MONTGOMERY, Ala. - Aug. 25, 2006 -- Replies to the Aug. 18, 2006 government response to the supplemental briefs to motions for acquittal filed on Aug. 4, 2006 for former Governor Don Siegelman and businessman Richard Scrushy are due no later than midnight Friday to the federal court.
When he took a brief break in the preparation of his reply to the government's filing to sit down and talk with me for a few minutes earlier this week in Birmingham, Richard Scrushy's lead attorney in the case, Art Leach, stuck to his customary practice of not discussing the specifics of a filing before it is actually filed.
However, he did talk in general about what could be expected and also went over one of the issues that has played a prominent role in the case -- the issue of an express quid pro quo and talked about some of the issues related to sentencing, the pre-sentencing report, and the appeals process.
Regarding the government's response, Mr. Leach had the following comments:
"All the arguments that they've (the government) asserted are somewhat familiar based on what we heard during the course of the trial and we're going to have basic legal disputes over what the law requires and what it doesn't require and we expect to clarify it as much as can possibly be done in our reply brief."
"The Supreme Court in a series of cases, but McCormick being the one that is most prominent, has said that because our political system runs on private campaign contributions the government has an additional burden in cases that involve political figures to demonstrate an express quid pro quo, which means that an actual understanding exists between the politician and an individual for that politician to sell his office. The government has failed in that in this case. There was no proof whatsoever and I think they agee with that..It's set out in their response and that standard was not charged to the jurors. So in the event that the Court of Appeals (the 11th Circuit) makes a finding that we're right and they're wrong - they lose, that's basically it."
The government would argue that the jury instructions in the case were sufficent for the specific charges brought against Mr. Scrushy. They now argue as well "the payments...were not remotely qualified as legitimate campaign contributions."
The appeals process could be a lengthy one says Leach. He says there are just too many variables involved to calculate an exact time frame.
"There's too many variables to really know how long it's going to take. Different judges on different panels move at different speeds at the 11th Circuit. But I think you can rest assured it's going to take about a year and it can take longer, it can take shorter. It just depends on how fast it gets through the process and who's on the panel and who gets assigned to write the opinion. All those things are variables that there's really no way to calculate."
So what's the status of the pre-sentencing report on Scrushy? Leach says he hasn't gotten an indication from the probation officer that it's about ready. "But based on where we are in the process I would think that it is not near completion yet." Richard Scrushy has met with the probation officer but Leach says this is standard and there's something people need to understand about the situation.
"Everybody out there needs to know that somebody that's on pre-trial supervision is supervised by probation so I mean we've basically been working with probation since November 2003, so we're very familiar and none of this comes as a surprise. It's standard in the way things operate."
People have been talking about whether or not his client will have to go to prison while his appeal is being heard. This issue received some attention on the Paul Finebaum show last week when it was said the indications coming from Montgomery were that Scrushy would spend time in prison pending appeal. I have heard the issue argued both ways, but everyone knows it will be up to the judge.
Mr. Leach says he will ask the judge to allow his client to remain out of prison pending appeal.
"We will certainly raise that issue with the court. There's an entire process that you go through in order to have what's known as an appeal bond while your appeal is being heard. You know obviously we will seek an appeal bond. In terms of what the judge would or would not do, that's nothing but speculation because I'm sure Judge Fuller hasn't shared that with anyone, so it's just one of the many things that Judge Fuller will have to decide.
In that regard, what he looks at is whether Richard is a risk of flight, whether he's a threat in any way, shape or form to his community. I don't think the government will even assert that those things are possible. And then it comes down to an evaluation of the issues on appeal and you know those are decisions that are so uniquely within Judge Fuller's knowledge of the overall case that I don't know how anybody can predict what he will do on that issue."
I raised with Leach the fact that the government did call his client a "grave flight risk" in its response to Mr. Scrushy's request to take a family vacation to the Bahamas. The travel request was denied by the Magistrate Judge Charles Coody.
"The possibliity that Richard Scrushy would run is absolutely negligable in this case for this reason - Richard Scrushy in the Birmingham case faced the rest of his natural life in prison. He literally could have been sentenced to a term of imprisonment that would have meant that he would have died in prison and to think that Richard Scrushy wouldn't run through all that and now he's going to run when he's faced with this much lesser case is crazy. He's never had a single problem with supervision and I just can't imagine how they would make that argument based on all his ties to the community.
All his assets are in the United States. No one's ever claimed that he has any assets that are located anyplace else. Richard never made any effort to move his assets even back in the case in Birmingham when he got all his assets back after the SEC tried to seize them. He never moved anything...He knew the indictment was coming. I mean all these are things that the law requires the judge take a look at when making the determination whether there is a risk of flight and he just has this track history of staying and fighting it out through the court system. So I don't think that argument can actually be made based on everything we know."
I also covered with Scrushy's lawyer the repeated statements by the prosecution, and many in the public, that Scrushy is not showing any remorse or taking responsiblity for the things of which he has been convicted.
"Well, you know, if you've got a bank robber who knocks over a bank and is caught walking out the door with the cash in his hand and the die pack explodes and he's got the yellow paint all over him and everything, you would expect somebody to have remorse. But obviously Richard Scrushy feels real strongly about what he did and did not do in this case. So, you know, what the government is seeking is for Richard Scrushy to get on his knees and beg forgiveness for something that he obviosuly feels very strongly about.
So these are things that will all be taken up through the pre-sentence investigation and will be considered at the time that the judge is considering the sentencing in the case."
WSFA.com will bring you information about the replies by both the Siegelman and Scrushy defense teams when they are filed. Last week the government did not file there brief until a few minutes before midnight and previously it was midnight when the Siegelman team filed their motion for acquittal, so to know at what time these filings will be made requires someone with a better crystal ball then I've got.
District Judge Mark Fuller will decide a stome point after getting the briefs whether or not to hear further oral arguments on the motions for acquittal.