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."
Richard Scrushy had the following to say to wsfa.com on Saturday:
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..."
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 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 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.
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
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."
And now the government in its response says the exhibits presented
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 government latches on to the uncertain origin of the emails in its response:
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.
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.
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 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.