Friday, June 9, 2017

Summer's Snow-Storm Of Mr. Shkreli's Pre-Trial Motions: In Full-On "High Dudgeon," Now... [H/T PathoPhilia!]

As the government's lawyers -- and Mr. Shkreli's -- trade barbs over whether his on the record, and in many cases sworn statements (i.e., under oath), in SEC interviews, and FINRA proceedings -- from his own lips. . . ought to be read to the jury in a few weeks. . . .

I struggle with whether to disclose here the actual substance of any of them -- on the tiny chance that the government is denied the right to read them at trial. For now I will keep my own counsel, and fall silent, on the substance. The balance of this post is procedural, then:

Of course, Mr. Shkreli could take the stand in his own defense, but I'll bet $100 to $1 that he won't. So Mr. Shkreli's lawyers are trying to get some largely irrelevant, but more flattering, testimony in front of the jury -- via supplementing these statements, by stipulation.

It's an old strategy -- but it may be at least partially effective, as to at least a couple of these very-damaging admissions, from his own mouth. The stipulations putatively "clean up" some of the worst of it, or offer explanations -- also from his own mouth -- and most of all, deflect jurors' attention, away from false sworn statements about selling or redeeming securities -- without Mr. Shkreli subjecting himself to what would doubtlessly be withering cross-examination at trial, live on the stand.

Now we wait to see how the able Judge Matsumoto rules -- and whether she hears argument on any or all of it, prior to the trial's opening day.

. . . .The Second Circuit has expressly held that “a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it.” [citations omitted]. . . . In other words, “the Government generally has a right to present evidence of a fact that a defendant would prefer to admit, so as to establish the ‘human significance’ of the fact and ‘to implicate the law’s moral underpinnings. . . .’”

"[The Government] is not obliged to accept an adversary’s ‘judicial admission’ in lieu of proving the fact. . . particularly in the context of a criminal prosecution where the accused seeks to stipulate to an element of the crime charged”; 9 Wigmore, Evidence § 2591 at 824 (Cadbourn Rev. 1981) (“a colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of her/his evidence”). . . .

The above is from the able Brooklyn AUSAs' latest moving papers. Pop the popcorn, folks. . . and the ice-cold Coke and hot french fries, if you prefer. But I'm closing out. . . cold -- as this was posted on another property of mine overnight.

I'm out -- with the clever (and corrected) turn of phrase added by PathoPhilia -- to the title!

[I'll be scarce through Monday -- with aforementioned family duties -- despite loving every instant of Mr. Comey's measured, level-headed and devastating take-down of 45. (45 tweets: "Vindicated," -- my arse.) Eight months now, until Mr. Mueller returns, with "a true bill". That's my bet. See ya' 45. It's all over, except for the shouting.]


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