Scrushy Attorney Asks for Access to Certain Transcripts and Records: Judge Grants in Part and Denies in Part - WSFA.com: News Weather and Sports for Montgomery, AL.

story originally filed 10:17 a.m./11-27

Scrushy Attorney Asks for Access to Certain Transcripts and Records: Judge Grants in Part and Denies in Part

MONTGOMERY, Ala., Nov. 27, 2006 -- Federal Judge Mark Fuller has Granted in part and DENIED in part a motion put forth by attorneys for Richard Scrushy on Friday.  In Friday's court filing, attorneys for businessman Richard Scrushy asked for the unsealing and access to certain court transcripts and records.  The request was signed by the senior attorney for Mr. Scrushy,  Art Leach.

The request was made, according to the Defedant's court filing,  so that "Defendant may effectively present argument to this Court in his brief to be filed by December 1, 2006."

One request concerned the October 31, 2006 hearing at which Juror #5 gave testimony in "the Court's robing room, and outside the presence of everyone but one representative of each party."  That portion of the transcript was sealed and the attorneys have been advised by the court reporter that they may not have a copy of that portion of the transcript unless the Court directs it.

"In light of the testimony of Juror 5 at the hearing held before this Court on November 17, 2006, Defendant additionally submits that there is no longer any need for this portion of the transcript to remain sealed.  In light of that testimony, Defendant respectfully submits that the information in the sealed portion of the transcript is relevant to and necessary for a full understanding of Juror 5's testimony, and that there is nothing in the sealed transcript that would embarrass Juror 5 or that would reveal any otherwise confidential information concerning that juror or any other juror.  As a consequence, and in the alternative to the relief requested in (paragraph 8), supra, Defendant requests that this Court enter an Order unsealing the remaining portion of the October 31, 2006 transcript."

In his order, also dated Nov. 27, 2006, Judge Fuller partially grants the request as outlined below:

"To the extent that Defendant Richard M. Scrushy's Motion for Leave to File Motion to Unseal and for Access to Transcripts or Records seeks entry of an Order granting the parties to this case access to portions of the October 31, 2006 hearing currently under seal, it is GRANTED; however to the extent that it seeks entry of an Order removing the seal from the information more generally, it is DENIED.  Accordingly, any document filed by the parties making reference to any of the sealed portions of the hearing must be made under seal."

The filing goes on to say that access to that portion of the record is "necessary to effectively represent Defendant in making arguments relating to the jurors' exposure to extrinsic evidence in the December 1, 2006 brief in that the ability of Juror 5 to read and write the English Language is relevant not only to this Court's questioning of Juror 5 in the November 17, 2006 hearing, Juror 5's ability to answer those questions, Defendant's November 17, 2006 objections to the Court's questioning of Juror 5, and the validity of Juror 5's answers in his two affidavits, (Defendant's EXHIBITS 8 and 9), but also as to Juror 5's qualification to serve on the jury in this case."

In his November 17, 2006 testimony, Juror 5 appeared to contradict statements he had made in earlier testimony and in his affidavits.  In the latest hearing, he said no one said anything to him or showed him anything outside of what was provided by the court.  He then changed his answer to yes saying there was something brought in from outside. 

"It wasn't anything she(Juror 40) had..just what she said...someone said because of all the information she had she had to have gone on the Internet...she said she went and looked up a book...she went on the Internet to find the book that you had gave the foreman."  He says a copy of the book given to the foreman was made and given to the rest of the jury by the court.  "That was all that was said about it...there was only one copy...before you gave us all a copy."

"That was all she said she's done..she just said she looked at the book you gave the foreman."

He says he never saw her bring anything in to the jury room and he is not aware of any other extraneous information. 

At the same hearing, Mr. Leach was apparently concerned about the testimony of Juror 5 who was not as strong on the witness stand as his previous affidavits indicated he might be.

"We ask that you bring back in #5, I think today he was struggling to understand the Court's testimony...his prior testimony and the testimony taken in chambers....he was struggling today and I would ask you walk him through some things...he spoke in the past that his affidavit was accurate..," said the attorney during the hearing.

The filing also asks for "a copy of the testimony of Juror 5 during voir dire in these proceedings."

Additionally the motion asks that the court reporter be allowed to "place the Juror numbers in any transcript in which a juror's name appears.  The alternative procedure, which is simply to replace the Juror's name with "xxxxxxxx," will result in an incomplete and confusing record.  Defendant submits that so long as all Juror names are replaced by Juror numbers, there is no need to seal the transcript to protect the privacy of any juror, and that it should be filed as a public record in this case."

To the extent the motion "seeks entry of an Order directing that all transcripts referring to jurors do so by reference to juror number rather than by name or XXXXXXXX, it is GRANTED," according to Fuller's order.

Finally, the motion asks that "this Court provide...counsel with access, under seal, to a copy of Juror 5's jury questionnaires.  This would include Juror 5's original jury qualification questionnaire and the supplemental written questionnaire that was sent to all prospective jurors in this case."

The filing says the Court required attorneys to destroy all copies of juror questionnaires once the jury was empanelled. The attorneys say they have no objection to the questionnaires being made sealed exhibits "in regard to Defendant's motion for a new trial provided that Defendant is granted access to that material."

This request, according to the judge's order is denied.  "All other relief requested by Defendant Richard M. Scrushy's Motion for Leave to File Motion to Unseal and for Access to Transcripts or Records is DENIED."

Reported by:  Helen Hammons

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