MONTGOMERY, ALa., Oct. 31, 2006 -- Judge Mark Fuller started the day off with a shot across the bow of all attorneys and left no doubt who was in charge of the courtroom during Tuesday's hearing into possible contact with a juror in the post-trial phase of the Siegelman/Scrushy government corruption trial.
After spending about an hour outlining the rules and where he was headed for the day and taking the attorneys to task for the language used in their motions and briefs, District Judge Mark Fuller questioned the two notaries that had notarized the affidavits of Juror #5, his pastor, and the juror's wife.
Later in the day testimony was heard from Rev. Stephen Hudson, Rev. Charles Winston, attorney Debra Winston, Alice Stanford, the wife of Juror #5 and Juror #5 himself.
Conflicting bits of testimony were heard throughout the long ordeal which began at 9 a.m. and finished after 7 p.m. With few breaks and a hour for lunch, the judge kept the process moving along marching in witnesses one after another. The laid back demeanor often seen during the trial was gone from the bench with the one exception of the time when a witness could not read some fine print and the judge had the witness try on his glasses to see if that would fix the problem.
Attorney Debra Bennett Winston told the judge she met with Mr. Kilborn and Mr. McDonald who represent former Governor Siegelman on August 20, 2006, but at that time she did not tell them of flaws in the notary process of the first affidavits. Those affidavits were given outside the presence of a notary and notarized the next day in the Birmingham/Bessemer area.
Winston admitted she prepared the second affidavit knowing she would forward it to Kilborn and McDonald as they were preparing a motion for a new trial.
"Was the given purpose, your intention of preparing the second affidavit with the intention it would be forwarded to Kilborn and McDonald as they were preparing a motion for a new trial?" Yes sir.
Winston was taken to task by Judge Fuller not at all happy with what he seemed to view as violation of local rule 47.1:
"Are you familiar with Local Rule 47.1?" "I believe I am your honor."
Judge Fuller reads rule 47.1 to Winston.
"Do you feel that does not encompass the conduct you just described to me?"
"No sir, he came to me..."
"To secret it to one of the parties so it can be filed as a post-trial motion?"
"My intent was to get it before the court," says Winston.
Winston told the judge she thought the issue involving the juror "was a defense issue" but said she didn't know how to answer the judge's question about why she only contacted defense attorneys.
Judge Fuller took the name of Winston's ISP after she answered a question saying there had been further e-mail contact after the meeting with the Siegelman attorneys.
Winston says she also mailed "the original of the affidavit" of Juror #5's second affidavit to attorney Vince Kilborn.
Winston also revealed around 20 years ago she was secretary to Richard Scrushy's boss when Scrushy was director of respiratory therapy at a Birmingham area facility. She says she has not met Scrushy nor has he been a speaker at her husband's church.
Winston said she tried to contact Scrushy attorney Terry Butts but a phone message left for Mr. Butts never got a response.
Winston's husband, Rev. Charles Winston prepared the first set of affidavits in the case. Specifically as it applies to Juror #5 Rev. Winston says he had told Juror #5, "I don't know where it's going...if it's something you've done, I will get my wife to represent you...My intention was to allow him to say what he needed to say and he wanted the judge to know how he felt...He probably talked that night more than he ever talked."
Judge Fuller asked Rev. Winston if Juror #5 read the affidavit after it was prepared - "Did he read it after it was prepared by you?"
"He did read it...he made the statement ‘that ain't me,'" says Winston. "We actually discussed it. It's basically what you said and at this point it was...what I understood him to say and that was satisfactory to him." Winston agreed with the judge that it was his summation of Juror #5's answers.
Juror #5 said in later testimony, "I don't read that well."
Things get a little interesting when the judge gets to exhibit #4, the first affidavit of Juror #5. Judge Fuller reminds Winston that he had indicated that Juror #5 had said "this ain't me" but Juror #5 ended up signing it anyway. The judge asks Winston to point out the "parts he (Juror #5) says are not his..or not accurate."
Winston says the part about deals being made. "It was not the way he wanted to say it. It's what he said, but not the way he said it." The next thing was "who brought in Internet information...When I indicated they were pulling information out of a box...not accurate that this was actually something in the box." Winston says someone did challenge one of the jurors and their knowledge but "he didn't see anybody put it in there." Winston says he's not sure if there the stuff in the box were court exhibits that should have been there of if they were things brought in from outside the jury room.
Winston says Juror #5 had problems with some of the terminology used saying, "Man, I don't talk like that."
Judge Fuller, "But he agreed to sign it anyway?" Yes.
The judge asked Winston if the document was accurate to the best of his knowledge and Winston responded in the affirmative.
In other testimony, the Rev. Stephen C. Hudson of Greater Sardis Missionary Baptist Church in Ozark told the judge he did not give a copy of his driver's license or identification to the Rev. Charles Winston who allegedly showed photocopies of identification to one of the notaries who took the affidavits. Mrs. Alice Stanford also says she did not give copies of her identification to Winston.
The first witness was notary Donna Jo Armstrong from Bessemer, Alabama. Ms. Armstrong told Judge Fuller that she was currently unemployed but had been engaged in property management.
She says she has been a notary, "off and on for over 30 years." She had been asked through a subpoena to bring records with her of any payments received for notarizing affidavits brought in by a Charles Winston but she did not bring any documentation with her because she didn't take any payment from Winston for notarizing affidavits of Stephen Hudson, pastor to juror#5, Alice Stanford, Juror #5's wife, and Juror#5.
Armstrong told Judge Fuller that Winston brought the documents to her office between 7:30-8:30 a.m. on Aug. 9, 2006 saying the documents had been completed the night before but there was no notary around to sign them. Winston also according to Armstrong brought with him photocopies of identification cards for the three affiants in question. In further questions by the government as relayed by Judge Fuller when Armstrong was brought back to the stand prior to lunch, the notary says in the matter of ten minutes she compared all the signatures on the photocopies with those on the affidavits prior to notarizing the documents.
Armstrong had earlier said that no one came into the office except Winston. In her second round of testimony, Armstrong relayed that it was not normal for her to notarize documents without the person being there and without a picture identification card.
"I knew that Mr. Winston was an officer of the court and when he asked me to do that (notarize the affidavits)I didn't think that was inappropriate," says Armstrong. "I felt like with him being a notary I was doing him a favor."
The judge asked Armstrong why if Winston was a notary, he did not sign the documents himself. Armstrong says she asked Winston that question and he relayed to her the reason was,"Because I prepared them."
Along with not taking any payment, Armstrong told the judge she had not been promised "anything of value" for performing her services and she denied that anyone associated with the government or either defendant had anything to do with her performing her services.
Ms. Dianne Flentory was the next witness to take the stand. Flentory is from Ozark, Alabama and was last employed in 2004 for the Wal-Mart distribution center in Brundidge. She told the judge she had been a notary for 12 years.
Unlike Ms. Armstrong, Ms. Flentory had her documents - a receipt book, and a log book she used to keep track of items she notarized. She notarized affidavits on Sept. 1, 2006 for which she received a payment of $10 from Rev. Stephen Hudson. Flentory took in $20 however because "we didn't have any change" and she was advised by Hudson to "keep the change."
Flentory says, "I was called by Rev. Hudson and asked if I was a notary...he had some documents to be notarized." Flentory told Judge Fuller childhood friend Alice Stanford picked her up at Flentory's home around 7:30-8:00 p.m. on the night in question and took her to see Hudson at Greater Sardis Missionary Baptist Church. She said under later questioning that she did not talk to Mrs. Stanford about the Scrushy/Siegelman case nor did she know that Juror #5 was a juror on that case. Flentory says she also did not discuss with Mrs. Stanford anything related to the affidavits she was going to be asked to notarize.
She says although she knew Mrs. Stanford, she did not know Juror #5 as well and that she had not had any contact with Mr. or Mrs. Winston or know them prior to that evening. Flentory says she knew Rev. Hudson because he was "a neighbor" but she did not attend Hudson's church. She prepared an affidavit with a statement from Juror #5, witnessed by Mrs. Stanford.
The affidavit was apparently faxed the next day to a Staples store in area code 770. Like Armstrong Flentory says she was not promised "anything of value" for her services, nor did she take anything other than the $20.
Things had begun with quite a bang a little after nine Tuesday morning when the judge called attorneys on the conduct for a "continuing lack of civility and professionalism in this case." The judge admonished attorneys that the motions and oral arguments that have been filed have been "replete with inflammatory language...and attacks" and were not helpful to the court. These comments came in the judge's opening comments in the hearing being conducted with regard to possible juror contact in the post trial phase of the Siegelman-Scrushy government corruption trial.
Fuller told attorneys their conduct was "out of line with what this court expects..with how each of you should act in these proceedings.
The judge made it clear he wants all "ad hominem attacks directed at opposing counsel" to stop. He says that if attorneys do not stop, they will be sanctioned by the court.
"I don't care who started it, who the worst offender is, how it began; I want it stopped and stopped immediately."
The judge says he does not want to hear or see any of the following words used in motions or briefs in the future, or any like them:
These are just a few of the words specifically mentioned. He told attorneys that "I do expect the parties to be their defendants' vigorous advocates" but he wanted them to attack the issues and "not each other.
Judge Fuller then went on to take up a second issue related to allegations of possible ex parte communication between himself and the jury foreman.
The judge referred to an article in the Montgomery Advertiser that alleged a note had been sent from the judge to the jury to ask about their progress and after which the foreman allegedly sent a note saying some jurors were lackadaisical. "The court has no knowledge of such a note," said Fuller.
Judge Fuller went on to outline all contacts of any form that he had with the juror and he stressed that in every case the attorneys were notified. The judge finished by denying the defendants' joint motion for new trial with regards to the portion of the motion having to do with possible improper contact between himself and the juror.