MONTGOMERY, Ala., Oct. 25, 2006 -- Judge Mark Fuller has ordered an evidentiary hearing "on issues relating to possible post-trial contact with Juror #5" in the post-verdict phase of the government corruption trial involving former Governor Don Siegelman and businessman Richard Scrushy.
Judge Fuller also instruct both defendants to attend with emphasis: "Defendants Don Eugene Siegelman and Richard M. Scrushy SHALL attend along with their counsel."
Scrushy attorney Art Leach, as is customary, is reserving any comment for the courtroom, but in his reply brief to the government response concerning the defendants' joint motion for new trial, Leach had the following to say:
"Should this Court have any questions regarding the authenticity of affidavits, then Defendant Scrushy joins with the Government in its suggestion, 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."
In the brief Leach also requested that the judge enter an order directing the attorney for Juror A (also known as Juror #5) to provide the original affidavits to the Court in camera and under seal.
Acting U.S. attorney Louis Franklin says he has no comment and I have been unable to reach Siegelman attorney David McDonald.
The government response to the joint motion for new trial filed by the defendants had the following to say regarding the affidavits related to Juror #5:
"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...Numerous questions concerning the affidavits arise from even a cursory review of them."
The questions concern affidavits from the juror, his wife, and pastor allegedly passed to the Siegelman team by an attorney for the juror. The government alleges violation of Local Rule 47.1 which prohibits contact between lawyers and jurors without authorization of the court.
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."
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 wihtout 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.
In his reply to the government response filed last Friday, David McDonald had the following to say concerning allegations that attorneys may have violated local rule 47.1:
"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."
WSFA.com will cover events at the courthouse on Tuesday morning. It should be quite interesting.
NOTE: Juror A is the same as Juror #5