MONTGOMERY, Ala. Oct. 20, 2006 -- Attorneys for Richard Scrushy have filed a reply to the governments response to the joint Siegelman/Scrushy Motion for New Trial previously filed.
" In its response, the Government tells this Court that it should deny Defendant's motion for new trial outright, without any investigation of any kind, let alone an evidentiary hearing. The Government supports this dangerous entreaty with a 51-page brief that misleadingly describes the applicable law and burden of proof in regard to jury misconduct issues, ignores clear Eleventh Circuit precedent mandating an investigation or evidentiary hearing upon a colorable showing of extrinsic influence, misrepresents the scope of the limitations on inquiry into jury misconduct under Fed. R. Evid. 606(b), and, most tellingly, supports this suggestion with representations as to factual matters that are presently unknown by any party or the Court, along with reckless and unprofessional allegations of attorney misconduct, "manufacture" of evidence, and "jury tampering," as to which the Government offers not a scintilla of evidence.
The rhetoric and tone of the Government's response and accusations telegraph how desperate the Government is to convince this Court to deny Defendant's motion without any inquiry at all, and ignore what the Eleventh Circuit has repeatedly emphasized is "the court's duty to ensure that the jury verdict was in no way tainted by improper outside influences,..." United States v. Rowe, 906 F.2d 654, 656 (11th Cir. 1990).
The Government's suggestion that this Court sweep this entire issue under the carpet without inquiry is especially disingenuous when Defendants have been limited at this stage of the proceedings to whatever evidence they have fortuitously obtained under the strictures of Local Rule 47.1, which precludes any post-trial jury interviews without Court permission.
Especially in a jurisdiction where such limits apply, it is incumbent upon the Court to supervise and assist the parties in properly and appropriately investigating any substantial indication that the jury verdict was tainted by misconduct, most especially allegations of misconduct that include the exposure of the jury to extrinsic evidence that was not admitted in public proceedings before this Court and subject to the protections of the Rules of Evidence, and the rights to confrontation, cross examination and counsel.
The Government's position that his Court should not even investigate these allegations or hold any evidentiary hearing at all is a brazen effort to deny access to the truth about what in fact occurred with the jury in this case. By doing so, the Government is forsaking its duty and obligation to seek justice, not just convictions.
The Government's suggestion that this Court deny Defendant Scrushy's motion without any inquiry or evidentiary hearing is unsupported by law or fact, would lead this Court into clearly reversible error, and would result in a miscarriage of justice by denying Defendant a timely opportunity to obtain the facts necessary to determine if his conviction was tainted by jury misconduct in violation of the Sixth Amendment."
In the filing the attorneys say the government wants the defense to prove prejudice before there is a determination as to whether or not the jury was exposed to extrinsic evidence and how many jurors were involved.
"The Government asks this Court to leap to a conclusion on the ultimate merits of these allegations and deny Defendant's motion on the basis of Defendant's failure to prove prejudice before this Court finds out whether the jury received extrinsic evidence, where it came from, who brought it in, what the precise extrinsic evidence is, and how many jurors were exposed."
The filing goes on to say the court would make reversible error without further investigation:
"Unless this Court can make a determination, without any further investigation, that this jury was not exposed to any extrinsic evidence, or that the affidavits of Juror A telling of the Internet research that was brought into the jury room, and the admissions of Juror **** and Jury Foreman ***** that they conducted Internet research are completely untruthful, and the other evidence already submitted can be ignored, or what that evidence exactly was, and how many jurors heard about it, Defendant respectfully submits that this Court will commit clear reversible error under Eleventh Circuit precedent if this Court does not investigate and/or hold an evidentiary hearing. "
As to Federal Rule 606(b) which the government cited in its reply, the filing says the following:
"One thing is crystal clear in regard to Rule 606(b): it does not preclude, or limit in any way, this Court's authority and duty to investigate allegations of the jury's exposure to extrinsic evidence. And, as part of any such investigation or evidentiary hearing, Rule 606(b) does not in any way limit the questioning of jurors or their testimony as to the allegations that extrinsic evidence intruded into the jury room, where it came from, what it consisted of, and who heard it."
Addressing questions raised by the government attorneys for Scrushy deny they had anything to do with obtaining the affidavits related to Juror A:
"Neither undersigned counsel for Defendant Scrushy nor Defendant Scrushy himself had anything to do with obtaining the affidavits of Juror A, the juror's pastor, or the juror's wife. Counsel for Defendant Scrushy were first notified of the existence of all of the affidavits after the affidavits had been signed. This notification came from counsel for co-Defendant Siegelman, who also provided Defendant Scrushy's counsel with copies of the affidavits...."
"Many of the Government's questions regarding the affidavits have an obvious, and benign, answer. For instance, the fax tags and numbering of pages indicating that copies of the affidavits were faxed to or from various locations, including the offices of counsel for Defendant Siegelman, (Gov't Resp. at 8-9),7 are entirely consistent with the fact that once these affidavits were obtained by Defendant Siegelman's attorneys, they were shared with counsel of record in order to determine if and how a motion based on the contents of the affidavits should be filed.
Significantly, all of the fax tags contain dates that are subsequent to the date that the last affidavit was signed and notarized, (EXHIBIT 9), which appears to demonstrate that none of the faxes were sent out until after all of the affidavits had been finalized and provided to Defendant Siegelman's lawyers. The faxes tell this Court nothing about the authenticity of the original signed and notarized affidavits, which are apparently still in the possession of the lawyer representing Juror A. The only real question pertinent to the determination of this motion is the authenticity of the affidavits, not how they were ultimately distributed to counsel in preparation for the filing of this motion."
"It is up to the lawyers for Defendant Siegelman, who received these affidavits from Juror A's lawyer, to answer any questions the Court may have on these details. To the extent that any questions affecting the veracity of these affidavits and this Court's willingness to rely on them in determining whether Defendant Scrushy has made the requisite colorable showing to require further inquiry as to the exposure of the jury to extrinsic evidence, the appropriate course of action would be to hold a hearing and take testimony from everyone involved in these affidavits. The only incorrect, and unjustified, course of action would be the one the Government suggests, which is dismissal of Defendant's motion without any investigation or evidentiary hearing."
In a footnote the filing questions the knowledge of the government as to how fax machines function:
"The Government's argument is inconsistent with how fax tags and fax machines function. For instance, the Government contends that the fax tags on EXHIBITS 6 and 7 proves that "the affidavit of Juror A's pastor and wife were faxed to Defendant Siegelman's attorneys on September 8, 2006, at 4:30 p.m." (Gov't Resp. at 9.)
However, an examination of the fax tags in question, and the common-sense knowledge that it is the transmitting fax machine, not the receiving fax machine, that applies a tag to a faxed document, would support the inference that the document was faxed from "KRM Attorneys" rather than to "KRM Attorneys," as the Government claims. Either the Government has dishonestly represented this obvious fact or it just did not think through the logic as to the basis of their shotgun attack on the Juror A affidavits or maybe the Government is just simply grasping at straws to avoid an inquiry into what it fears may very well be a tainted verdict."
The filing goes on to state that an inquiry, "not the outright dismissal of Defendant's motion without further inquiry" is the way to resolve the questions about the many issues involved.
As to the government's question as to why the juror, who lives in Ozark, would file an affidavit in Jefferson County, the reply states:
"Similarly, the fact that the affidavits were notarized in a county other than where Juror A, his wife, and pastor reside gives rise to another prong of the Government's attack on the veracity of these affidavits. (Gov't Resp. a 12, 14.) Defendant Scrushy, quite simply, does not know the answer to this question, because neither he, nor his attorneys have communicated with any of the affiants or the lawyer who assisted in the preparation of the affidavits. One logical, and entirely benign, possibility is that Juror A sought legal advice from a lawyer in Birmingham (Jefferson County) and, in order to do so and minimize cost or inconvenience to a lawyer willing to help a former juror of limited financial means, the affiants traveled from Dale County to the lawyer's offices for advice and, ultimately, the execution of the first set of affidavits.
The second affidavit may have been finalized over the telephone and transmitted by mail or fax to Juror A's home county where Juror A signed and had it notarized. Again, to the extent that this Court has any questions regarding these matters which ultimately are collateral to the question of the authenticity of the affidavits (especially once the Court receives the original affidavits), this Court has the authority to resolve them with a simple and appropriate inquiry. Such an approach is what case law, common sense, and substantial fairness all dictate, not the outright dismissal of Defendant's motion as suggested by the Government.
The answers to the remaining questions raised by the Government relative to the identity of the individual assisting with the affidavits, the question and answer format, the existence of two affidavits by Juror A, and the precise wording of the affidavits are likewise outside the direct knowledge of Defendant Scrushy or his counsel.
It is up to the lawyers for Defendant Siegelman, who received these affidavits from Juror A's lawyer, to answer any questions the Court may have on these details. To the extent that any questions affecting the veracity of these affidavits and this Court's willingness to rely on them in determining whether Defendant Scrushy has made the requisite colorable showing to require further inquiry as to the exposure of the jury to extrinsic evidence, the appropriate course of action would be to hold a hearing and take testimony from everyone involved in these affidavits. The only incorrect, and unjustified, course of action would be the one the Government suggests, which is dismissal of Defendant's motion without any investigation or evidentiary hearing."
The filing again says defendant Scrushy would welcome an investigation:
"Should this Court have any questions regarding the authenticity of affidavits, then Defendant Scrushy joins with the Government in its suggestion, (Gov't Resp. at 11), that this Court should hold a hearing into the authenticity of the affidavits and whether the Government's accusations-without any evidence-of a violation of Local Rule 47.1 are justified. See Venske, 296 F.3d at 1289 (noting the trial court's decision to reserve ruling on merits of new trial motion pending a hearing on circumstances surrounding post trial contact with jurors).
Whatever this Court decides in its discretion is the appropriate procedure, one fact is clear: it would be entirely inappropriate, and contrary to the binding precedent of the Eleventh Circuit for this Court simply to disregard the affidavits in question-especially as to Defendant Scrushy who did not have anything to do with procuring the affidavits-and thereafter deny Defendant Scrushy's motion for new trial without the requisite investigation into the jury's exposure to extrinsic evidence."
Scrushy's attorney fire back hard at allegations made in the government filing concerning Richard Scrushy:
"This accusation is coupled with the Government's scurrilous accusation, again with no reference to any evidence or basis that: "Moreover, concerns about Defendant Scrushy tampering with the jury were raised during his criminal trial in the Northern District of Alabama last year." (Gov't Resp. at 17.)
Such naked assertions of grave misconduct have no place in a legal pleading. The Government's statement would be libelous and actionable if it were not in a legal pleading. The District Court in Birmingham made specific findings that it was the Government, not the Defendant, that improperly investigated the jury, and the transcripts concerning these events have been public for over a year.
The Government's inclusion of such a statement in its response is unprofessional and reveals the level of fear in Government quarters that this verdict is, indeed, tainted by jury misconduct that will be revealed upon proper investigation by this Court."