MONTGOMERY, Ala., October 6, 2006 -- Attorneys for former Governor Don Siegelman have filed an Emergency Motion for Order to Require Preservation of Evidence in the government corruption case in which the former governor and businessman Richard Scrushy were convicted on charges related to Scrushy's alleged receiving a seat on the CON Board, a hospital regulatory board in exchange for contributions to a foundation related to Siegelman's efforts to bring a lottery to the state of Alabama.
In the motion filed around 3 p.m. Siegelman attorney David McDonald says "Defendant is not seeking access to such evidence on an expedited basis. Defendant is seeking only that this Court take limited action to preserve evidence that may be critical to the determination of the defendant's motion."
The filing asks for the preservation of all "computers, cell phones, text messages, and all evidence contained in all said devices."
Attorney David McDonald told wsfa.com that the defense was "just trying to be extra cautious" by filing the emergency motion. He said while the Court is waiting for a response from the government, due October 13, 2006, vital information could be lost. His concern is that Internet Service Providers could "clean out their servers and the information is gone forever."
The motion goes on to ask that the court "Order Jurors B and C to disclose all companies that provided Internet, email, cell phone, or text message services to Jurors B and C between April 1, 2006 and July 15, 2006. Order said companies to preserve all information related to said services, enter an order granting the relief requested in paragraph 24(c) of Defendants' joint motion for new trial..."
"The Defendants' joint motion did not specifically request that the Court Order Jurors B and C to disclose all Internet Service Providers (ISP), email providers, and cell phone companies that provided services to Jurors B and C between April 1, 2006 and July 15, 2006. And, Defendants' joint motion did not specifically request that any companies rendering Internet, email, cell phone, or text message services to Jurors B and C be Ordered to preserve all information related to such services rendered between April 1, 2006 and July 15, 2006."
"Governor Siegelman has a legitimate concern that the companies providing Internet, email, cell phone, and/or text messaging services to Jurors B and C between April 1, 2006 and July 15, 2006 may, during the ordinary course of business, destroy information critical to the Defendants' prior joint motion if an Emergency Order is not immediately issued by this Court."
"Similarly, given the nature of the allegations of jury misconduct, the factual detail contained in the allegations, and the widespread publicity concerning the details of those allegations, Governor Siegelman has a reasonable and justifiable concern that the information requested from Jurors B and C may be destroyed or lost (either intentionally or unintentionally) unless an immediate Emergency Order is issued by this Court."
McDonald also late Friday afternoon expressed puzzlement with the fact the prosecutors in this case did not join defense lawyers in asking for an "immediate hearing" and investigation of "serious juror misconduct."
Assistant U.S. Attorney Steve Feaga has made several statements previously, including to wsfa.com, saying the joint motion for a new trial presented by the defendants in the case are "desperate pleadings from desperate men with unlimited resources." Feaga previously told wsfa.com the government would "vigorously oppose" the new trial motion and believes it's time for the case to move forward to sentencing.
McDonald argues in a footnote and reiterated to me on the phone that "We just want the Department of Justice to be as responsive in this as they are in other cases." McDonald specifically mentioned the recent case concerning Congressman Foley from Florida's alleged improper communications with young pages by electronic means. "Within 72 hours...the Justice Department said to the House 'don't destroy anything,'" says McDonald.
In the motion is a continuation of this theme, "Once again the Department of Justice's position in this case is diametrically opposed to its conduct in similar situations...Why the Department has taken no such efforts in this case and why the Department has already publicly opposed any investigation into this critical matter remains a mystery."
Concerning the new trial motion itself, Judge John L. Carroll, Dean of the Cumberland School of Law at Samford University and former Magistrate Judge in the Middle District of Alabama tells wsfa.com "the real question is, is there going to be further inquiry into how extensive this was and that's Judge Fuller's call. Again, the whole issue is whether any of this juror misconduct found its way inside those jury deliberations...The problem with further inquiry is a) Generally you don't inquire behind a jury verdict and b) It opens the door to complaints about 'you know if I'm going to serve on a jury then all of sudden everything I've done, I'm going to be called back into court, I thought this case was over.' Judge Fuller has a difficult decision to make as to whether or not to order further inquiry."
Carroll says one option for the judge is a limited inquiry. "He could talk to the two or three jurors who were supposedly sending these e-mails and talk with them, that would certainly be one option that would protect the rest of the jurors...The law would allow Judge Fuller to interrogate these jurors without any lawyers present so long as a record was being made...and to me that's the easiest way is to ask them what they did and did, in fact, they have a prejudgment about this case."
And the bizarre post-trial world of the government corruption trial saw a couple of more crazy events unfold this week.
The Dothan Eagle reported that Rev. Stephen Hudson turned himself in following the issuance of an arrest warrant earlier in Ozark. Hudson has been indicted by a Grand Jury and has been accused of signing church benevolent fund checks in the names of other people. Rev. Hudson is the same pastor allegedly counseling one of the jurors and the juror's wife over misgivings said juror now has about his vote in the case. Hudson made a statement on an affidavit that somehow found its way into the hands of defense lawyers and subsequently into the joint new trial motion. The juror's wife and the juror also filed affidavits that were for some reason filed with a notary in Jefferson County.
And speaking of jurors. During a retrospective panel discussion of the Siegelman/Scrushy trial at Auburn University on Friday, one of the jurors found her way into the audience. Katie Langer, whose identity as a juror has previously been revealed due to interviews she gave with both newspapers and television, was spotted taking in the event. Afterwards, Ms. Langer said she did not wish to talk about the allegations made against jurors in the recently filed new trial motion.
And in that regard, some panelists were quite surprised to hear that jury foreman Sam Hendrix had been asked to participate in the event but had a scheduling conflict and was in Louisville instead. It is not known if without the conflict Hendrix would have participated.
For the record, I served as a panelist at that event intended to discuss challenges faced by reporters and sources during the high profile trial as well as how these events might impact the future of further big trial coverage.
Reported by: Helen Hammons