Accounts of Scrushy's performance on the stand has taught us at least one thing here at Legal Schnauzer: Scrushy and former Alabama Governor Don Siegelman should have testified in their own defense in the Montgomery criminal case that resulted in their convictions.
According to press reports, Scrushy did not crack under intense cross examination from shareholders' attorney John Haley, described by The Birmingham News as one of Alabama's "shrewdest litigators."
The civil case marked the first time that Scrushy had testified about the massive accounting fraud that nearly sank HealthSouth. In the end, it appears that Haley barely laid a glove on Scrushy.
The former CEO did not back down under stiff questioning, making a compelling case that he was one of the largest losers in the HealthSouth fraud.
Perhaps the strongest part of Scrushy's testimony came when he discussed his plans for mergers during the fraud period:
There were big plans for HealthSouth mergers during the fraud period, and Scrushy never objected to showing the books to outsiders.
In 1999, he said, he was deeply involved in merger talks with an Ohio-based nursing home company. Scrushy lawyer Jim Parkman produced a 20-page memo from Scrushy to the other firm's chief that contained detailed financial and operational notes on HealthSouth.
"Why would a CEO involved in fraud produce this document?" Parkman asked.
"You wouldn't do it," Scrushy said.
No one that I'm aware of ever has disputed that Scrushy is a bright, tough individual. Now we know that he also is a strong witness when questioned under fire. We also know that Don Siegelman is a pretty sharp fellow, one who almost certainly would make a strong impression on a witness stand.
All of which makes us think lawyers in the criminal case made a huge mistake by not having their clients take the stand in their own defense.
If Scrushy can fight off John Haley, he surely would have had little trouble against the ding dongs prosecuting the government's case for U.S. Attorney Leura Canary in Montgomery. If Siegelman can mount the kind of effective public offensive he has shown after his conviction, he surely would have made a strong case on the stand--probably preventing the conviction in the first place, even with a corrupt judge like Mark Fuller in charge.
I'm sure the Scrushy/Siegelman lawyers had valid reasons for not having their clients testify, and we have speculated about what some of those were. It seems clear the government had not proven its case, so declining to testify probably made sense at the time. Also, defense testimony would have dragged the trial out and possibly tested the patience of jurors.
From where I sit, having a defendant decline to testify makes sense when you have a client who maybe isn't terribly articulate, has a criminal history, or is likely to make a negative impression on a jury. But with smart, articulate clients like Scrushy and Siegelman, I'm thinking it was a huge mistake to not have them testify.
Former Auburn football coach Pat Dye used to say that "hindsight is 50-50, " and that's what I am using here. But think how easily the prosecution's key points could have been countered.
Nick Baily said he asked Siegelman, "What's (Scrushy) going to want for (his check)?" and the governor replied, "The CON board"?
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