Plea Bargain Testimony

[Pangloss]

Simple question: Should the testimony of convicted criminals who have been offered a plea bargain in exchange for their testimony be sufficient on its own for the prosecution of a third party, given the absence of any other evidence?

 

60 Minutes did a piece last night about Richard M. Scrushy, the CEO of HealthSouth who is currently on trial for fraud after his company apparently cooked the books. The jury is deliberating today.

 

The evidence against Scrushy consisted entirely of the testimony of five HealthSouth CFOs, all of whom plead guilty in plea bargain arrangements to testify against Scrushy, who claims ignorance of their deception. This of course follows on the heels of public outrage over the collapse of the Internet bubble, the high salaries and stock options paid to CEOs, and the corruption cases against other major corporations.

 

Mike Wallace did something really evil in the interview. He hit Scrushy with statements from the CFOs one at a time, in sequence. Nasty.

 

The wierd thing of it is that, if I remember correctly, 60 Minutes just did a story a few weeks ago about how plea bargain deals are hurting the justice system. Of course their example that time was a poor black man who claims innocence. Oddly, they didn't hit him with the statements of his accusers. Gee.

[Skye]

As a general rule, I would say no. I don't think you can trust people to be entirely truthful in that situation.

[Douglas]

Interesting question. Since the 5 CFO's are proven criminals through deception, then by definition they're proven liars....I think.

 

Is it possible to cook the books without the CEO knowing it....probably yes, but what would be the point of it....no point that I can see.

 

IMO, though the 5 CFO's are liars, but there's no good reason why the CEO didn't know about the cooking, then the testimony of the liars should be allowed.

[Pangloss]

The CFOs were stock recipients, so there's your motive.

 

I think the question of why the CEO didn't know is a good one. But you're basically trying to prove a negative there. It's a good reason to suspect him, but (IMO) not a good reason to convict him. It seems to me that they need some kind of evidence.

 

I'm not really interested in defending this guy, I'm sure he's a scum bag and hopefully they do have some other evidence. Mostly I just think the evident hypocrisy here is interesting.

[Phi for All]

Simple question: Should the testimony of convicted criminals who have been offered a plea bargain in exchange for their testimony be sufficient on its own for the prosecution of a third party, given the absence of any other evidence?

Unfortunately, yes. In these book-cooking instances, it's often the only way to get at the person who gave the nod to the illegalities. I wish there was some way to always insure that the testimony was not completely fabricated in order to get a lighter sentence, but in many cases like the one you mention, the CEO is like the commanding officer in the military, and is ultimately responsible for the actions of those directly under him in the chain of command.

 

The plea bargain is a hideous arrangement, imo, but when it nabs those who would otherwise be untouchable, it must be tolerated.

[Pangloss]

So it's okay to convict someone on circumstantial evidence, so long as it's the only way to get that conviction?

[Phi for All]

So it's okay to convict someone on circumstantial evidence, so long as it's the only way to get that conviction?

Fingerprints on a smoking gun are circumstantial evidence. The victim's blood in a trail of footprints leading away from the body directly to your shoes is still circumstantial evidence.

 

Eyewitness testimony of another's deeds is not circumstantial evidence. Or did I miss something? Weren't the CFO's testifying that Scrushy knew about the illegal bookkeeping in some direct manner? I guess I got that inference from your OP, since I'm not that familiar with the case.

[Pangloss]

So it's okay to convict someone based solely on the testimony of plea-bargained witnesses, so long as it's the only way to get that conviction?

[Douglas]

They convicted Scott Peterson on circumstantial evidence.

 

As for this case, it seems that if the CEO's defense can prove that the CFO"s "gain" would be much greater if the CEO didn't know about the cooking....then fine, let the CEO go loose. If not, then cook the CEO on circumstantial evidence.

[Phi for All]

So it's okay to convict someone based solely on the testimony of plea-bargained witnesses, so long as it's the only way to get that conviction?

Aye, there's the rub. Understanding that the eyewitness testimony is suspect due to the bargain they receive in giving it, it makes it tough unless, by their testimony, the prosecution is able to uncover evidence (yes, even circumstantial) which corroborates the witness account of matters.

 

If it comes down to a case of your-word-against-mine, the testimony will probably be thrown out anyway. If the testimony digs up more dirt, or raises inconsistencies, or causes the defendant to break down at the trial screaming, "YES, I DID IT, I TOLD THEM TO COOK THE BOOKS, MWA-HA-HA-HA!", then yes, I think it's okay to use plea-bargained testimony for a conviction.

 

Isn't it really the idea of letting the smaller fish off the hook to catch the big one that really rankles? I mean, they were just as guilty even if they were following orders from the CEO. To me, it would seem to encourage this sort of thing, especially if CFOs get the idea that they will incur minimal risk as long as they rat out the big guy.

 

Who knows, might it not be the financial guys who come to the CEO with book-cooking schemes in the first place, hoping to get the nod and a fat performance bonus from the board of directors come Xmas time?

[Pangloss]

Yeah I totally blew it above using the word "circumstantial". Can we get past that please?

 

I think I'm asking a really important question here. Is it worth it to toss objectivity out the window specifically because other evidence is lacking?

 

Why is it okay to dismiss tainted evidence, but not obviously tainted testimony? It's okay just because "they are otherwise untouchable"? How can that be the answer in a system that touts "equal justice under the law"?

 

Not trying to blast on Phi -- his opinion seems to be a very common one, and he seems to be applying it in a reasonable and even-handed manner (i.e. I assume he would also apply it to a drug dealer from a poor neighborhood who couldn't be convicted on other evidence) -- I just can't figure out why it would ever be okay to set aside the concept of blind justice.

[Pangloss]

Aye' date=' there's the rub. Understanding that the eyewitness testimony is suspect due to the bargain they receive in giving it, it makes it tough unless, by their testimony, the prosecution is able to uncover evidence (yes, even circumstantial) which corroborates the witness account of matters.

 

If it comes down to a case of your-word-against-mine, the testimony will probably be thrown out anyway. If the testimony digs up more dirt, or raises inconsistencies, or causes the defendant to break down at the trial screaming, "YES, I DID IT, I TOLD THEM TO COOK THE BOOKS, MWA-HA-HA-HA!", then yes, I think it's okay to use plea-bargained testimony for a conviction.

[/quote']

 

I don't have a problem with introducing plea bargained testimony, I'm just concerned about the reportedly growing number of cases, mostly affecting people who can't afford decent representation, in which that's the *only* evidence.

 

 

One point that I can probably raise against my argument is the idea that this stuff still has to be debated by a jury. In the end it should be possible for a jury to weigh the relative merits of such evidence and decide if it's enough to warrant conviction. The only problem I have with that is that their decision is not based on precedent, consistent application of law, or fairness and equality on a conceptual level. Their decision is based entirely on the merits of the individual case.

 

Somebody has to be able to decide at a higher level than that if the case should be brought in the first place.

[Douglas]

I think I'm asking a really important question here. Is it worth it to toss objectivity out the window specifically because other evidence is lacking?

But in this case, what evidence could there be? the only evidence is...that the books were cooked, that's about it. Since the 5 CFO's confessed their involvement, then why wouldn't the CEO be involved?? Unless he had absolutely nothing to be gained by the burning.

 

Why is it okay to dismiss tainted evidence, but not obviously tainted testimony?

Yes, tainted evidence seems pretty easy to dismiss...as in OJ's blood. Hasn't tainted testimony been dismissed in Jackson's trial??...not sure.

I guess it depends on who the tainter and taintee are.

[Pangloss]

Well that's not the case in the Ken Lay prosecution, Douglas. They have physical evidence in the form of written and electronic communication, as I understand it, as well as the testimony of people who aren't being charged with a crime (and therefore aren't receiving plea bargain deals).

 

I haven't read anything comprehensive on this specific subject, but I would imagine that there have been a lot of cases where CEOs were nailed by paper trails.

 

Edit: Come to think on it, Martha Stewart was nailed by a paper trail and non-indicted testomony as well.

[Phi for All]

Well that's not the case in the Ken Lay prosecution, Douglas. They have physical evidence in the form of written and electronic communication, as I understand it, as well as the testimony of people who aren't being charged with a crime (and therefore aren't receiving plea bargain deals).

Since you bring up Enron, I've heard that if the US Bankruptcy court hadn't allowed Enron Online be sold to UBS Warburg (a Swiss corporation, I believe), the evidence in that subsidiary alone would have been enough to put Lay away for the next century. It was quietly done for no money down.

 

I think, since the deal entitled Enron to a percentage of future profits, the records should have been obtainable through extradition. But the Swiss have some pretty strict laws and we can't force them to do it. Or we don't want to force them to do it. Or somebody knew we wouldn't want to force them to do it.

 

Or something.

[Pangloss]

Since you bring up Enron, I've heard that if the US Bankruptcy court hadn't allowed Enron Online be sold to UBS Warburg (a Swiss corporation, I believe), the evidence in that subsidiary alone would have been enough to put Lay away for the next century. It was quietly done for no money down.

 

Ok, I'm always open to a change of subject. What are you implying or suggesting?

 

 

BTW, your argument above also delves deeply into two-wrongs territory.

[Phi for All]

I don't want to speculate too much, since it is just that. Since UBS Warburg will not allow an audit of the books of Enron Online from before its acquisition in 2002, we'll probably never know. But since Enron was a prime candidate for book-cooking, it's very suspicious that it was allowed to be sold quietly in a sweetheart deal to a foreign corporation, rather than trying to get more money out of it through the bankruptcy courts.

http://www.computerworld.com/managementtopics/ebusiness/story/0,10801,67584,00.html

 

http://www.washingtonpost.com/wp-srv/liveonline/02/business/business_williams0204.htm

 

Pangloss, you had brought up the question of whether or not tainted testimony should be allowed when it seems to be the only evidence. When the US Bankruptcy court allows an asset to be sold off before an investigation into its bookkeeping practices can be launched, sometimes tainted eyewitness testimony is all you've got. And when we can't even get the books audited with the aid of a friendly nation like Switzerland, it makes me wonder who the system is helping.

[Pangloss]

Oh, I see. Well that's as reasonable a line of inquiry as any. I think you're inquiring in a somewhat predisposed manner, though. Do you want the truth, or do you want something that supports your position?

 

What if the information you believe is hidden reveals a connection between the Enron corporation and the current administration at the time? You know, the one that was in charge of the country from 1993 to 2001, when most of Enron's shenanigans took place?

 

(dangle, dangle) ;-)

[Phi for All]

Oh, there's no love lost between Clinton and I. I think he did his share of selling out to big business. As I've said many times before, mega-corporations pay to stay in the faces of politicians in a way voters do not.

[Douglas]

You know' date=' the one that was in charge of the country from 1993 to 2001, when most of Enron's shenanigans took place?

 

(dangle, dangle) ;-)[/quote']

That's odd, I thought Enron was Bush's fault, along with Chaney being a dupe for Haliburton.

[Pangloss]

Enron was Enron's fault. But most of what happened with Enron happened on Clinton's watch, and could have been addressed by an alert administration that was actually interested in doing something about corporate corruption rather than measuring the merits of every prosecution by the level of donation to the Democratic party. (Voters in Florida didn't forget, though -- Janet Reno's run for Governor was a joke.)

 

And, in fairness, nobody wanted to do anything that might burst The Bubble.

[Phi for All]

Government corruption is tied directly to big business interests and always has been. Very few people seek power in government for its own sake. Making or manipulating the rules to benefit those who have the money to pay for it is all too common, probably in every country.

 

It is so hard to tell a valid contract for "consulting services" never rendered from a kickback. And unless flags are raised that signal something fishy to auditors, it's apparent that billions of dollars can be illegally manipulated by reporting false numbers, "filling the gaps", and padding executive performance bonuses, and in a fairly short period of time at that.

 

To bring this all back to the OP, isn't the common thread that many of these mega-corps have figured ways to wiggle through our legal system? Isn't the use of plea-bargained testimony simply the last ditch attempt to put the perpretrators behind bars where they belong? They are so good at working the system and are so ultra-rich they can afford legal defenses that stagger the imagination. Are we supposed to let them go free as long as they have covered themselves well enough? How many more are out there who are below the radar of federal auditors, who play the game of screw-the-market-protect-the-stockholders much better than Lay or Scrushy?

[Pangloss]

It's not just big business that corrupts government. Special interests often represent non-corporate entities and belief systems. Religion would be one example of that. First amendment orgs would be another. That's not to say that all influence is evil, either. But the problem is not corruption per se, but rather the negative aspects of influence. We don't have a standing problem with corruption (just too-regular outcroppings of it). But we do have a standing problem with influence by special interest groups, imposing the will of minorities over the majority.

 

And it comes from both sides. The left is every bit as bad about "legislating morality" as the right is. And let's not forget that if there's one thing about the Bush administration that all sides should be able to agree on it's that big business doesn't get a pass on corruption no matter how much it donates to political parties.

 

Anyway, getting to your question:

 

Are we supposed to let them go free as long as they have covered themselves well enough?

 

The question I've asked in this thread is this: Is this question (the one you've posed above) more important than the question of equal justice under law? Is it more important to put people in jail than it is to ensure that one is innocent until proven guilty?

 

By all means, we should go after corruption and fraud wherever it lies. But we should never do so in such a manner that compromises our most important founding principles.

[Douglas]

But we do have a standing problem with influence by special interest groups, imposing the will of minorities over the majority.

 

And it comes from both sides. The left is every bit as bad about "legislating morality" as the right is.[/quote

That's how I see it, c'ept the left is a little worse than the right.

[Pangloss]

I just wanted to follow up on the Scrushy case by mentioning that the jury appears to be hung. They've told a judge three times now that they can't reach a verdict.

 

Some info here:

http://online.wsj.com/article/0,,SB111712341667444154,00.html?mod=rss_whats_news_us