Q. Thank you Judge Carroll for sitting down with me this morning. I'd like to talk to you for a little bit about the new trial motion recently filed by Don Siegelman and Richard Scrushy's lawyers. In the motion, they're asking that the court vacate the convictions and give them a new trial and their reasoning is "due to jury exposure to extrinsic evidence and jury misconduct." What do they have to prove in this motion to get a new trial in this case?
A. "They really first of all have to prove that this occurred, that the jury considered extrinsic information and the jurors engaged in misconduct. And if they prove there was extrinsic information in front of the jury then the burden of proof shifts to the government to prove that there was no prejudice. The same is generally true about juror misconduct."
"So the real question around which this motion revolves is the issue of prejudice. Was there prejudice to the governor and to Richard Scrushy."
Q. Now they, even themselves, say we don't know if the documentation we got is authentic. The Court obviously has a decision to make as to whether or not to even inquire into the authenticity of the documents and somebody said to me yesterday 'Well if the Court does an inquiry into the authenticity isn't that as much as giving credence to the claims of the defendants. How would you answer that?
A. "Not necessarily. The law, the real serious claim here is this issue about extrinsic evidence. If, in fact, the jury had information before it in the deliberations in this case that wasn't presented in court that's a very, very serious allegation and one that the courts will understand and deal with. General complaints about, you know, this isn't my verdict and I felt forced into it, generally the courts don't ever look behind jury verdicts. But if there's a colorable claim, that there was information they considered which was not presented in court, then the court probably should make further inquiry."
Q. The allegations concerning the e-mails are what people generally say are the most serious if they can be proven. The fact that allegedly two jurors were communicating at the end of May prior to the defense even putting on their case and suggesting that other jurors weren't on the right path. How much does that weigh with the judge in considering this motion, those particular e-mail communications?
A. "Well I'm sure Judge Fuller will consider that a serious matter since his instructions were that they not do that. But I think 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 the jury deliberations."
Q. But the only way to determine if they did get into the deliberations is by further inquiry?
A. "Exactly, and 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 a sudden everything I've done, I'm going to be called back into court; I thought this case was over, so Judge Fuller has a difficult decision to make as to whether or not to order further inquiry. Now, he could order limited inquiry for example. He could talk to the two or three jurors who are supposedly sending these e-mails and talk with them. That would certainly be something that would be one option which would protect the rest of the jury."
Q. They say that the jurors, these two jurors in particular, predetermined the guilt of Siegelman and Scrushy. So that is their allegation. How would you go about determining if that allegation is true?
A. "Again the easiest way is to call the jurors in and the law would allow Judge Fuller to interrogate these jurors without any lawyers present so long as a record was being made, those kinds of things. 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."
Q. There's also questions about two jurors in particular and their use of the Internet. Is that an issue at all in this case the fact that they were surfing the Internet, if and just say a big if, the information they looked at didn't find its way into the jury room?
A. "Well if it found its way into their own minds then, in fact, it found its way into the jury deliberations. For example, I remember a case not long ago where a jury went to the scene of an accident and did his own measurements and looking around and the court voided that conviction so again, jurors are supposed to base their verdict on what happens in the courtroom and not anything else and if there's proof that something else happened then the verdict can be set aside."
Q. I've noticed in the last couple of weeks in the courtroom, I've been sitting in on some of Judge Coogler's cases both in Birmingham and Montgomery, and he has been explicit about warning jurors 'don't bring anything into the jury room' beyond the standard. I mean they've always said that, but he's gone so far as to say I've had a trial that had to be retried because someone brought a map in off the Internet, okay. Yesterday, in Montgomery, he said,"I don't want you e-mailing, sending messages by pigeon, by fax,...any method whatsoever." But I noticed that the email is starting to make its way into the daily jury instructions. Is that something that should just be standard from now on?
A. "It should be. I mean quite frankly back in the old days jurors could be talking to one another on the street corner, calling one another at night and there was no record. And now days, in this error of technology, there's a record of instant messaging and there's a record of e-mails."
Q. So how far would you go in limiting the jury in so far as cell phone contact after hours with people not related to the trial. I mean is there anything the court can do?
A. "There's nothing the court can do. The court can simply give its instructions which is your not to discuss this case with one another or with anybody else and it can simply do that. Now in the Richard Scrushy case up here the judge would periodically interrogate the jurors to see if they were following her instruction and that's something a court in a long trial could do is periodically remind the jurors of the instruction, ask them if they were following in that sort of thing."
Q. There's been a lot of questions about this affidavit that one of the jurors submitted. You touched on that a little bit ago saying that he was pressured. He indicated in his affidavit that information had come in from outside into the jury process, but this is again one juror. How heavily does that one juror weigh with the judge?
A. "I think that the judge takes into account all of the facts and circumstances of a particular case and this is one fact, the fact that there was e-mail communication is another."
Q. There's a lot of talk about the Internet records, the ISP records, the text messaging records. I had it raised with me why hasn't some kind of order gone out saying you can't destroy any of this stuff until we get a chance to see if there is anything that needs to be looked into. How does a judge or how do those subpoenas come about?
A. "In criminal cases they have to be generally by subpoena so and the court would have to approve those subpoenas before they could be issued. In a civil case, a party can simply issue a subpoena, but in a civil case there's more control, particularly where there's documents at issue."
Q. I've heard some people state that they're concerned that if these communications did exist that the ISPs go through and clean out their data and records like on a 90 or 120 basis depending on the company. Is that something that the court has to be concerned with?
A. "My recollection is that, and I can't recall whether the defendants asked for a preservation order or not, then yes it's something the court has got to be concerned about and he's got to weigh. I think the judge has to weigh the possibility. Is he going to order further factual inquiry and should he then issue an order saying hold these records while I sort this out."
Q. One of their other statements says, "The jury's consideration of extrinsic evidence requires a new trial if the evidence poses a reasonable possibility of prejudice to the defendant." How would you define reasonable and how does the court define reasonable?
A. "You know the court never does define reasonable. It is simply, all that says is that the case turns on the facts and each and every case is different."
Q. They also quote in there from the former 5th Circuit saying that if the judge for some reason basically fails to hold a hearing (should have stated inquiry here) that that can be considered reversible error. What's your opinion of that?
A. "You know again it depends on the facts and circumstances. But that certainly will be an issue on appeal if Judge Fuller does not order further factual inquiry or hearing I'm confident the lawyers for Governor Siegelman and Richard Scrushy will raise that on appeal that he should have done that."
Q. Can you explain to people a little bit about what local rule 47.1 is having to do with communications between attorneys and the jury?
A. Now if it's the same rule that was in effect back when I was there, generally there is no communication between lawyers and jurors except by permission of the court.
Q. Something was raised to me in the courthouse in Montgomery yesterday that there are some rumors going around that some people believe that the affidavit that was filed by the juror, the questioning was so specific to this case that it's a possibility, again this is just heresay, that some people believe that attorneys related in some way to Richard Scrushy did the questioning. If that happened and the court determined that happened, what would be the repercussions?
A. "There could be sanctions imposed for violation of the rule. A wide variety of sanctions...could be monetary sanctions, could be a sanction that you not be allowed to practice in the Middle District of Alabama. But again if the juror contacts lawyers then I don't think rule 47.1 is violated. That's to protect the privacy of jurors that don't want contact after a trial.
Now, a very interesting question is if you go on television and say you're thing on television whether you've waived that protection under that rule, but that's a whole nother issue. Generally in the Middle District of Alabama jurors' privacies are protected and lawyers are not supposed to contact jurors without the court's permission. I mean when I was a judge, if I had a request, I would write the individual jurors and say do you want to talk to the lawyers. Some would say yes and some would say no. If they wanted to talk, I'd send those juror's names to the lawyers but contact with jurors under 47.1 is forbidden unless there's further permission."
Q. You've had a chance to read through the motion, look at the exhibits, how strong do you think the defendants arguments are in this case?
A. "You know, I can't answer that question. I think the only people that can answer it are people that sat through that entire trial and quite frankly the only people are the lawyers, the judge and the jury because these are completely fact bound issues. It really does depend on the strength of the evidence, what was going on in the courtroom and that sort of thing so it's really impossible to speculate. I mean I think they're serious allegations and they're allegations with a certain set of facts could entitle those defendants to relief. But without really knowing all the facts it would be pure speculation."
Q. Do you think Judge Fuller, taking everything into consideration, would err on the side of caution and do a limited inquiry into this?
A. I know Judge Fuller has gotten a lot of praise for the way he handled this case. I'm confident he's going to do the right thing and only he can decide.