Courtroom Conduct by Spectators

Abstract

This Article examines courtroom conduct by trial spectators and proposes a protocol for dealing with it. Such conduct can be powerful, in part because it is irrebuttable. Although the United States Supreme Court addressed the issue of courtroom conduct by spectators in its recent decision, Carey v. Musladin, there is no recognized method for dealing with such conduct. This Article suggests a method.

Part I of this Article focuses on one case study, a recent fraud trial, to highlight how such conduct impacted the rights of the parties. The fraud trial profiled is United States v. Richard Scrushy. This was a significant prosecution, for the government, for the defendant, and for one of the largest health care companies in the United States. Scrushy was charged with 85 federal felonies alleging that he master-minded a $2.7 billion fraud. The charges included conspiracy, securities fraud, wire fraud, mail fraud, and money laundering, and false certification, a crime created by Sarbanes-Oxley. The Scrushy case was the first prosecution under Sarbanes-Oxley. At age 55, if convicted, Scrushy faced the rest of his life in prison, as well as forfeiture of millions of dollars of assets.

The case was significant for HealthSouth, the company Scrushy founded and whose financial status he was accused of concealing. At the time of Scrushy's indictment, HealthSouth was the largest rehabilitation hospital in the United States. HealthSouth shareholders, creditors, employees, vendors, and business partners were jeopardized by the prosecution of Scrushy.

The case was also significant for the United States Department of Justice. HealthSouth's fraud presented new legal theories, affected thousands of employees and shareholders, generated considerable publicity, and required a large expenditure of DOJ resources.

Part II reviews the case law on courtroom conduct by spectators beginning with the recent Supreme Court decision in Carey v. Musladin. Part II continues by examining the current law regarding admission of character evidence and the "curative admissibility" doctrine. Part II concludes by proposing a protocol combining these two legal theories for dealing with courtroom conduct by spectators. Part III of this Article applies the proposed protocol to the Scrushy trial.

Keywords: white collar crime, evidence, courtroom conduct by spectators