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Sunday, August 12, 2007

For Rigas to get new trial, court must be convinced of lie
August 12, 2007

If a star federal government witness says one thing on the stand, causing a defendant to go to jail, but later says something else in a lawsuit, is that sufficient grounds for the defendant to get a new trial?

Not necessarily. Mark Zauderer, a trial attorney at Flemming Zulack Williamson Zauderer in New York City, says federal judges are loath to order new trials on the basis of recanted testimony.

"Courts understand that witnesses, for many reasons, sometimes tell a different story at a different date," Zauderer says. "That doesn't necessarily mean that what they said at trial was untruthful."

To get a new trial, he says, a court has to be convinced that testimony by a key witness was false and that the jury verdict likely would have been different if not for that false testimony. "It's a high bar."

Still, Zauderer says, it can happen. "It all boils down to the horse sense of the trial judge."

Adelphia founder John Rigas, 82, and his son Tim, 51, were convicted of securities fraud and are to report to prison today for 15 years and 20 years, respectively.

The Rigas family attorneys have asked for a new trial on the basis of what they say is contradictory testimony by James Brown, Adelphia's former vice president of finance, in a recent civil trial. During the Rigases' criminal trial, Brown testified that he repeatedly lied to auditors and investors to make the company look better on paper than it actually was. In the civil lawsuit, Brown said he did not lie, according to the Rigases' filing.

The government has until Sept. 7 to respond.

Zauderer reviewed the filing at Gannett News Service's request. In an e-mail, he noted that it's hard to assess the strength of the Rigases' arguments without seeing the government's response. It's "somewhat like trying to applaud with one hand."

The arguments "are well presented," he wrote. But because of the court's test, "They have a mountain to climb to win a new trial."

Brown declined to return calls.

His lawyer, Jonathan Bach, says any suggestion that his client's testimony was untruthful "is unlikely to withstand scrutiny."

Bill Johnson, chief of the securities and commodities fraud unit of the U.S. Attorney's office in New York, which prosecuted the Adelphia case, declined to comment.

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