Scrushy lead attorney Art Leach says he knew sitting in the courtroom that "it was not good" when the jury returned a "guilty" verdict on former Governor Don Siegelman on count three of the second superseding indictment.
It's been a week of roller coaster emotions for Leach. On the weekend prior to the verdict being announced he traveled home to New York where he surprised his parents with a party celebrating their 55th wedding anniversary. Leach says the party came as a "complete surprise" to his parents but the "party was wonderful. Dad cried and mom stood in silence." It was an "incredibly difficult" weekend in regards to travel and in another way as he had to take his daughter Jessica, who spent two weeks with him here in Montgomery, back to Atlanta and drop her off. Then came the verdict.
Jim Parkman, who helped defend Richard Scrushy in the HealthSouth case in Birmingham, says he was "shocked and stunned" when he first heard the verdict. Parkman said earlier in the day, after learning a verdict was on the way, that he thought the defendants would all be acquitted. "I guess I have to eat my words," says Parkman.
However, Leach says what happened Thursday is all part of the process. "Look, we're part of the judicial system and we understand that the jury returned a verdict. We disagree with it and we're very disappointed by it. But, we understand how the process works and we've got to move on from here." Leach says, "We are going to fight another day."
Moving on will include slowing down a bit and doing some evaluation of things.
Leach, who used to love trying RICO cases as a prosecutor, believes Scrushy should never have been in "this RICO case." Leach says the jury didn't return any verdicts with regard to the RICO or the RICO conspiracy, "that material is highly prejudicial to Richard Scrushy. We should have been tried separately." He believes the government has got a "real legal problem" on its hands with regards to not severing out Scrushy from this trial.
Leach contends there is also a legal standard that has to be considered.
As for Mr. Scrushy, he says he is very disappointed. "Many people don't know this. I took a lie detector test and passed it with flying colors. It's not right what happened here. We're very hurt for our family...there was no evidence to tie me to any of these charges... I intend to continue the legal process until we are fully vindicated."
According to Leach, there will be formal documents filed that have to do with all the appellate issues. He says the severance issue is the "most serious issue right now." There is also the issue of the jury challenge which is yet to be ruled on by the court. A similar challenge put forward in the Carmichael case was denied Thursday.
Judge Fuller is also yet to rule on the Rule 29 motions and the judge said in a late afternoon hearing that he would issue a written order concerning those motions and advising attorneys how to proceed with those matters. He also said actions would not be required prior to 30 days from today's date.
Leach and Siegelman RICO specialist Robert Blakey both asked the judge to stagger and give time to the Rule 29 motions, having to do with dismissal, and the Rule 33 motions, having to do with asking for a new trial. The government wants all the motions done at the same time but the defense lawyers say whether or not to do Rule 33 motions is a strategic decision.
Leach told Judge Fuller he also needed time to "talk to the client and the other lawyers as to what we're going to do." Mr. Leach requested the Rule 29 motions be done first and then a two-three week period be granted prior to doing the Rule 33 motion.
Friday Fuller issued an order giving defendants until August 4, 2006 to file supplemental briefs on their Rule 29 motions. He is giving the United States until August 18th to file responses to the motions and then defendants have until August 25 to reply to the U.S. response to the defense's supplemental motions. "The Court will consider the briefs and then decide whether further oral argument will be necessary."
The Rule 33 motions for a new trial must be filed by the defense before September 29, 2006 with the government response due on or before October 13. Defendants must file their replies to the government responses by October 20, 2006.
During the same hearing Judge Fuller ordered the bail tickets for the defendants to be placed under seal until further order from the court. The judge also sealed the modified conditions of release. Mr. Leach asked if a letter of credit could be substituted at some point in the future. Fuller told Mr. Leach he had "no problem" with that and wanted to do whatever was "least costly to the client."
Reports indicate Scrushy may have been released on a $1 million bond and Siegelman on a $25,000 bond.
Another thing that will happen is the probation office has to conduct a pre-sentencing investigation and prepare a pre-sentencing report that is presented to the court. The report
- identifies applicable guidelines and policy statements,
- calculates the defendant's offense level and criminal history category,
- states the resulting sentencing range and kinds of sentences available,
- identifies factors relevant to the appropriate kind of sentence or the appropriate sentence within the applicable sentencing range and
- identifies any basis from departing from the applicable sentencing range.
Sentencing normally occurs about 90 days from the verdict. The report has to be submitted at least 35 days before sentencing unless the defendant waives the minimum period.
Acting U.S. attorney Louis Franklin advises, "We can't tell you what sentence we will be asking for until we see a pre-sentencing investigation report. We have to let that process work. We'll wait for the report to come out and then we'll make our decision according to what's in the report."
Franklin says after the initial report is issued there is an opportunity for objection to the report. He says then a final report comes out and is given to the judge. Following this, there is a sentencing date when the prosecution gets to argue what the sentence should be.
In a conversation after this story was first written, Art Leach said the government case has "big problems. They better enjoy it (the win) while they have it, because I don't think they're going to get to keep it."
Leach says he hasn't turned on a computer since the trial and doesn't plan to "for quite a few days." Who can blame him?