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MONTGOMERY, Ala., Feb. 7, 2007 -- There is little doubt that there have been problems in the past and some present day problems in the Middle District of Alabama in relation to the way jury pools are selected. That admission has been made in opinions issued in prior cases, see United States v. Clay, 159 F. Supp. 2d 1357 (M.D. Ala. 2001), and in current cases such as U.S. v. Leon Carmichael, Sr. by former Magistrate Judge Dolores Boyd and District Judge Myron Thompson in recommendations, opinions and orders, related to that particular case.
One question is -- do the issues that result in the under-representation of African-Americans in the jury pools rise to a "substantial" enough level to have denied businessman Richard Scrushy and former Governor Don Siegelman their rights under the Constitution? If what many perceive as minor problems are not eventually corrected, will they have an impact on other cases brought in the Middle District of Alabama?
Tuesday in federal court, Judge Charles Coody moved an issue which has been on the back burner of the corruption case involving Scrushy and Siegelman, who were convcted last June, back to the front burner. The judge held a conference call with counsel from all sides to flesh out some old motions related to a jury challenge over the under-representation of African-Americans on juries in the Middle District of Alabama.
Coody will eventually be providing a recommendation to Chief District Judge Mark Fuller on the jury challenge issue and while no one can predict what a judge will do, if Tuesday's hearing is any indication, the issue will probably wind up in the 11th Circuit.
Coody presided over arguments during the conference call mid-afternoon on Tuesday, Feb. 6, 2007. While the government was represented on the call by four attorneys, Mr. Scrushy by three and Mr. Siegelman by one, there were only three voices heard once the call got started. Those voices were Judge Coody and for the government Assistant U.S. Attorney J.B. Perrine and for Mr. Scrushy, Jim Jenkins.
The first item for business pertained to a motion related to a set of juror questionnaires which have apparently gone missing -- about 40,000 to be exact. In previous filings it had been determined that some of the missing data had been tracked down and there was an effort being made to reintegrate it back into the Middle District's jury selection system.
An interesting side note is that the company which designed the Middle District's computer-based jury selection program, Affiliated Computer Services (ACS) is a company the portion of which related to the jury management system operates out of British Columbia, Canada, although incorporated in Delaware and headquartered in Dallas, Texas. In her recommendation in the Carmichael case, Magistrate Judge Boyd hinted that that factor had created "unanticipated difficulties in securing and interpreting relevant discovery on computer software programs applied in the selection process."
In their brief, Scrushy attorneys have argued that Ms. Debra Hackett had advised both defense counsel and the government that ACS "had determined records regarding the approximately 40,000 questionnaires that were sent out in March of 2005 to build the 2005 Qualified Jury Wheel had not been retained on the Jury Management System (JMS) computer located in the Clerk's Office in Montgomery. They did not know why or how this occurred. Ms. Hackett advised that the only record as to the 40,000 questionnaires was a copy of the file that was sent to the third party private contractor which was hired to mail out the questionnaires. As of the date of that phone call, Ms. Hackett advised that ACS was trying to find a way to 'take that file and load it back into the system.'
This whole issue whether eventually proven to be "substantial" or not does raise the question of why a system vital to the functioning of the American legal system and Constitutional protections is for lack of a better word "outsourced" outside the United States.
Judge Coody at first indicates to the callers he thinks the motion may be moot because "everyone is in agreement that cannot be done (the reintegration) and this point is moot."
Scrushy attorney Jim Jenkins tells the judge that he and Mr. Perrine are trying to work out a stipulation and Perrine has indicated to Jenkins that information from some of the 40,000 questionnaires may have been recorded
Perrine says the clerk's office is trying to get the information but the "degree they can be successful is still unknown.."
Judge Coody says "much of what this court is going to have to decide has been considered by Judge Boyd and Thompson in the Carmichael case," which may or may not indicate the judge's thought process on this issue.
Coody asks how the questionnaire data matter would cause any change in the way the court responds to this issue.
Jenkins says, "I candidly do not think it is going to make the court's decision change" However Jenkins argues two particular issues related to the administration and software problems that plague the Jury Management System (JMS) and the non-responders in the 40,000 questionnaires.
But "certainly I don't think it will tip the balance point before the court," says Jenkins.
The judge says there is "still the potential that we cannot ultimately determine the precise numbers. Jenkins says,"Based on the ways numbers have been run in the past, I believe the clerk's office can get their hands on the data."
Judge Coody wants to know "when are we going to know?" Mr. Perrine says the "latest the end of the week..."
The judge grants the parties until the 14th, next Wednesday, to file a joint stipulation or something else with the court regarding the status of this situation.
On Friday, Feb. 9, 2007 the parties agreed to the following stipulation regarding the 40,000 questionnaires:
"In March of 2005, the Middle District Clerk's Office, through a third party private contractor, began the process of mailing out 40,000 jury questionnaires to build the 2005 Qualified Jury Wheel.
Thereafter, beginning in September of 2005, the Clerk's Office mailed out an additional 25,000 juror questionnaires to supplement the 2005 Qualified Jury Wheel. Based on inquires with Affiliated Computer Services ("ACS"), the Clerk has determined that the Jury Management System ("JMS") computer located in the Clerk's Office in Montgomery did not record the code used to identify the individuals on the 2005 Master Jury Wheel who were selected to receive one of the 40,000 initial questionnaires. The Clerk's Office has retained a copy of the file identifying the 40,000 individuals that was sent to the third party private contractor which was hired to mail out the questionnaires.
ACS has determined that this information can not be loaded into JMS retroactively.
Records regarding the response to the 40,000 juror questionnaires do exist on the JMS. These records reflect that 36,137 of the original 40,000 juror questionnaires are accounted for as follows: 17,637 were determined to be qualified and were placed in the 2005 Qualified Jury Wheel; 8,752 were determined to be excused, and were not placed in the 2005 Qualified Jury Wheel; and 9,748 questionnaires were returned by the Post Office as undeliverable. The remaining 3,863 questionnaires were not returned."
As to a motion to supplement the record, Mr. Perrine says the government does not have an objection to supplement the record with the exhibits submitted in an earlier Scrushy motion with the exception of an affidavit by Dr. James Gundlach, "an expert qualified in statistical analysis, sociological research methods, and demography," according to court records. He is the statistical expert for the Scrushy team on the jury challenge issue. Gundlach also has worked on the Clay and Carmichael cases.
Mr. Perrine says the government does object to that second affidavit because "we have not had the opportunity to cross-examine Dr. Gundlach" (on this particular affidavit). Perrine hints it should have been handled during an earlier four day hearing
The judge says the issues concern what has come to be known as the "bleed over" jurors from a 2001 jury pool who may have found their way into the 2005 pool.
Jenkins argues the defense and thus Gundlach did not have information on two jury pools at the time of a hearing early in 2006. During that hearing, according to all sides, it was essentially agreed that there were no "bleed over jurors" from the 2001 Qualified Jury Wheel (QJW).
Jenkins says at the time "the statements were in the context of juror administrator Melissa Myers and her cross examination by Mr. Perrine."
"In that testimony, she basically explained what created the factual basis. When she created the 2005 QJW she knew there were jurors in the deferral maintenance pool and she contacted Cindy Kimbrell (who was a jury administrator in the Middle District until Dec. 2000) in the Northern District on Aug 25, 2005 more than 1080 jurors were moved....
We had no documentation that there was a question, the first time we got any kind of idea there was something amiss was when we were finally furnished the last two jury pools in April 2006 the Scrushy/Siegelman jury pool -- 300 people, maybe 200, we were missing one juror history file. Gundlach began digging and found the juror in the 2001 QJW He found nine other bleed over jurors. It is on the basis of that ...what could not have been done before..we are making requests for a list of all the participants after August 25 and he can generally examine (the) numbers."
The judge again wants to know what difference this would make and questions the significance of the bleed over jurors. Judge Coody mentions Judge Thompson's decision that the number involved was "miniscule."
Jenkins says basically it's not the number of jurors involved, even if they are miniscule, but that it affected the randomness and it was a significant violation. He says he believes the number may be larger.
The judge wants to know why he should allow any evidence beyond the jury pool related to Scrushy/Siegelman.
Jenkins says he believes there are more in the jury pool than they have found to date but he has no problem with the judge modifying the request to say up to and including the Scrushy/Siegelman jury pool
Jenkins argues the additional information could in fact point out that there were more bleed overs in the 2005 QJW
Jenkins says the goal of the exercise is to "determine exactly how many 2001 jurors were in the 2005 QJW, if there was a bleed over it would show up, if no transactions occurred prior to April 2006 they would not reveal themselves."
The judge says,"Are you telling me the only way we would know was if there was some transaction with that juror, so if only 10 of them had been called we would never know?
Jenkins, "Yes sir....it would be pressure on the wheel affecting the randomness."
Judge Coody, "What I'm suggesting is it's pretty speculative as to how many there are."
Jenkins says the whole argument is no one knows "the number of bleed over" jurors. "We do know a minimum number, the ones that do have transactions, which are the ten and any others that have transactions would be revealed by this search then that would be minimum bleed over jurors and if we went on past April, we would probably catch other ones..."
Mr. Perrine says Debra Hackett has told him there aren't any others. It appears the government expects everyone to accept that as the final answer on the question.
Jenkins tells the judge that "those ten are the only ones that showed up in the pool selection reports and were pulled randomly."
Perrine says Ms. Hackett says they have gone in and searched for bleed over jurors and have taken steps to inquire and "there are no others" in the 2005 QJW.
Jenkins says "That's new information to me"
The judge says, "I'm going to order the response as indicated with the qualifications...If that information shows more than 10, I may extend the period to the entire life of the wheel." This gives Mr. Jenkins basically what he has asked for.
The judge talks about one bleed over juror #267 and it being his best information the selection pool for the Scrushy/Siegelman jury pool never reached that number and Jenkins agrees. But Jenkins argues the randomness requirement was violated by the fact that jurors got in the pool.
The judge asks if this alleged problem "amounts to a substantial violation."
Judge Coody then takes up a second issue Perrine says the judge has already granted what the defense is asking for and the judge says he will be more explicit.
Jenkins says it involves statistics as to the selection of the pool in Dr. Gundlach's affidavit.
Judge Coody then seems to take a mild swipe at Scrushy's expert, "Dr. Gundlach is fond of making conclusions, to be perfectly blunt, I think he is unqualified to make....It does not require me to do anything."
The judge went on to cite Gundlach's comment about the "clerk's deferral policy as being liberal" and Gundlach's "determination that it violates the JSSA" He says Gundlach is not a lawyer and his determination "is something he is significantly unqualified to assess." To which is heard from someone on the call "Hmmm."
In an interesting note Judge Coody made the same argument Dr. Gundlach made in his recommendation on the Clay case. It seems the judge may have been taking a swipe in general at experts who expound on things outside their area of expertise. Coody then turns around and hands the defense attorneys what they are requesting saying, "the factual data is helpful to the court and the parties," so he allows the affidavit and says the government can respond with its own expert. Mr. Perrine responds, "We responded with document 405, the affidavit of Mr. Elmore," and the judge agrees the document is there.
Judge Coody then told both sides they had until Wednesday, the 14th, to file responses and any further arguments, factual and legal, but no more affidavits - in response to the two expert reports or statements.
This issue is complicated and technical. It will most likely, as stated previously wind up at the 11th Circuit, but it is clear some more adjustments need to be made in the district's jury selection process to eliminate even the appearance of a system that is not representative of the population that makes up the Middle District of Alabama.
The government has argued correctly that no system is perfect and there will be human and computer flaws that impact even the best system. However, most parties are in agreement the process needs in the minimum some fine tuning.
Neither the government nor defense counsel cared to make any further comments concerning yesterday's arguments.
There will of course be more on this issue in the coming weeks.