MONTGOMERY, Ala., Nov. 21, 2006 -- Judge Mark Fuller issued an order Monday saying,
In a footnote, Fuller adds that "the inadvertent exposure of certain jurors to an extremely limited amount of news reporting on this case is insufficient to constitute exposure to extrinsic or extraneous evidence within the meaning of the Sixth Amendment."
Citing the well known case of Remmer v. United States, the judge gives the government until Dec. 1, 2006 to "rebut the presumption of prejudice." Fuller says the "Government must show the jurors' consideration of the extrinsic evidence was harmless to the defendants."
Assistant United States Attorney Steve Feaga says Tuesday, "We're not surprised by the Court's ruling. There were two approaches the Court could have taken under 11th Circuit precedent. The Court on its own could have said the information was prejudicial. The other approach is that if any extrinsic information reaches the jury the burden of proof shifts to the government. The Court chose the conservative approach and that is probably wise. We are confident we can meet our burden and can proceed to sentencing."
Siegelman attorney Vince Kilborn told me Tuesday afternoon, "It's a short order, but it's significant. The judge has now put the burden of proof on the government and this may boil down to the burden of proof." Unlike Mr. Feaga, Mr. Kilborn says he doesn't believe the government can show there has been no prejudice to the defendants.
"They can shout all they want to. Saying it doesn't really matter. Proving it is a lot different...The scales of justice in this case are supposed to be equal...Once something comes in that's not supposed to be there, the scales tilt. It doesn't matter if the tilt is five percent or 90 percent, there is no fair trial." The Mobile attorney says the government has problems proving there was no prejudice because they are prohibited from inquiring into the minds of jurors. He says the "government brief filed a couple of weeks ago says the 11th Circuit hasn't taken a position yet. The judge now says, 'I think Remmer's the law.'
"Mr. Feaga's not a mind reader. If the judge had thought the government was right (in their earlier brief), he would have ruled that way...I don't think (the ruling) is an indication of his (Judge Fuller's) conservativeness as much as it's an important decision that the government has the burden of proof and the judge is now giving them a chance to do it.. There is no argument...They will argue with words and no proof."
Kilborn says the copy of the indictment the jury had before the judge gave them the official copy was not the same as the one the judge gave them. He says the judge redacted a count from the final indictment that the jurors obviously had access to.
Also, Kilborn claims the jurors "had the government's playbook (the indictment) and not the defendants'. It's not fair...It's like the football team with the opposition's playbook saying,'We didn't' look at it; we just had it...kind of like a ship with a hole in it..." The counselor says this gave the jurors who had access to the indictment the chance to "take it home and study; they didn't have the defense side of the case."
Notes made by jurors were supposed to be left in the custody of the court when the jurors were not present.
Kilborn says he's also concerned about the preservation of the evidence. "We still think the judge should preserve that evidence and he can do it in a form where we can't even take a peek at it. If the case comes back (on appeal) and the evidence is gone; it's gone for good. In this case the burden of proof being on the government helps us...If everything disappears and memories are gone, they can't prove anything...With four emails there's got to be more...They're living with each other on a daily basis, it's natural."
Judge Fuller has repeatedly refused to delve into the whole issue of the emails brought up in defense motions. Kilborn says, "I think it's a dead issue right now...It won't be a dead issue on appeal...It makes what these jurors did scary. If all they were looking for was the indictment, what were they Googling when they hit on a news article...I don't think they had any business on the Internet during this case."
With regard to the judge's footnote concerning alleged limited exposure by jurors to news on the Internet, Kilborn says it is an issue. He says if you type in Siegelman or Scrushy you come up with tons of information and hit a nerve. He says it's an issue of degrees. "It's not like Googling something like Aunt Jemima pancakes or emailing your grandmother. I think it shows a totality of dangerous conduct on the Internet...I think the emails also show that."
Defendants also have until Dec. 1, 2006 to prepare a brief in response to the issues in the order. It is clear the judge does not want any more novels submitted for review. He has limited the government to 15 pages and individual defendants to 10 pages each if they file separate briefs and 15 pages if they choose the unlikely route of filing jointly. Kilborn tells me the defendants are finished with joint filings and he will easily be able to make his reply to the judge within the Court's 10 page limit.