Scrushy Team Files Reply to Government

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.

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...."

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.)

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 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).

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.)