MONTGOMERY, Ala., Oct. 27, 2006 -- Judge John L. Carroll, a former magistrate judge in the Middle District of Alabama and currently dean of the Cumberland School of Law at Samford University, says the hearing called by District Judge Mark Fuller in the post-trial phase of the corruption case involving former Governor Don Siegelman and businessman Richard Scrushy is "really a disciplinary issue" and "doesn't have an effect on the underlying claims" concerning the facts in the government corruption trial case.
Carroll says, "The facts are the facts, it's how they were gathered that is the subject here...The judge is looking to find out whether or not there was a violation of Local Rule 47.1." Among other things, the local rule prohibits contact between jurors and attorneys without prior approval by the court.
He says if there was a violation attorneys could be sanctioned by the court. If the judge finds there was no violation "we go back to the original question about conducting an evidentiary inquiry (into alleged juror misconduct and the evidence related to that)."
The former magistrate judge says there is "no clear message" in Fuller's order. "He believes this is the first issue that has to be decided, how the information came into the public domain...On the other hand, he could have said he wanted to take up other issues (as well)."
"I would not be surprised to hear questions related to the e-mails as well... He could say to the attorneys I'm also concerned about this issue, do you mind talking about that."
"Nobody knows a whole lot about this. (We know) a juror gave an affidavit, but how it all came about is not certain."
The dean says Judge Fuller "has complete discretion."
"He could direct question at counsel, who would be ethically required to answer and tell the truth assuming the answer didn't violate any attorney-client privilege."
An interesting question could come if attorneys file affidavits with the court saying they have had no contact with any juror in the case.
He says with the filing of affidavits it would be "extremely unusual" for the judge to then question the attorneys. "It would get very complicated," says Carroll.
Carroll says "unless there's some clear external evidence" or the judge questions the juror and "he says an attorney is not telling the truth," the judge would most likely take the attorneys at their word.
He says a lawyer's falsifying an affidavit would not only be an ethical violation but a federal crime. Carroll says, "All the lawyers involved are very ethical and of high quality and I am confident they would not lie in an affidavit."
He could also place Scrushy and/or Siegelman under oath and ask them questions and he has the option of questioning the juror in chambers with or without attorneys present.
"I've seen cases where it's been done both ways, with the attorneys or by the judge him or herself. In any case it will be taken down by a court reporter. That's the only caveat, he has to make a record of the questioning so if and when the issue gets raised on appeal there's a record."
Asked about Richard Scrushy adding Jim Parkman to his defense team, Carroll contends it's not that unusual. "I think people think Parkman does a good job and is a good strategist. (It's just) having another member of the team, another brain, someone familiar with Scrushy and the legal issues involved and besides they spent a lot of time together in Birmingham. Art Leach won a lot of praise for the way he handled motions and issues up in Birmingham, so I don't think it's an indication that he (Scrushy) is dissatisfied."
The evidentiary hearing into possible post-trial contact with a juror is currently scheduled for 9 a.m. on Tuesday, Oct. 31, 2006 at the federal courthouse in Montgomery.