Differing Memories of Jury Deliberations during Scrushy/Siegelman Trial

MONTGOMERY, Ala., Nov. 18, 2006 -- Judge Fuller made it clear in his instructions that the scope of his hearing into whether extraneous information was brought into the jury process or any undue influence was brought to bear on any juror during the corruption trial involving former Governor Don Siegelman and businessman Richard Scrushy would be limited.

He told jurors that the Court's instructions, the evidence, and the exhibits admitted into evidence were the only things the jurors should have considered in their deliberations.  Making sure he covered many points of law in his statements the judge advised the jurors he was "not trying to get them to testify about the effect on their minds or influence on their emotions."

The questioning was of a limited nature and the questions carefully crafted by the judge.  Unlike the previous hearing, he did not allow attorneys to raise with him questions specific to each juror; they were only allowed to raise initial objections to his proposed set of questions and after that, until the end, attorneys had to basically remain silent.

Before things got started the judge did allow the attorneys to say a few things.  Siegelman's attorneys wanted the jurors asked about whether they have heard anything related to Siegelman or Scrushy.  The judge reads question four which refers to any defendant.  Also, Kilborn asks about text messages that the jurors may have received during the case.  Kilborn also brought up emails as possible extraneous information.

"I do not want to deliberate too much about these e-mails," says the judge.  He says only if it is related to extraneous information.  Kilborn says some of the jurors may not understand.

Mr. Leach, speaking for Mr. Scrushy, tells the judge he had no objection to the judge's proposed questions but was concerned about not being able to follow up on questions to individual jurors.  Judge Fuller told Mr. Leach if he (the judge) felt it necessary he "may suspend that limitation."

"Obviously from the defense perspective, we're making a record for the 11th Circuit..."  Leach proposes that they be allowed to hand write their thoughts to make a record for later review.  "In terms of your questioning..what computers they used ... ought to be front loaded...I think just the court's awareness of those items..to include text messaging..is important in letting the jurors be aware..."

Leach wants questions asked about contact with the press and others.  He wants the judge to look particularly at research and requests the timing period of the questioning be expanded to the period when the jurors got their summons."

Leach is asking the court to inquire about at least three jurors and their e-mail addresses.

Mr. Feaga, speaking for the government, says Mr. Leach is asking for too many questions and Feaga says he objects to  questions about who jurors have talked to post-trial.  "They are proceeding to go on a fishing expedition."

Feaga says information was obtained under highly suspicious circumstances. "We understand the court wanting to get to the bottom of it."  Feaga only wants the jurors questioned about whether or not they brought extraneous information into the jury process.

Feaga says regarding e-mails the only question should be did they send e-mails.  "I know the court is concerned your honor...We are very concerned about what is going to happen today...but the extensive level of questioning the court is about to embark on...we are on a fishing expedition...is an allegation by defense attorneys going to generate an inquisition of every jury...We are very concerned and ask the court to reconsider..."

Leach's question about extending the time frame is going to be disallowed.  It will only be from the time of the oath.

After a brief break, testimony began.

One-by-one jurors said they were not influenced by outside information in their jury deliberations.  But all's not as clear as it would seem.  A lot of the testimony complimented other testimony and a lot raised more questions than were answered.

Several jurors indicated that juror #7, the foreman Sam Hendrix and juror #40, now known to be Katie Langer told the jury they had gone on the Internet.  In Hendrix's case he reiterated he wanted to know more about how to handle his duties as a foreman.  In Langer's case, she says she downloaded a copy of the indictment from the Middle District Court's Web site and saw a headline on the Montgomery Advertiser Web site.  But Langer's testimony may be slightly different than the interview she had with WSFA.  It may just be an issue of semantics, but I'll post it here and readers can decide for themselves.

In her testimony under questioning from Judge Fuller on Friday, Ms. Langer says the following:

"I saw a headline on an Internet site.  I did not read the article, but did see the headline."  She says she thought it was on the Montgomery Advertiser Web site and she said she didn't remember the headline or when she read it but believed it to be about the time "Faulkner got their accreditation."

In an interview earlier in the year with WSFA's Sally Pitts, Ms. Langer says the following:

Q:  You couldn't watch any news.  You stuck to all that?
A:  I did.  I saw one Inter-I did see one Internet article.  So I'll confess.

What follows below is a recap of testimony given in the hearing with some additional commentary from counsel at the end and from discussions afterwards.  It was taken during the hearing as the testimony was being given, so unfortunately it is not a complete verbatim transcript but will give you an idea of what transpired so you can judge events for yourself.

Juror #22 started things off right away, referring to juror #7, the foreman, "He said he looked up on the Internet what a foreperson's function was and what was required.  This took place after we elected him.  He didn't bring us anything to view.  He just said he looked up as to what his job was. "  But asked about the often discussed foreman's book, #22 told Judge Fuller it was the one provided by the court and to her knowledge there was "nothing in the book not provided by the court...After we elected him, the next day he came back to say he looked up some information to see what he was supposed to do."  She says he did not show them or tell them anything specifically.

Juror #38 says,"One of the jurors said one of the TV stations had all the proceedings on there and that was mentioned."  Juror #7, the foreperson, is the one who said this.  It was brought up one day about a pamphlet and allegedly the following was said by a juror,"Well you can go to the Internet and get it.  There's nothing on there that we're not hearing anyway," is what the foreperson supposedly said to other jurors.

"He didn't bring up specific details," according to #38.  #38 says #7 was the only one who discussed this type of information.

Another juror, #66, says "There was talk about information that was on the Internet."  #7, #40 said they had been on the Internet according to #66.

As to #7, the foreperson, "He said the role of the foreman and just other information related to the process and he may have downloaded ...when he came back he brought in detailed information about how he should consider each one of the charges."  She says it was about the indictment and looked up information on one of the defendants who is not here today, how long he had been with his employer.

She says he "did bring in documents...we didn't see the hard copy but he did bring it in."

She says #7 spent time talking about it on the second full day about the role of the foreman.  She says he had his hand in his jacket at one point.

She says on the counts of the indictment he researched, #7 had information charge by charge but she didn't see any of the information.  "He didn't read it...but he had it."

She says regarding one of the defendants he spent about 10-15 minutes talking about the defendant that was acquitted.  She says she did not see the information.

With regards to juror #40.  #66 says #40 went to the Internet and put her evidence into the different charges.  She says #40 said she read an article on the trial.  "She said something about it but I don't remember exactly...She said she did talk about the article and made a comment about the writer."

She says #40 looked at the indictment on the District Court web site.  #66 says #40 looked at it over a weekend and took notes on each count of the indictment.

Juror #40 later admitted she had gotten a copy of the indictment off the Middle District court's Web site.  Another juror said no one brought or discussed any outside information into the jury room.

Juror #8 basically has no knowledge of extraneous information in the jury room.  The judge says he has heard from other jurors that the foreperson had discussed information from outside with the jurors and asks if anything was discussed with #8 and  #8 says no.

Juror #30 says there was a discussion "among ourselves" about possible exposure to extraneous information.  #30 says #40 talked."The juror just said that that the whole trial was on the Internet daily."  He says "This was during the whole trial."  "She just said that the trial was on the Internet."  He says the juror did not disclose any of that content to other jurors "to his knowledge."

When asked if anyone else had been exposed to information he said the thought #7 had knowledge of the Internet.

"30 says, #7 was "dictating and briefing and doing it in a court like style.  He was running it like a court."  He says  #7 wasn't acting inappropriately.

The aforementioned Juror #40 accused of surfing the Internet says she was not influenced by anyone nor did she discuss with anyone outside the jury room.  She says, "I saw a headline on the Internet, I did not read the article but did see the headline."  She says she thinks it was on the Montgomery Advertiser, she says it was after the time Faulkner got their accreditation.  She says she did not read anything else.

The judge says she had the right to look at the Internet.  She says she didn't look at any other media sources.  She says she doesn't recall what the headline was and says she did not discuss anything with any other juror. She says she did not attempt to independently verify anything about the case.

She says "I do not recall it being discussed in my presence."  This in reference to Juror #7 and discussion of foreperson duties.  She says she brought to the court some documents.  A manilla folder a copy of the subpoena and some other documents CE6A.  "It is a copy of the indictment ."  She says she got the copy off the Middle District web site.

She says her copy is not different.  "I just thought that it would be nice to read the indictment...you don't get the opportunity to sit and read a document of this length.:  She says she did not bring the document in, but she may have mentioned that she had seen a copy of the indictment on the Web site.  She says she talked about it maybe a minute.  She says no one questioned her.

She says she may have read the document one time because she was tired when she got home.  She says "I never brought any document into the jury room.  I never saw anyone bring any documents into the jury room."

"I didn't hear anybody talk about anything like that - no."

Female juror #63 didn't remember the foreman discussing outside information but she did testify to some things she believes she remembered about Juror #40.

"I'm thinking it was a transcript...I seen it...It looked like some of the information about the transcript that was here."  Judge Fuller asks, "Could it have been a copy of the indictment?"  "Yes I think that was it," says #63.

The judge showed #63 Court's Exhibit 6A, which #40 brought to the judge.  #63 said she didn't remember seeing all of it.  #40 earlier testified she didn't bring anything in.  The juror says #40 showed the front page and said she had it.  Juror #63 says she "can't recall" if #40 read it to her or other jurors.

Do you know for sure it was something juror #40 brought in on her own or already in the jury room.  "I'm sure she brought it in.  I'm thinking it was in her coat," says #63.

"The only thing I can remember is she says she downloaded it from the Internet."  The juror says it could have been exhibit 6A.  She says she doesn't recall anything else being brought in.

Next came Juror #29, another female juror.  Starting with #40, "I think during the case she went on line and got a copy of the indictment."  #29 says she is not aware that #40 brought a copy of the indictment into the jury room.

"She indicated she had been on line and saw it out there."  The juror says there was no discussion about having seen the indictment on the Internet except for a minute.  "They said she shouldn't have looked at it and that was about it," says #29.

As to #7, "He indicated he went online and pulled up information on what a foreman should do."  She says she doesn't recall when it happened.  "He just indicated what he should be doing, probably about two or three minutes."

She says she did not see any information brought in by #40 and she also says #7s information was not inconsistent with the court's instructions to the jury.

Juror #16 was next.  Another female juror with no documents.

"It was just brought to the attention that the jury foreperson looked up information as to what his role was.  He said he had looked it up on the Internet...His role as a foreperson... I think it was our second day of deliberation."

She says she is sure that this happened at the beginning of that day's deliberations "because we were all confused...What I recall is the second day he just let us know he had looked up instructions as to what his role was to be."  She says he did not go into specifics, just announced he had looked it up. She says he did not indicate he had looked up anything else about this case.

Juror #7, the foreman came next.  The foreman says he has a document and he has brought everything he has."I had some inadvertent exposure...I get two newspapers delivered to my house and I would see the headlines but I did not read those articles."  He says he also saw things on the Internet but did not read them.  He says he followed the court's instructions and did not read stories during the trial..  "I did after the trial."

The foreman says he did not read any articles anywhere.  He says he doesn't believe he discussed anything about headlines to other members of the jury. "I really don't think I did."

"Did you view or did you hear any material from any books, newspapers, Internet sites or any other source related to any issue..or to any factual issue related to this case?"  "I'm not sure how to answer that...There's a document here I brought with me...This is a document on the Court's web site about the role of the foreman and the jury."

The foreman says, "Early in the deliberation process as we really struggled how to comprehend and understand the organization of the indictment as well as the instructional book, it occurred to me if I better understood...I located a copy of the indictment I believe on the District Court's web site and made some organizational type notes to help me better understand how that document was written and help me better understand..."  He says he doesn't remember printing out the jury foreman information.  "I remember saying okay that's what I'm supposed to do...I don't remember everything you said."

As to his copy of the indictment and the notes he made on it, "I believe I threw it away at home...my notes were really organizational in nature," the foreman says. "We were in deliberation at that time."  He says he brought the document into the jury room, but does not believe he shared it with anyone.  "I used it as a guide to myself as to how the two documents would work together."

He says, "There wasn't a lot of study time so that's what led me to do what I did."  He says he's aware the Court provided him a copy of the indictment.

The foreman says he doesn't remember any discussion about the items and he says he referenced the information himself and did not share it with anyone.

He says he believes juror #40 also found a copy of the indictment.  "Just she had read that...I never saw a copy."  He says "It seems like it might have been said to the group as a whole but I don't recall exactly."  He says, "I don't remember anything being said to her related to that."  The foreman says, "I have no reason to suspect (she saw anything else) except that."

As to whether or not his copy of the indictment was the same as that given to him in Court, "I can't say for sure this is the exact same...I do not know it is the same...It well could be.

As to the document on the duties of a foreperson, "I scanned down to it to get to the part that talked about the role of the jury foreperson," said Hendrix.

The judge asks him to read, "In this District jurors elect a foreperson...must give every juror a fair opportunity to express his or her views."  "I recall reading words essentially to that effect...I don't remember printing it out."

Juror #5 is next.    He says no one outside the jury room tried to influence him.  #5 now says no one said anything to him or showed him anything outside of what was provided by the court and then changes his answer to yes.  He says #16, then changes it to #40.

"It wasn't anything she had..just what she said...someone said because of all the information she had she had to have gone on the Internet...she said she went and looked up a book...she went on the Internet to find the book that you had gave the foreman."  He says a copy of the book given to the foreman was made and given to the rest of the jury by the court.  "That was all that was said about it...there was only one copy...before you gave us all a copy."

"That was all she said she's done..she just said she looked at the book you gave the foreman."

He says he never saw her bring anything in to the jury room and he is not aware of any other extraneous information.  This contradicted #5's statements in his earlier affidavit concerning outside information being brought into the jury room.

Juror #68 is the next witness.  She is a female.  She has no documents in her possession.  She hesitates, the judge says is there anything you want to tell me, "I believe #7 read something about how to go about what we were doing...I don't know how it came about...I just know he was worried about what we were doing and wanted to better go about the process."  She says, "I had heard he was worried about being the foreman and wanted to do it to the best of his ability...I never saw anything..."  She says she never talked to anyone who says they saw anything.  "He just stated he wanted to do a good job and he wanted to know what a foreman does...maybe three or four minutes."

She says no one brought any outside information in.

Following the testimony, the judge asks for objections for the record and after Mr. Feaga basically has no objections, Mr. McDonald speaks representing Governor Siegelman.

"I'd like to take a couple of minutes...and outline areas we thought should have been covered in greater detail...Juror #66 started to talk about a conversation with #7 and the original language led me to believe it was right after the deadlock...around the time of the Allen charge...That was the time I stood up and asked for a sidebar...we obviously have contradictory testimony...what's more important is the timing of the extraneous evidence coming in.."

"As regards Juror #40, there were lots of questions that came to mind during your honor's examination...how did this particular juror know to go to the Middle District's web site...what searches were conducted...it seems odd to me a layman would go directly to the Middle District...what else was read on that...we did search and couldn't find it...I understand your honor took it down...but the general instructions on the Web site indicate there are rulings of the Court on that web site...did she even see or run across any of your honor's rulings when she was looking."

The judge says, "There was a link to the indictment...that's the only document on that Web site...no other documents than the PACER account.  On the summons it has the court's Web site so they can look up other information and they're directed to look at that from the questionnaire."

Mr. McDonald continues, "Now we do have two jurors #40 and #7 that have downloaded indictments that are substantially different from the indictment that went to the jury...Quickly, still on juror #40 there were other jurors who mentioned that she at least knew there was a daily record of the trial.. I would ask that your honor have her confirm or deny to what juror #30 testified."

"Back to the indictment...was this the only copy she ever had...did she make notes...of course it gets a little bit blurry...I thought I understood jurors to testify they had seen documents with notes on them...Just for the record motions have been filed under seal...I want to make clear for appellate purposes Gov. Siegelman has adopted motions filed by Scrushy's counsel under seal..."

The judge says if McDonald wishes to articulate things being adopted he will give him until the 27th.  "As regards juror #40 we would have asked them to authenticate any e-mail that could be attributed to them...you made it clear you didn't want to get into other issues related to the e-mail...we are preserving our objections...this would have been the best time to authenticate," says Mr. McDonald.

"One e-mail that comes to mind in particular is the one in regards to the sentencing...you asked about that...for us to confirm or deny whether any of these e-mail addresses belong to them...either what we have is bogus e-mails or folks who don't remember e-mails were sent..at this time I would resubmit our request that the court try to authenticate...I understand your honor has many different issues in front of him, the 6th amendment issue should be preeminent at this stage...I would request that juror 40 respond to testimony from #66, 30, and #5...give her a chance to explain and reconcile that with the testimony she gave."

"The best evidence would have been from the computers...particularly the conversations occurring in the e-mail before the case was even given to the jury...the only way to reconcile is to take the ISP...others to obtain by the court to preserve the evidence..."

Mr. Leach is up for Mr. Scrushy and is concerned that the court has not looked at any other corroborating information about outside influence.  "Our number one objection is there is corroborating information out there which the court has denied...we suggest by getting ISP providers..the court would know what information was out there and then question the jury...so we object procedurally that the court did not conduct that before this hearing..."

Mr. Leach is also concerned about the testimony of Juror #5 who was not as strong on the witness stand as his previous affidavits indicated he might be.

"We ask that you bring back in #5, I think today he was struggling to understand the Court's testimony...his prior testimony and the testimony taken in chambers....he was struggling today and I would ask you walk him through some things...he spoke in the past that his affidavit was accurate..."

Mr. Leach also wants the judge to question jurors in chambers, "We ask that each juror be asked in chambers what e-mail address  and ISP (they used during the trial).  There are e-mail addresses unascertained right now...I know one side of that communication I do not know the other side...that particular e-mail (related to whether or not anyone discussed the penalties that could be awaiting defendants if convicted) is something that needs to be looked at...I just don't know until we ask those questions in terms of what e-mail addresses they were using..Specifically there's one side of an e-mail if it is authenticated...what was the nature of that communication...I would ask that you bring that juror back...4 out of 6 jurors indicated Internet searches had occurred...because those are consistent with two jurors in that case the judge should subpoena the ISP,.. what was searched, what was downloaded...The overall questioning from the court in one respect misses the focus...it's not just about what may have been downloaded and carried into the jury room...what did they assimilate and carry in whether there was paper or not...what information was out there..."

I don't think I can ask that says Judge Fuller.  I'm prohibited from asking "Did it having any impact on your deliberation."

"The point I'm trying to make judge is volume...I think one of the things you would find is if that kind of daily information was occurring...you could then find out what kind of effect it had on the deliberative process."  Juror ? said materials were pulled out of #7's pocket..."

"We would specifically ask if there has been any contact with each other leading up to their testimony...to me there is a conflict with regards to Juror 66..if I'm not mistaken #66 says #40 had a copy of the indictment with notes... I don't believe it has been ascertained if those notes are present here and if it contained information extraneous to the case.  I think Juror 30 said Juror 7 told that juror there was daily reporting of the case..Judge 66 testified Juror 7 looked up information on a defendant that has been acquitted...this again shows the problem with defining the scope of information pulled off the Internet...we supplied an affidavit from an expert to explain how that information could be harvested by the court...Two jurors supposedly went to the same place to get a copy of the indictment..."

"Tying into McDonald's question and the Court's Web site...did either of them open a PACER account...Your honor I believe the search experts would show all that information through the ISP provider...all jurors should have been asked whether there was text messaging or e-mailing..."

"We do have at least one e-mail which has to do with extraneous information...I suggest respectfully that you should make inquiry...Judge one thing that is unclear to me...where and by whom did they receive copies of the indictment, juror service pamphlet..I think the testimony is the pamphlet is on the Web site...If I remember the affidavit of juror #5 that was requested and provided...it could be that information was provided by the foreperson..."  "Or that juror #5 could be mistaken," says the judge.

"It was not an exhibit the court provided to the jury," says the judge.

"Finally in terms of reasonable investigation of this court...based on all the jurors that have talked about Internet searches there can be little doubt there were Internet searches..whether we get access or not...we respectfully request the court go to the sources outlined in our sealed motion.."

"If I'm not mistaken notes taken during the trial were not available to jurors outside the courtroom...with the possibility those notes came from her research...Juror 66 testified that Juror #40 worked on the indictment she downloaded over the weekend...#40 also testified she wanted to work on it over the weekend...if it is over the weekend what would be her source of the notes."

Mr. Feaga then is given the opportunity by the judge to take on arguments made by Mr. McDonald and Mr. Leach.

As to Mr. McDonald, "Mr. McDonald says Juror #66 should have been asked more detailed questions...it's our position the court asked detailed questions and there was no need to ask any more detailed questions of Juror #66...we don't think it odd that juror #40 would get to the Middle District Web site...he said that other jurors said #40 took notes and wanted more questions asked about what was on the notes...the court asked if anything was brought in that would be considered extraneous information...we don't know how the court could have been any clearer...the court gave #40 the extraordinary step of asking her for anything and everything she had..you would have never satisfied these defense attorneys or their clients..saying you should ask about these e-mails...they have no idea if they were accurate ...they have a published press account down in Mobile where #40 disavows knowledge...as to "penalty too severe" e-mails the court asked...the court's questions more than adequately covered that..."

"There is another very important issue...the right of the public to a fair trial, the right to future fair trials...the last thing this court wants to do is to tell every juror that the very criminals that they convicted  (can now come in and interrogate jurors who did nothing wrong).  We think the court handled that very well.

"Mr. Leach says they were denied the right to corroborate and impeach these jurors..so they could corroborate and impeach the testimony...and now these convicted criminals want to come in here and suggest they have the right to interrogate these citizens...I guess they want you to take the affidavit obtained in a highly questionable fashion...the lawyer said she went back up there because she didn't think the first one was good enough...it was important to give them some argument."

"We believe these people (the jurors) were telling the truth...we would submit they told the absolute truth..Your honor...juror 66 said juror 40 conducted research and had notes...we had what we could get...they don't exist...40 brought what she had...nothing was brought in as was testified to...the information about Juror 7 looking up info on an acquitted defendant...the court asked and the answers were they had not...Mr. Scrushy wanted him to bring up the fact 38 said someone told her you could get a copy of jury instructions off the Internet...Mr. Scrushy said the notes should be inquired into and we object to the court going in. We think the court raised an extraordinary examination...a serious question about obstruction of justice in this case...King Solomon once said there are two things that will never be satisfied...we would submit a third one, defense attorneys..."

"The court has conducted an inquiry...these issues that are raised in these motions to not merit relief they seek...the court has done all that it needs to do or should do and should render a decision."

Acting U.S. Attorney Louis Franklin says there was "absolutely nothing" in the testimony "that indicated the jury was influenced by anything other than the evidence."

Scrushy attorney Jim Parkman said during the lunch recess, "Downloading the indictment is not a concern.  It's what went with it and that's what the concern is...that means other information that was gained that they filled in to the indictment as to what the evidence is...that is my concern."

"It did come out,"says Parkman,"It came out with some of the jurors about bringing in information and how they worked in some of the facts with the indictment.  That's what's a concern of mine.  I don't know about the judge, but that's my concern."

As to the whole issue of preservation of the evidence, ISP records and whether or not the requests of the defense were too intrusive into the lives of the jurors and may have a chilling impact on whether or not people want to serve on future juries, Siegelman attorney Vince Kilborn told me Saturday, "The have a right to privacy, but when they step into a jury box they take an oath.  The right to privacy takes second place to that oath and if it didn't the jury system wouldn't work."

Siegelman's attorney says if it hasn't already happened, "The next federal judge is going to say don't go to the Internet and don't e-mail or text message."  I told Mr. Kilborn that federal Judge L. Scott Coogler was already admonishing jurors not to e-mail each other in his daily jury instructions and has told jurors specifically about having to have had a case retried because a juror brought a map to the jury room they downloaded from the Internet.

"I think it may have a chilling effect, but the chilling effect will be good...they should be afraid if they violate his order they are going to get caught.  Don't go (to the Internet).  You can be found out and we are going to trace it.  That's a good rule that cuts both ways and ensures a fair trial."

Kilborn says the defendants are not the only ones that will be protected, "It's not just the right to protect the defendant, it protects the government which may have things it doesn't want the defense to know." Kilborn went on to give a hypothetical about a government witness that has a shady past.  "The government may not want that brought up, but jurors could look it up on the Internet and the government would be damaged."  He says some day soon instead of the defense being the one impacted by a jury's seemingly harmless conduct, "the reverse would be true."

Reported by:  Helen Hammons