MONTGOMERY, Ala., October 13, 2006 -- The government response to allegations of jury misconduct and the possible introduction of extrinsic evidence into the jury deliberation process raised by attorneys for defendants Don Siegelman and Richard Scrushy minced no words and continues the ongoing diatribe between both sides that started long before the case ever went to trial. In their response the government calls defense allegations "bombastic" and alleges that defense attorneys may have violated local rule 47.1, which prohibits contact between the attorneys and the jurors unless otherwise approved by the court. Prosecutors also question who did the questioning in affidavits submitted with the defendants' joint motion for a new trial and why documents were apparently faxed to a public location in at least one instance. The government continued also on their theme of the defendants' not wanting to accept responsibility "for their criminal actions."
"Consistent with their conduct throughout these proceedings, Defendants, after having been found guilty beyond a reasonable doubt by a jury of their peers, assail this Court, the jurors, and the government in an effort to avoid having to take responsibility for their criminal actions. Their bombastic allegations are matched only by the spurious nature of the evidence they proffer to support them. Defendants urge this Court to engage in a sweeping, unprecedented inquisition of the jurors who honorably served in this case, without consideration of the jurors' First and Fourth Amendment rights. They do so on the basis of unauthenticated, unsubstantiated, uncorroborated information from anonymous and untrustworthy sources. Defendants are simply not entitled to any relief on any legal, factual, or policy grounds. Therefore, this Court should deny the Motion and Emergency Motion."
Richard Scrushy had the following to say to wsfa.com on Saturday:
"They said a lot of things that are not true and a lot of the facts are twisted. It was obvious they had to make it up. My attorneys will reveiw and prepare a reply that will detail all of the things they said that are simply just not true."
Attorneys of former Governor Don Siegelman asked the federal court for an emergency order to Require Preservation of Evidence in the case, specifically related to the alleged e-mail, text messaging and other electronic communications as well as ISP and phone cell provider records related to jurors allegedly involved in communications with other jurors and/or getting information from the Internet during the case following an earlier jointly filed Motion for New Trial which put forth allegations of jury misconduct and possible infiltration of extrinsic evidence into the jury room if documents received by defense lawyers could be "authenticated." The new trial motion was re-filed on September 29, 2006 following issues related to the redaction of exhibits in the original filing on September 25, 2006.
The government calls the attempts by defedants, through their attorneys, to have an inquiry held on the matter akin to "permission to conduct a sanctioned inquisition of the jurors" says the issues raised by the defense are "devoid of credible evidence..."
"Defendants' Motion is replete with speculation, innuendo, conspiracy theories, and conclusory allegations of juror misconduct; however, it is noticeably and fatally devoid of credible evidence of any improper behavior requiring any further investigation by this Court, much less a new trial for Defendants. The Motion and the Emergency Motion are due to be denied."
The government filing cites the Federal Rule of Evidence saying Rule 606(b) "precludes any inquiry into the deliberations and mental processes of the jurors; no reasonable possibility of prejudice arises from any purported extraneous matters reaching a juror; and Defendants can point to no improper, let alone prejudicial, ex parte communication between this Court and the jury."
Throughout the motion the government questions the integrity and actions of attorneys for the defendants, particularly as it relates to the affidavits:
"The highly speculative and questionable circumstances surrounding the manufacture of the affidavits should lead this Court not to conduct any further inquiry nor to hold a hearing. If the Court decides to grant a hearing, the sole issue investigated should be the creation of the affidavits and Defendants' possession of them."
The government questions why pages were apparently left out of exhibits saying that a cover page and four remaining pages were apparently not included in an exhibit. "Defendants, the only persons with that answer, did not think it expedient or important to answer this question for the Court, government, or public."
Further related to the affidavits, the government questions why the second affidavit of Juror A's was "faxed to a Staples office store in the Atlanta metro area on September 2, 2006, at 6:13 p.m. Notably, two of Defendant Scrushy's attorneys live and practice in the Atlanta area. Defendants once again provide absolutely no explanation for why Juror A's affidavit would be faxed to a public location in Atlanta, who faxed the affidavit, why it was faxed, to whom it was faxed, and why Defendants even know this second affidavit was in existence."
The government has major issues with the affidavits of Juror A, who allegedly feels remorse over his verdict, and talked in his affidavits about outside information coming into the jury deliberations. The government questions who did the questioning.
"The affidavits of Juror A are less credible and more speculative than the affidavits of his pastor and wife, raise additional questions about their manufacture, and call for further scrutiny of Defendants' actions in obtaining and possessing them. Puzzlingly, the affidavits are in question and answer format, but the identity of the questioner in the affidavits is never revealed, nor discussed in the Motion. Each affidavit is taken by an anonymous person, which fact alone calls for its complete rejection by this Court.
Defendants' failure to identify the unknown inquisitors is not surprising given the revelation of the source and motives for coaxing this attack on the verdict would likely undermine its credibility, and given the potential punishment for a violation of Local Rule 47.1. The unknown inquisitors are obviously legally trained given his/her questions to Juror A and his/her statements in the affidavits. In addition, the unknown inquisitors are determined to coax answers from Juror A and create an affidavit designed to show juror misconduct during deliberations to benefit Defendants."
"The affidavits could not be less objective, and yet Defendants claim that they present objective, substantial proof of juror misconduct - all the while Defendants fail even to mention that an unknown inquisitor is cross-examining Juror A under unknown circumstances."
The government continuously raises questions about how the defense received the affidavits. "Most questionable, is how the unknown inquisitors provided the affidavits to Defendents. Permitting Defendants to engage in further investigation of the jurors, much less granting them a new trial, on the basis of this flimsy, unsubstantiated, highly speculative, anonymous information would be to sanction a fishing expedition of the type the Supreme Court has specifically admonished courts not to grant postverdict."
Prosecutors say at its worst the circumstances surrounding Juror A's affidavits might be sinister:
"Given all the peculiar, questionable, and unusual circumstances surrounding his affidavits, which Defendants do not even attempt to explain, Juror A's purported willingness to impeach his verdict, more than a month after the conclusion of the trial, is highly suspect at best, and sinister at worst."
The government says there are valid reasons for not conducting an investigation. They say the testimony based on the alleged evidence is not admissible and thus there should be no further investigation.
"Given the inadmissibility of any jurors' testimony through affidavit, any statement by a juror to a nonjuror, any email exchange between jurors, any allegation in an anonymous letter, or any statement attributed to a juror in a newspaper article or television interview pertaining to the above internal matters, and given further the complete absence of nonjuror evidence to support Defendants' allegations, this Court should not pursue any investigation into Defendants' allegations."
Calling the allegations of jury impropriety "specious" the government says defendants are "not entitled to relief, nor to any further investigation."
The response goes on to say
"Defendants' allegations of juror misconduct rely on exhibits that are entirely speculative and unauthenticated. These exhibits raise more questions about their manufacture and Defendants' possession of them than they do about any possibility of juror misconduct. Consequently, being wholly unreliable and incredible on their face, they do not merit any intrusion on the jury's province via an investigation into Defendants' spurious allegations. The specious nature of Defendants' exhibits alone should lead this Court to deny the Motion and Emergency Motion."
In their new trial motion, attorneys for the defendants, convicted in June on bribery, conspiracy and mail fraud charges related to $500,000 in contributions made by or arranged by Scrushy to Siegelman's lottery foundation, argue the convictions should be vacated and a new trial given "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."
"... 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."
And now the government in its response says the exhibits presented
"do not provide any legal basis for further investigation or a new trial" and goes on to say that federal rules bar "any investigation into any factual issues that Defendants claim are raised in unauthenticated emails Defendants purportedly received anonymously over the past two months without the knowledge of the Court or the government....Defendants have not presented any reliable or credible evidence of a single instance of extraneous prejudicial information reaching the jury or of any improper outside influence on the jury...Defendants further fail to address, let alone carry, their burden to prove prejudice."
Unlike a recent press release sent out by the Scrushy public relations team and rife with errors including the wrong filing date for the Motion for New Trial among other things, attorneys filing motions for Scrushy have been precisely consistent in saying that the alleged e-mails they have been sent need to be authenticated and that is why the preservation request was made:
"The only way to properly authenticate the existence and content of such e-mails, in addition to any Internet research conducted by Jurors B and C, is by entry of an Order to preserve the contents of the computers of Jurors B and C and an Order to preserve the contents of the computers of Jurors B and C and an Order to the appropriated ISPs and phone companies to preserve their records of all e-mails, phone calls, and text messages to or from these jurors, and the delivery of a copy of all such materials to this Court in camera."
The government latches on to the uncertain origin of the emails in its response:
"These emails, rather than supporting Defendants' position, actually expose the baselessness of their claims. The emails' origin with an anonymous source severely discounts their credibility and legitimacy, and removes any burden on this Court to conduct an intrusive investigation into their provenance or their content."
Further on in a footnote contained in their response the government takes the defendants and their attorneys to task for not notifying the Court of possible jury tampering.
"Related to the emails' dubious origin and complete lack of authenticity is the manner in which Defendants' counsel received them. According to counsel, they received the anonymous letter containing the alleged emails and personal information of Juror B on September 5, 2006.
At that time, counsel made no effort to contact this Court about the possibility of jury tampering, especially the possibility that an unidentified individual was investigating and accumulating personal information about a juror, including highly personal information completely irrelevant to this case. Instead, counsel continued to receive correspondence from the anonymous source over a two month period while making no effort to contact this Court, report the possibility of jury tampering to the authorities, or make any inquiry into the identity of the anonymous mailer.
In fact, counsel received one installment of information from the anonymous source on approximately September 22, 2006 (given the September 21, 2006 postmark) - three days before they filed the Motion. Counsels' articulated concern about possible juror misconduct is belied by their abject failure to initiate any remedial action to protect the integrity of this Court's proceedings and the secrecy of deliberations."
Assistant U.S. Attorney Steve Feaga told wsfa.com when the Motion for New Trial was originally filed that he was confident "there was no error committed during the trial that would entitle them to a new trial or any other appellate relief." He called the filing "desperate pleadings" and said he was disappointed but not surprised at the filing. Feaga says it's time to move on,"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."
Following the same theme Mr. Feaga espoused earlier this week, the government goes on to say in its filing that the defendants won't take responsibility for their actions.
"Jurors need to be protected from postverdict inquisitions by convicted felons seeking to avoid the consequences of their criminal actions."
"From the beginning of these proceedings, through the jury's verdict, until now, Defendants have consistently denied all accountability for their criminal actions. Moreover, concerns about Defendant Scrushy tampering with the jury were raised during his criminal trial in the Northern District of Alabama last year. In addition, the evidence at trial which led the jury to convict these men showed that they voluntarily, willfully, and knowingly engaged in deceitful, fraudulent, and corrupt practices. For example, Defendant Scrushy told his chief financial officer to obtain the IHS check in such a way to ensure that Defendant Scrushy's fingerprints were not on the check."
Defendant Siegelman lied to his chief campaign fundraiser when he told him that he was going to return the IHS check to its issuer. Defendant Siegelman further lied to his fundraiser and to the public when he knowingly failed to report the IHS check to the Alabama Secretary of State, which was in clear violation of the Alabama Fair Campaign Practices Act.
Defendant Siegelman's failure to report the IHS check effectively hid from the public and law enforcement his receipt of this $250,000 from Defendant Scrushy even though his fundraiser learned in 15-20 minutes that this money was from Defendant Scrushy. Defendant Siegelman further lied to and deceived the public when he surreptitiously opened and deposited the IHS check into a secret bank account in Birmingham, Alabama. The jurors heard this evidence, believed it to be true, and convicted these men for their criminal behavior - including convicting Defendant Siegelman for obstruction of justice.
Now, these same Defendants petition this Court for permission to conduct a sanctioned inquisition of the jurors, who honorably served during this trial, in complete disregard of the jurors' First and Fourth Amendment rights. Defendants make this request despite their having already engaged in activities, which violate at least the spirit, if not the strict letter, of Local Rule 47.1, and have led them to obtain alleged personal information and sworn statements from jurors from anonymous sources and unknown inquisitors."
Former Governor Don Siegelman told wsfa.com in an extended interview he has "absolutely not" done anything wrong, "There was no evidence presented that there was a crime committed." He also says, "Scrushy didn't do anything wrong in this case.
Judge Mark Fuller said in an order denying motions for acquittal filed by both defendants that
"Siegelman and Scrushy have presented a variety of arguments in their motions for judgment of acquittal. The Court has carefully considered all of them, as well as the responses to those arguments by the Government. The Court finds that during the course of this very lengthy trial, the Government presented substantial evidence upon which a reasonable trier of fact could conclude that Siegelman and Scrushy engaged in the conduct for which they were convicted."
Siegelman attorney David McDonald, wsfa.com this week,"I can't wait for the Justice Department to file a brief that opposes the preservation of evidence. I'm going to blow it up, frame it, and hang it on my wall."
It looks like Mr. McDonald should get to work on his home decorating project.
Wsfa.com tried unsuccessfully to reach defense attorneys late Friday evening for any response to the government's filing. Defendants have until October 20th to file their reply to the government response.
Reported by: Helen Hammons