Attorneys for Richard Scrushy, in what appears to be preparation for eventual appeal to the 11th Circuit, say federal District Judge Mark Fuller's inquiry into the possible introduction of extrinsic evidence into the jury process was "insufficient to explore the entire picture of the jury's exposure." More >>
main update Dec.3, 9 p.m. Original story 8 p.m. Dec. 1, 2006
Government attorneys say the action of the jurors was "harmless." Scrushy senior attorney Art Leach says, "The government does not address the Court's failure to gather the evidence that could prove their theory of the case." More >>
Well, well, well. As much as we try not to be part of the news it now appears WSFA's Courtroom Chronicles has become part of the official court record in the Siegelman/Scrushy corruption trial. Early Friday afternoon Judge Fuller granted the motion to supplement the record in the case.More >>
Continuing Coverage: Richard Scrushy/Don Siegelman
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Kilborn: "...If Your Honor would include in extraneous information any text messaging that they received about the case and not just e-mails, but text messaging. And the last one would be that obviouslyMore >>
Examination of Juror 22
BY THE COURT
(complies) I am going to hand you what has been marked as Court's Exhibit 1, and I know that that has your name on that exhibit. IMore >>
Juror 30 (Patial, More shortly) Q. During the time that you were serving as a juror did any other juror say or do anything that caused you to believe that he or she may have been exposed to extraneousMore >>
BY THE COURT
Good morning. Let me start off by again thanking you for your appearance today. I have handed you what has been marked as Court's Exhibit 2, and I believe you have already seenMore >>
Juror 66 (Excerpt taken from official transcript.) Q. Speak into the microphone so that we can hear you if you would, please, Juror Number 66. Did anyone other than another juror try to influence yourMore >>
MONTGOMERY, Ala., Dec. 1, 2006 -- In compliance with Judge Mark Fuller's order to file final briefs regarding the exposure of jurors to extrinsic information during their service as jurors in the corruption trial involving former Governor Don Siegelman and businessman Richard Scrushy by 5 p.m. today, attorneys for the former governor say the conduct in particular of jurors 7 and 40 warrant a new trial for their client.
"The Court, following established precedent, has presumed prejudice because of the jury's exposure to extrinsic information. The Government cannot meet its burden of proving that the jury's consideration of extrinsic information was "harmless" because even the Court's limited investigation reveals that Jurors 7 and 40 openly, deliberately, and repeatedly defied this Court's Orders prohibiting the review of extrinsic information. Jurors 7 and 40 obtained extrinsic information with the express purpose of supplementing the materials allowed by the Court, and they used their knowledge of extrinsic information to guide deliberations and manipulate the verdict against Governor Siegelman.
Almost every juror admitted knowing that Jurors 7 and 40 had information not available to the other jurors. Jurors 7 and 40 elevated themselves above the other 10 jurors and created an imbalance of power during deliberations. This jury did not consist of 12 equals; it consisted of two "super jurors" and 10 "ordinary" jurors who deferred to the two who possessed more information than the others. The scales of justice, once so tilted, cannot be realigned.
Jurors 7's and 40's procurement of extrinsic information was not inadvertent. They set out to obtain extrinsic information, and, in so doing, Jurors 7 and 40 opened jury deliberations to cyberspace with the same disastrous and irreversible outcome as Pandora opening her box.
Jurors 7 and 40's misconduct was not isolated. It is clear from the testimony of their fellow jurors that Jurors 7 and 40 consulted the Internet on numerous occasions. Every time these two jurors returned to the Internet, the prejudicial effect to Governor Siegelman increased exponentially."
Attorneys challenge juror 7's testimony during a Nov. 17, 2006 hearing where he claimed to have only accessed the Web site of the Middle District of Alabama to download a copy of the indictment and a description of how a foreperson should do his job.
"On November 17, 2006 (nearly 5 months after returning the verdict in this case), Juror 7 testified that, to the best of his recollection, the U.S. Middle District's official website was the only extraneous information that he consulted during this trial. [T-119, 123]
However, in an interview conducted within hours of rendering the verdict, Juror 7 stated that he had surfed the Internet looking for information regarding his duties as juror foreman:
"I didn't look up anything about the case, but I Googled to see exactly what a foreman was supposed to do, what role I was supposed to play. A foreman is to guide the process, not take sides, but make sure everybody around the table has a chance to be heard." [Emphasis added] [Exhibit 1, Lowery, Bob Foreman Describes Deadlock, 07/01/06 MontgomeryAdvertiser]"
Attorneys for Siegelman allege that depending on what search terms the juror entered into the Google search box: "it is statistically impossible that Juror 7's Google search led him to, and only to, the Middle District's website."
The filing says that the foreman's testimony is contradicted by other testimony from the Nov. 17, 2006 hearing and cite in particular testimony of Juror 66, whose full testimony you can read by clicking here.
"She is clear that Juror 7 conducted multiple Internet searches, obtained "detailed information," and interjected what he had found into jury deliberations:"
"Q: Tell me all of what you can recall that he said regarding any independent investigation that he had done outside of the Court's instructions, the evidence and the exhibits admitted into the trial of this case.
A: Okay. He said first of all he looked up the role of the foreman on the jury and just other information as related to the process of - and I guess he may have copied - gotten one of the indictments. He downloaded that and went through that and looked at each one of the cases while he was at home - each one of the charges while he was at home and when he came back he brought just detailed information about how we should consider each one of the charges and what they were saying. [Juror 66, T-51-52] [Emphasis added]"
"Juror 7 claims that he does not believe the information he researched on the Internet differs substantially from the Court's jury charges. However, his co-jurors are clear that Juror 7 brought "other information" into jury deliberations that this Court did not allow into evidence. Juror 7 guided deliberations on every charge using this extraneous information:
Q: And you say that he had other information that you believe that he got from the Internet -
Q: - about the indictment?
* * *
"Q: No, no, I don't want to know how much time he spent researching it, what I want to know is how much time did he spent with the jury talking with you about what research he had done or what information he had received outside of what the Court gave you as the evidence and the law to consider in this case?
A: I don't know if I can break down and say exactly how much time because when we went through each one of them it was always okay, well, but when you look here this says this and it's not in the book that you gave us, it's not in the indictment so - and he had his paperwork there, so each one of the charges there was information about it. So it was never okay, we are going to discuss this one charge or discuss all of the research I have done, it was each one of the charges as we went through it.
Q: And you went through it charge by charge?
A: By charge.
Q: Did you see any of the information that he brought in about the charges?
A: I didn't.
Q: And he just discussed it as you went through it?
A: Like I said, he didn't read it, you know, I mean, but you can - he took it out of his jacket or whatever or something so he had it and he was reading from it.[T-54-55, 57] [Emphasis added]"
Attorneys go on to cite testimony from Juror 38 (Click here for complete testimony) and what may have been discussion of WSFA's trial blog of the proceedings, the Courtroom Chronicles - which are now part of the court record.
"Q: During the time that you were serving as a juror did any other juror say or do anything that caused you to believe that he or she had been exposed to extraneous information about this case from any source?
A: Yes, sir.
Q: Tell me what you know about that.
A: There was one of the jurors said that they had been on the Internet and - well, it was like one of the TV stations had all the proceedings was on the Internet, you could go read it, and that was mentioned. And that's the only thing that I know of that they had read what was going on in the court. I mean it wasn't anything else besides what had happened here." [T-38] [Emphasis added]"
Attorney David McDonald says in the brief that Juror 7 gave an interview with an Auburn paper in which he demonstrated "a working knowledge of legal terms that this Court never defined." McDonald also says other testimony from the Nov. 17, 2006 hearing indicated the juror had researched another defendant who was found not guilty in the case. McDonald says seven jurors indicated that Juror 7 had "conducted research on the Internet." Juror 7 in his hearing testimony says he only read the information from the Middle District's Web site. But McDonald is not only upset with Juror 7's alleged actions.
"Even though it was common knowledge throughout deliberations that the jury foreman had deliberately and repeatedly violated this Court's Order prohibiting independent research, no juror ever reported this violation to the Court."
"Juror 7 enjoyed such an elevated status on this jury that his fellow jurors followed his lead and even re-voted for him to remain jury foreman - knowing that he had violated this Court's Order. Juror 7's misconduct has hopelessly tainted this verdict."
As to the issue that the government is burdened to prove that the information accessed by jurors was not prejudicial to the defendants, McDonald argues:
"Whether true or not, Juror 7 led the other jurors to believe that he had more information about how to conduct deliberations than they did. And, it became clear at the November 17, 2006 hearing that the 10 jurors who followed this Court's Orders deferred to the two jurors (7 and 40) who repeatedly violated the Court's Orders. The Government cannot demonstrate that the introduction of this extrinsic information into jury deliberations was "harmless."
Siegelman's attorney next turns his attention to the testimony of Juror 40 and says her testimony (all of which may be accessed here) is also contradicted by her prior statements to the media.
At the November 17, 2006 hearing, Juror 40 testified that she saw an article regarding the trial in the Montgomery Advertiser but did not read it. [T-77] However, in an interview shortly after the trial, Juror 40 confessed to having read an Internet article:
Q: You couldn't watch any news. You stuck to all that?
A: I did. I saw one Iter - I did see one Internet article. So, I'll confess.
Q: By accident?
A: It was - it was - yes, it was almost by accident. It was - after I saw the headline, I was oh, I wonder what that says. But I really did try very hard. [Exhibit 5-B] [Emphasis added]"
McDonald says articles in the Montgomery Advertiser around the time Juror 40 was admittedly looking at an article on the accreditation of Faulkner's law school "quote the acting U.S. Attorney making numerous pejorative statements about the Defendants which most certainly would have prejudiced even the least impressionable juror." Those articles are also now part of the record of the case. Judge Mark Fuller granted the request by attorneys for Richard Scrushy to supplement the record in the case and the Siegelman attorneys joined in the motion to supplement the record.
McDonald goes on to talk of other jurors contradicting Juror 40's testimony and then talks about alleged e-mail traffic between Juror 40 and Juror 7. Judge Mark Fuller has steered clear of most discussion about the alleged electronic communications between jurors and made clear during the Nov. 17, 2006 hearing he did not want to go down that path, at least at that time. The alleged e-mails sent to attorneys have not been authenticated nor has the judge, as far as is known, subpoenaed records that would confirm or deny the authenticity of the alleged communications.
Both Juror 40 and Juror 7 admit to downloading a copy of the indictment and McDonald claims the downloaded indictment "differed substantially from the indictments the Court gave to the jury" because one count against Siegelman and one count against Scrushy was dismissed.
"The Indictments downloaded by Jurors 7 and 40 differed from the Indictments the Court gave to the jury on the very Counts that the jury ultimately convicted Governor
Siegelman and Mr. Scrushy. The Court required the Government to elect which claims to pursue against Messrs. Siegelman and Scrushy. Accordingly, the Government dismissed one Count each against Siegelman and Scrushy, and the Court submitted a revised Indictment to the jury. However, Jurors 7 and 40 used their copy of the wrong Indictment (as well as other information obtained from the Internet) to guide jury deliberations after the jury indicated that it was deadlocked. [T-54-55, 59]
This Court cannot reach any conclusion other than that absent Juror 7 and 40's improper downloading of the wrong Indictments and their use of these Indictments during jury deliberations, this jury would have either acquitted Governor Siegelman or at least hung on the few Counts on which Governor Siegelman was convicted."
Mr. McDonald finishes his arguments as follows:
"The overwhelming evidence is that Jurors 7 and 40 - the only two jurors to grant public interviews following the trial, the only two jurors to repeatedly and deliberately violate this Court's Orders, and the only two jurors to conduct Internet research throughout this trial - were the two jurors that led jury deliberations and orchestrated this verdict. By their actions, Governor Siegelman was deeply prejudiced by the jury's consideration of extrinsic evidence that was not subject to the Court's "full judicial protection of [Governor Siegelman's constitutional] right of confrontation, of cross-examination, and of counsel." Farese v. United States, 428 F.2d 178, 180 (5th Cir. 1970); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984). The Government cannot prove that Jurors 7 and 40's misconduct was harmless, and Governor Siegelman is entitled to a new trial."