 31, and 32, of the Superseding Indictment based on that testimony will be dismissed at the appropriate time." This sure sounds like a decision premised upon sufficiency of the evidence. And if premised upon sufficiency of the evidence the law is clear that the government cannot appeal the decision because it will be double jeopardy. Co-blogger Peter Henning notes the problems that the government could have with respect to collateral estoppel as a result of the jury verdict in this case (see here). But looking at the language used by the court in this Order, not once, but more than once, it sounds like the cases of Martin Linen and Smalis should preclude the prosecution from appealing this decision.
P.S. And if you didn't like the verdict, well check out Dean John Carroll's op ed piece here. Sometimes the evidence just isn't there.
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