MONTGOMERY, Ala., September 25, 2006 - Attorneys for businessman Richard Scrushy and former Alabama Governor Don Siegleman have filed a joint Motion for a New Trial in federal court asking for a court order "vacating their convictions and granting them a new trial...because Defendants were denied their Sixth Amendment right to a fair trial before an impartial jury due to jury exposure to extrinsic evidence and jury misconduct."
Citing the Supreme Court and the Eleventh Circuit, extrinsic evidence is "evidence which does not 'come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel."
The motion asks the court, as an alternative to the vacating of the convictions, for the following:
Attorneys say the "jury's conscientious adherence to the Court's specific and repeated instructions was crucial to preserving the Defendants' Sixth Amendment right to a fair trial."
"However, it now appears that at least two jurors violated their solemn oath and defied this Court's instructions by bringing extrinsic evidence obtained off the Internet into the jury room. If the other available evidence is authenticated, it would also demonstrate that two jurors predetermined Defendants' guilt and then maneuvered to obtain guilty verdicts long before the close of all the evidence. This same evidence, if authenticated, would demonstrate that at least three jurors engaged in one-on-one deliberations outside the presence of other jurors and, in doing so, discussed extrinsic evidence."
"Any one of the violations summarized above and discussed below would warrant a new trial. If proven, these violations relating to the jury's exposure to extrinsic evidence and other jury misconduct compromised the integrity of this Court's process and violated Defendants' Sixth Amendment right to a fair trial before an impartial jury."
In support of their motion, attorneys say they have received evidence "relating to the jury's exposure to extrinsic evidence and jury misconduct."
And Scrushy attorney Terry Butts told wsfa.com,"A drunken fiction writer couldn't have invented what has occurred."
Butts, in another prepared statement, says, "Our constitution guarantees Richard Scrushy and Governor Siegelman a fair trial. A fair trial encompasses a solemn oath required of all jurors and trial participants. our misconduct motion graphically points out where the justice system failed in this instance to provide a fair trial under the rules. We believe Judge Mark Fuller will act accordingly in correcting the injustice as explained in our misconduct motion."
Assistant U.S. Attorney Steve Feaga told wsfa.com on Tuesday morning that he wanted to reiterate what he had told some of the media on Monday evening.
"It sounds very much like desperate pleadings filed by desperate men with unlimited resources trying to avoid the consequences of their criminal activity. I'm confident that there was no error committed during the trial that would entitle them to a new trial or any other appellate relief."
Feaga then went on to add, "I'm not surprised to see an attack on the jury. They attacked the U.S. attorney in this case; they attacked the acting U.S. attorney, they attacked the counsel for the government. During the trial they attacked their former friends who agreed to testify against them and now they're attacking the jury."
"It's disappointing, but not surprising. What they ought to be doing is owning up to the fact they broke the law, apologize to the public for it and demonstrating some recognition of the fact that the law requires them to pay a penalty for what they did."
Defense attorneys say the items "individually and collectively are substantial evidence demonstrating a significant pattern of exposure to extrinsic evidence and jury misconduct which led to the guilty verdicts returned against Defendants on June 29, 2006..."
The attorneys say the items they have received "demonstrate that:"
The motion cites various items of evidence "relating to the jury's exposure to extrinsic evidence and jury misconduct... They include: copies of published newspaper articles containing interviews with jurors in Defendants' case; a television interview with a juror in Defendants' case; affidavits of a juror's pastor, the juror's wife, and a juror in Defendants' case; and copies of what appear to be four e-mails between jurors that convicted Defendants and a transmittal letter that have been received in the mail by Defendants and their counsel over the past three weeks."
Jury foreman Sam Hendrix says,"I just want to wait and see what the judge and the attorneys do. Other than that I don't really want to comment. I'm as curious as anybody else."
Calling the evidence a "disturbingly vivid picture of multiple levels of exposure to extrinsic evidence and juror misconduct in this case," attorneys claim that because they are not allowed to interrogate jurors without 'filing a formal motion therefor with the court and securing the court's permission,' at this point in time this picture is clearly not the full picture. The full and complete facts pertaining to the nature and scope of this misconduct cannot be uncovered without the intervention of this Court."
The filers say the Court has "an immediate and heavy burden to fully investigate whether or not Defendants' jury was exposed to extrinsic evidence, s well as a critical duty "to ensure that the jury verdict is in no way tainted by improper outside influences." Rowe, 906F.2nd at 656
"Defendants can only urge that this Court authorize procedures that are properly tailored to uncover the truth and establish each and every fact relating to any exposure of this jury to extrinsic evidence."
The filing says "at a minimum" substantial evidence exists of the following:
"a. extrinsic information was obtained by the Jury Foreman Sam Hendrix, contrary to this Court's explicit instructions, from Internet research concerning, at a minimum, the role of the jury foreman in leading jury deliberations.
b. a statement by the jury foreman that, if true, indicates that there was an ex parte communication from this Court to the jury foreman in this case in a note to the jurors asking about their progress;
c. A statement by the jury foreman that, if true, indicates that the jury foreman conveyed concerns "unofficially to a marshal" that "some of the jurors...seemed to be losing interest," and that the marshal "went to the judge without [the jury foreman's] knowledge;
d. extrinsic information was obtained by Juror Katie Langer, contrary to this Court's explicit instructions, by using the Internet to read a news article apparently related to this case in some way,
e. extrinsic information was obtained from the Internet and possibly other sources that Juror A referred to in his affidavit as "Internet stuff and information that some of the jurors brought in and was talking about," and that "[some jurors] were pulling stuff out of files and some were talking about having Internet information and talking about that too,"
f. That, according to the affidavit of Juror A, the extrinsic information apparently included information that "the governor had put money from HealthSouth in his personal account," a conclusion which could not have been drawn from any of the evidence properly admitted in Defendants' trial,
g. That according to the second affidavit of Juror A, another juror, Juror B, told the jury so much about "law and legal procedures during our deliberations," that the jurors challenged Juror B, who "admitted that [Juror B] had searched the Internet," and thereafter, the entire jury "asked for the foreman's book," which the foreman already had a copy of,"
h. that, if authenticated, the May 29, 2006 e-mails between Jurors B and C at 10:41 p.m. and 11:38 p.m. on a Sunday night indicate that prior to the close of evidence in the Government's case in chief - that is, before any Defendant presented any witness or evidence - at least two jurors, contrary to this Court's explicit and oft-repeated instructions, were conducting premature deliberations in this case and, even more disturbingly, were identifying two specific fellow jurors as being "still off trac" [sic] and expressing their mutial concern that "some of the kounts r confusing 2 our friends" sic; and
i. that, if authenticated, the June 25, 2006 e-mails between Jurors B and D at 11:28 p.m. and 11:38 p.m. indicate that after the jury began its deliberations in this case, contrary to this Court's explicit instructions, that two jurors were deliberating outside the presence of the rest of the jury, specifically as to "the pastor & gov," and that Juror B, who is the same juror who Juror A states brought the extrinsic Internet research into the jury room was urging another juror to "stay focused" and reminding or querying the juror about "plans for 4th," additionally, the reference of Juror D in the e-mail to "penalty 2 severe" is further evidence of the jury's exposure to extrinsic evidence, as no evidence properly admitted in the case would have informed any juror of the possible penalties Defendants faced."
The document alleges that the "evidence supports a particularly disturbing inference that two of the twelve jurors, at a time prior to Defendants' opportunity to submit any evidence in Court, had concluded that Defendants Siegelman and Scrushy should be convicted and engaged in a pattern of communications and activities in direct violation of this Court's instructions to insure that any jurors who would not go along with such a conclusion would, by any means necessary, eventually be convinced to return such a verdict."
"...the evidence in this motion requires that Defendants' convictions be vacated and Defendants be given a new trial before a jury that is not tainted by access to extrinsic evidence and a pattern of misconduct. Defendants also submit that this evidence mandates a further investigation and an evidentiary hearing before this Court. Specifically, Defendants are requesting that the following steps be taken pursuant to appropriate Orders issued by this Court:
"a. that Defendants be authorized by this Court, pursuant to the provision of Local Rule 47.1 to conduct through counsel interviews of all jurors in this case;
b. that should this Court not authorize such interviews, that this Court conduct an interrogation of all jurors pursuant to the provisions of Local Rule 47.1, and that such interrogation should be in camera, under oath, and that counsel for all parties be permitted to participate;
c. that this Court enter an Order requiring Juror B and Juror C to provide access to any computers used by said jurors during their jury service and that this Court enter an Order appointing an independent company which specializes in computer and electronic evidence to make a mirror image of the hard drive on each of these computers in the presence of representatives of each of the parties, and thereafter provide those mirror images to all parties for examination by expert witness on behalf of the parties to identify and track all Internet research conducted by these jurors during the course of their jury service;
d. that this Court enter an Order requiring all jurors (including alternate jurors who did not deliberate) in this case to provide to the Court, in camera, a list of all e-mail account addresses, all text-messaging account addresses, and all Internet Service Providers which were in effect from the date of jury summonses until June 29, 2006;
e. that this Court enter an Order authorizing Defendants to issue subpoenas pursuant to Rule 17(c), using the information obtained to all Internet Service Providers and all telephone companies providing instant messaging or text-messaging services as to any of the jurors in this case, to produce all e-mail and text messages between any jurors from the date of summonses through and including July 31, 2006; and
f. that this Court, after the parties have had reasonable time to investigate the materials obtained through interviews and/or Rule 17(c) subpoenas, conduct an evidentiary hearing at which all parties will be permitted to question under oath all jurors and subpoena any other witnesses that may have relevant information relating to the exposure of the jury to extrinsic evidence, e-mail or text-message communications between jurors in this case, and any other misconduct relating to the jury in this case."
Attorneys say they do not have the burden of proving prejudice to the defendants. Citing cases from the 11th Circuit, 'As a matter of established law, the burden of proving prejudice does not lie with the defendant because prejudice is presumed the moment the defendant establishes that 'extrinsic contact with the jury in fact occurred.'"
They further cite from the 11th Circuit "Once the defendant proves extrinsic contact, the burden shifts to the government to demonstrate that the consideration of the evidence was harmless....The presumption [of prejudice] is not conclusive, but the burden rests heavily upon the government to establish, after notice to the defendant, that such contact with the juror was harmless to the defendant."
In support of their request for a full evidentiary hearing in the matter, the motion lists the following items.
"In sum, Defendant's showing that extrinsic evidence was obtained by one or more jurors and that it was shared with the other jurors is substantial - particularly in light of Defendants' inability to seek first-hand information by interviewing the jurors due to the preclusion of Local Rule 47.1.
It is substantiated by the published admissions of two of the twelve jurors that convicted Defendants and the sworn affidavits of an additional juror that participated in those verdicts. Defendant's showing is neither vague nor speculative. The allegations, if proven true, are extremely serious and could well lead to the revelation of even more problematic types of extrinsic evidence that was brought into the jury room."
The government has until October 13, 2006 to file its response to the motion. Defense attorneys say in their motion that the possiblity is still open that they may file additional motions under Rule 33 before the filing deadline of midnight Friday, September 29, 2006.
Judge Mark Fuller has yet to rule on Motions of Acquittal filed earlier but he is under no obligation to rule on motions in any particular order.
Finally, followers of Richard Scrushy may find the following interesting. Usually I don't go with idle speculation but I've heard from the rumor mill that Jim Parkman's firm may be getting in this case. Parkman's currently in trial in Arizona and I was unsuccessful in reaching him to find out if the rumor that I've heard from more than one bird might possibly be true. All I can say is stay tuned.