MONTGOMERY, Ala., Oct. 20, 2006 -- Attorneys for Governor Don Siegelman have filed their reply to the government response to the earlier filed Joint Motion for New Trial.
Right off the bat, the filing hits back hard at the government filing:
"The Government's shrill Response to the Defendants' Joint Motion for New Trial smacks of desperation. Rather than encouraging the Court to conduct an investigation to ensure that the jury's verdict is not tainted, the Government attacks the Defendants and their counsel. The Government apparently views Governor Siegelman's constitutional rights as an annoyance that should be overlooked in favor of "finality" of the jury's verdict. The Government does not respond to the merits of Defendants' Motion at all. In fact, the Government makes no effort to distinguish a single case cited in Governor Siegelman's Motion for New Trial. "
"The Government's salacious personal attacks against the Defendants and their counsel appear to be calculated to distract this Court from the obvious: the Defendants are entitled to an evidentiary hearing, and, thereafter, the Defendants are entitled to a new trial."
Acting U.S. attorney Louis Franklin told wsfa.com, "We did not attack them, we attacked the evidence they put in front of this court and we attacked the lack of authenticity, reliability, and believability.. It was an attack on the whole idea that (a juror) needed to go to a lawyer in Birmingham...it creates a cloud of suspicioun they still have not addressed...Them getting defensive leads us to believe it is more suspicious than we thought it was...They should have explained what they did with their evidence and they did not and we're pointing out to the court they still didn't explain it."
In the filing, Siegelman's attorneys state contrary to government allegations that they did not violate local rule 47.1 having to do with contact with jurors.
"Governor Siegelman welcomes an evidentiary hearing concerning the affidavits submitted to the Court in support of the Joint Motion for New Trial...The Government's rank speculation as to how these affidavits came to be is pure fiction. The Court must focus on the facts before it, not the fantasies of a Government blinded by power, ambition, and a misplaced sense of justice."
The filing says Siegelman's attorneys were contacted by phone by another lawyer, one for named Juror A and that is what led to the acquisition of the said affidavits in which Juror A says he felt uneasy about his verdict and alleging outside information was brought into the jury room, among other allegations.
"In this case, both affidavits of Juror A make clear that extrinsic information was interjected into jury deliberations. Juror A's affidavits have already been confirmed by two jurors who have publicly admitted that they obtained extrinsic information from the Internet for use during jury deliberations. And, the Defendants have submitted several emails which suggest that two jurors predetermined the Defendants' guilt, defied the Court's Orders, improperly persuaded jurors outside of jury deliberations, and otherwise improperly orchestrated the guilty verdict."
The reply goes on to question why the government has such a strong objection to an inquiry into the situation:
"The Government argues, wrongly, that Fed.R.Evid. 606(b) prohibits a judicial inquiry into the issues of alleged juror misconduct and extrinsic evidence. First of all, the Government's vigorous argument against any form of investigation is peculiar. Is it not the Government's job to investigate crimes?
Both sides can agree that no matter which side is proved correct, a crime has been committed: if the Defendants are right, two jurors repeatedly and willfully defied this Court's instructions and orchestrated a guilty verdict by interjecting extrinsic evidence into jury deliberations, conspiring on how to obtain convictions, and by lobbying individual jurors outside of jury deliberations; if the Government is right (and the emails filed with the Court are forgeries), then someone is deliberately tampering with a jury's verdict. An unbiased government that is solely interested in justice, a fair trial, and protecting all citizens' constitutional rights would demand a judicial inquiry into this matter."
Furthermore, concerning extrinsic evidence that may have possibly entered jury deliberations the pleading says this:
"The Government repeatedly argues that the extrinsic evidence viewed by the jury foreman and the other juror had no effect on the verdict because both jurors have already given statements saying this material had no impact on the verdict. However, this is exactly the type of conclusion that Fed.R.Evid. 606(b) prohibits this Court from making. This Court must determine what extrinsic evidence was viewed by the jurors, and, without inquiring into the mental processes of each juror, determine the effect such information may have had on the verdict."
David McDonald goes on to write that an investigation into the e-mails and possible extrinsic evidence being brought into the jury deliberation is necessary to "preserve the public's confidence in the integrity of the judicial system."
"The Defendants' Motions for New Trial are premised upon extraneous evidence brought into jury deliberations and evidence that two jurors repeatedly defied this Court's Orders. The juror misconduct suggested by the emails submitted to the Court should be thoroughly investigated. They are not protected by Fed.R.Evid. 606(b). This Court must investigate these emails and the extent to which extrinsic evidence entered the jury room to ensure that Governor Siegelman's Sixth Amendment right to a fair trial before an impartial jury was protected. Further, this Court should investigate allegations of egregious juror misconduct to preserve the public's confidence in the integrity of the judicial system."
More to come shortly.