In the April 9th post there is a discussion of the a new motion filed by the defense in the trial of Richard Scrushy.  The motion is here (Download Motion.pdf ) and the response is here (Download Response.pdf).

Although the motion is titled to exclude the deposition and tape recorded conversations, the prayer for relief merely asks for an evidentiary hearing on the issue. The court previously ruled against defense counsel on this issue and rejected the exclusion of the tapes, but the defense is raising this issue again in light of Neil Seiden’s testimony at trial – testimony that the defense argues shows that "there was cooperation between" the SEC and DOJ in the taking of the deposition. The defense also argues that there is an ethics rule 4.2 (Alabama Rules) violation by using someone sent by the government to tape record the conversations. (shades of the Thornburg Memo days).

Admittedly there is a long line of cases that allow for parallel investigations between the SEC and DOJ (although the leading decision, Dresser was not a Supreme Court decision). But there is a more interesting aspect that is found in the government response. The government claims that there is no factual basis for the defendant’s argument. This is interesting because the defense motion’s prayer is not asking the court to summarily suppress the evidence. The defense motion is merely asking for an evidentiary hearing on the issue.

If given an evidentiary hearing, the question could become whether the defense could show that the civil action was brought "solely to obtain evidence for its criminal prosecution," "or without notice to the defendants that it contemplated a criminal action." (Dresser) Perhaps difficult if one came before the other.

The real question may be whether the judge ought to give defense counsel a hearing here. Obviously this trial has been fraught with numerous delays and perhaps this motion might be seen as just that – another delay. But why is the government so vehemently against the motion (19 page response to a 7 page motion). If there really is nothing to the motion, then wouldn’t they be better off having the hearing to protect the record from an appellate issue should the defendant be convicted.

(esp)