by TChris

The judge presiding over Kobe Bryant's case handed the NBA star a victory yesterday, but prosecutors announced their intent to appeal the judge's ruling. Judge Terry Ruckriegle agreed with the defense that the 19 year-old woman who is accusing Bryant of sexual assault can be questioned during a closed hearing scheduled for March 24 and 25. He declined to grant a prosecution request to limit the questions that could be asked of her.

At issue is Colorado's rape shield law. Like other laws across the country, Colorado's rape shield law is designed to prevent defendants from bringing up an accuser's sexual history to besmirch her reputation or to support an argument that a promiscuous woman is more likely to have consented to sex.

Those laudable goals must give way to a defendant's right to a fair trial. Defendants have a constitutional right to present evidence that is relevant to their defense -- evidence that weakens the government's case or that supports a theory of innocence. The assumption that an accuser's sexual history is never relevant is mistaken, as Bryant's case demonstrates.

Defense attorneys Hal Haddon and Pamela Mackey say the details of the woman's sex life are important in determining whether injuries found after her encounter with Bryant could have been caused by other men and whether she suffered emotional trauma, as prosecutors claim.

They also say they want to know whether she had a "plan" to sleep with Bryant to win attention from an ex-boyfriend, and that she has slept with two prosecution witnesses.

The court's ruling does not mean that Bryant will be able to ask wide-ranging questions in front of a jury. The court will presumably decide whether, and in what way, to restrict cross-examination at trial after hearing the accuser's answers to Bryant's questions behind closed doors.

The court will also decide whether the accuser waived her right to keep her medical records confidential and whether investigators illegally questioned Bryant after the alleged attack. Rulings on those issues may come after the next hearing.

by TChris

Martha Stewart's fate is now in the hands of a jury. The case against Stewart's former Merrill Lynch broker and current co-defendant, Peter Bacanovic, was also submitted to the jury, but the judge made a point of instructing jurors not to hold the joint trial against either defendant.

"You are to consider the charges separately against each defendant ... as if that defendant were being tried alone," U.S. District Judge Miriam Goldman Cedarbaum said at the beginning of jury instructions. "You can find one guilty without finding the other guilty.

"The fact the defendants are being tried together is not evidence of anything," she said.

During closing arguments yesterday, Stewart's lawyer, Robert Morvillo, conceded that Stewart learned that ImClone founder Sam Waksal was dumping shares in his own company.

"No one is disputing whether or not Martha knew the Waksals were selling on December 27th. Frankly what we are disputing is that it made a difference to her," defense attorney Morvillo said.

Morvillo argued that Stewart had a preexisting arrangement to sell her ImClone stock if it fell to $60. He also argued that Stewart was too smart to have staged such a botched attempt at a cover-up.

Update: No verdict today. The jurors will sleep on it and renew their deliberations in the morning.

So far, jurors have been inquisitive.

by TChris

Bernard Ebbers, the Worldcom CEO who allegedly cooked the corporate books to conceal the company’s financial woes from investors, has been indicted. The indictment adds Ebbers to what the Associated Press terms the “swelling ranks of corporate chieftains facing criminal prosecution and possible jail time for financial misdeeds.”

The “swelling” of the federal prison population to date has been the product of the war on drugs (pdf), not a war on corporate fraud. Will those who puff profits now be prosecuted with the vigor once directed at those who puff roaches? Apparently they will, if you believe John Ashcroft (and who wouldn’t?), who wants the indictment to send a message: “No one,” Ashcroft said, “stands above the law.” Reassuring words from that bastion of respect for the rule of law.

But why hasn’t the Attorney General protected investors by hauling Ebbers to a detention camp, denying him access to lawyers or courts? If Ashcroft truly believes that the law applies equally to all, shouldn't he be giving Ebbers the Jose Padilla treatment?

The Judge in the Scott Peterson trial ruled today that the prosecution may introduce evidence of Peterson's wiretapped calls:

Judge Alfred A. Delucchi was unswayed by the arguments, saying investigators followed proper procedures when monitoring the calls and any privileged information they heard was "so minimal to be of no consequence."

....During the first few months of 2003, investigators monitored about 3,000 of Peterson's calls, including 76 between the former fertilizer salesman and his first attorney.

Since the hearing was held behind closed doors yesterday, we don't know what those calls contain. But, earlier reports are that there is no smoking gun or confession on them.

Jury selection begins tomorrow.

The Government gave its initial closing argument in the Martha Stewart trial today. They painted her as a liar. The defense lawyers for her co-defendant, stockbroker Peter Bacnovic, began their closing today, calling the Government's case one without foundation, built on a house of cards.

We think the strongest charge against Martha is the one that she made false statements to investigators when she said she didn't recall being told that Waksal was dumping his stock shares. We don't think the defense was successful in destroying Douglas Fanueil's credibility. But, in the end, we don't think the Government's case against Martha is strong enough--we think at least one juror will refuse to convict her.

The prosecution isn't done though. They get the last word--a second closing argument, after the defense lawyers have finished. The trial will end with their last words, and then jury instructions. Hopefully, Robert Morvillo will anticipate what the Government intends to say in its rebuttal closing and debunk it in his closing. If we had to guess what the prosecution will save for its rebuttal, we'd say it will stress to the jury that the case against Martha isn't small potatoes, it's an important one--and then do a little flag waving.

Peter Goldberger, the appellate lawyer guru from Ardmore, PA, points out that the news is mischaracterizing the Judge's dismissal of the securities fraud count against Martha Stewart. He writes,

Judge Cedarbaum did not "toss" or "dismiss" or "throw out" the securities fraud charge against Martha Stewart, as all the news stories have been saying. She found Stewart Not Guilty on that charge, that is, she acquitted her.

Peter is correct. Martha was acquitted on that count. You can read the opinion here(pdf).

Update: Here is some of the relevant language from the Judge's opinion:

Great news for Martha! The Judge has thrown out the securities fraud charge against her.

The charge accused Stewart of deceiving investors in her company, Martha Stewart Living Omnimedia, by lying about her sale of ImClone Systems stock. "Here, the evidence and inferences the government presents are simply too weak to support a finding beyond a reasonable doubt of criminal intent," the judge wrote.

U.S. District Judge Miriam Goldman Cedarbaum left intact four other charges against the celebrity homemaker - conspiracy, obstruction of justice, and two counts of lying to investigators.

The Judge did not dismiss any counts against co-defendant Bacnovic. Closing arguments will be Monday. The Judge's 23 page ruling should be available here soon.

More denials by Michael Jackson's young accuser have been captured on videotape:

Videographer Christian Robinson says he spent two years recording Michael Jackson and those who made it into the pop star's inner circle. Now Robinson is finally talking about what he saw during those years and about a tape that could rock the case against Jackson.

Robinson says he taped his own interview with Jackson's accuser and his family soon after Martin Bashir's documentary Living With Michael Jackson aired in February 2003. The 24-year-old videographer says he asked them whether there had ever been any inappropriate sexual behavior between the pop star and the young boy.

"Yeah. I asked. And they answered, and they were very up front and they, of course, said absolutely not," said Robinson on ABCNEWS' Good Morning America. "All of them, every single one," he said. Robinson claims the alleged victim, his brother, his sister and his mother all said Jackson did nothing wrong.

Bump and Update: Martha will not testify. She will rest her case tomorrow.

*************
The Martha Stewart trial may wrap up today. Her co-defendant and stock broker, Peter Bacnovic, will not take the stand. We believe Martha won't either. After Bacnovic rests, the Judge will rule on tossing the securities charge. We think it's history.

If the Judge throws out the securities charge, Martha's lawyers are expected to call one witness. The jury would likely get the case this week.

Our money's on Martha.

Monday the Judge in the Martha Stewart trial will hear more arguments and decide whether to throw out the securities fraud charge against her. From the questions put to the prosecution on Friday, this seems quite possible.

Cedarbaum on Friday repeatedly asked prosecutor Karen Patton Seymour what evidence supported the claim that Stewart sought to defraud investors in Martha Stewart Living Omnimedia when Stewart issued allegedly false public statements and releases protesting her innocence in June 2002.

by TChris

Accusations of corporate fraud will continue to be tested in lower Manhatten courtrooms after Martha Stewart's trial ends. Starting Monday: the trial of John Rigas, the founder and former CEO of Adelphia Communications, and his two sons on a variety of fraud charges, including allegations that Rigas "improperly used the company's money for his own purposes - buying Adelphia stock, building a $13 million golf course and shuttling family members back and forth from a safari vacation in Africa, among other expenses."

by TChris

TalkLeft advised Martha Stewart last week not to testify. Others agree that the risks of taking the stand to tell her story outweigh the benefits, given the weakness of the prosecution's case.

The media-savvy Stewart may also think her public expects her to take the stand. Heeding that urge, however, would expose her to prosecutors' questions and the possibility of a public meltdown. And that could be fatal to her case, lawyers said.

"Cross examination is not appearing in front of a board of directors or on an analysts call. . . . The questions are going to be tough. If there's even a flash of arrogance or anger, it will be devastating to her," said Alan Lieberman, a former federal prosecutor.

But only Martha Stewart can choose, and she will have to wait before she can make a fully informed decision.

Stewart's lawyers will also almost certainly urge her to wait to make her decision until Monday when U.S. District Judge Miriam Goldman Cedarbaum says she will decide whether to dismiss the most serious charge in the case -- a securities fraud count that carries up to 10 years in prison.

As Roger and TalkLeft observed in comments to an earlier post, a dismissal of the securities fraud charge would send a message to the jury that the prosecution made a serious mistake bringing this case, leaving little reason for Stewart to accept the risk of testifying.