Attorneys for Richard Scrushy, in what appears to be preparation for eventual appeal to the 11th Circuit, say federal District Judge Mark Fuller's inquiry into the possible introduction of extrinsic evidence into the jury process was "insufficient to explore the entire picture of the jury's exposure." More >>
Kilborn: "...If Your Honor would include in extraneous information any text messaging that they received about the case and not just e-mails, but text messaging. And the last one would be that obviouslyMore >>
Examination of Juror 22
BY THE COURT
(complies) I am going to hand you what has been marked as Court's Exhibit 1, and I know that that has your name on that exhibit. IMore >>
Juror 30 (Patial, More shortly) Q. During the time that you were serving as a juror did any other juror say or do anything that caused you to believe that he or she may have been exposed to extraneousMore >>
BY THE COURT
Good morning. Let me start off by again thanking you for your appearance today. I have handed you what has been marked as Court's Exhibit 2, and I believe you have already seenMore >>
Juror 66 (Excerpt taken from official transcript.) Q. Speak into the microphone so that we can hear you if you would, please, Juror Number 66. Did anyone other than another juror try to influence yourMore >>
MONTGOMERY, Ala., Nov. 30, 2006 -- Well, well, well. As much as we try not to be part of the news it now appears WSFA's Courtroom Chronicles has become part of the official court record in the Siegelman/Scrushy corruption trial. Friday afternoon Judge Fuller granted the motion to supplement the record in the case.
In a motion filed this morning asking to again supplement the record in the case, counsel for Mr. Scrushy say they are again doing this, "In order to properly make and preserve the record in this case, in light of testimony by Jurors 30 and 38 in the hearing held before this Court on November 17, 2006, Defendant is respectfully asking leave of this Court to file this second motion to supplement the record in this case, so that Defendant may effectively present argument to this Court in his brief to be filed by December 1, 2006, and to make and preserve the record in this matter should any appeal to the Eleventh Circuit on this issue be necessary by any party to this case."
In the filing, the attorneys argue the following:
"4. In the hearing on November 17, 2006, Juror 30 testified that "[Juror 40] said that the trial -- the whole trial was on the Internet daily, you know, so that's why I assumed that she probably read through it on the Internet." (T-71).
5. Juror 38 testified: "There was one of the jurors said that they had been on the Internet and -- well, it was like one of the TV stations had all the proceedings was on the Internet, you could go read it, and that was mentioned. And that's the only thing that I know of that they had read what was going on in the court. I mean it wasn't anything else besides what had happened here." (T-38.) Juror 38 identified the juror as Juror 7. (T-38).
6. Juror 38 further testified to the following:
Q. [Court]: Was that part of the Court's instructions to the jury?
A. [Juror 38]: Yes, sir. It was brought up one day that one of the jurors had -- well, we'd each like to have one of those, you know. And he made the statement, said well, you can go on the Internet and get it. Said all this stuff is on the Internet. And it was brought up to him then well, why are you looking on the Internet. [Juror 7] said well, there's nothing on there that we are not hearing right here anyway. And then later he came to you and had those copies run off so each one of us would have one. (T-39.).
7. Even though Juror 38 testified that they were told "that there was nothing on there that we are not hearing right here anyway," (T-39), a review of the WSFA "Courtroom Chronicles," the only TV station with a daily blogger report on the Internet, reveals a different picture of what was available on a daily basis to anyone who accessed the Courtroom Chronicles via the Internet.
8. Attached is a composite exhibit numbered as Defendant's EXHIBIT 22. This exhibit consists of two parts that were all taken directly from the Web site maintained by WSFA (http://wsfatv.blogs.com/courtroom_chronicles/). The first part is marked Defendant's EXHIBIT 22-A, and consists of the Courtroom Chronicles that were posted on the Internet daily throughout May 2006. Defendant's EXHIBIT 22-B consists of the Courtroom Chronicles that were posted on the Internet daily throughout June 2006.
9. These Courtroom Chronicles contain extensive extrinsic information about the case and the Defendants that the jury would not have heard in the courtroom. For instance, the Courtroom Chronicles covered proceedings when the jury was excused from the courtroom by the Court for hearings and arguments to be held outside their presence.
10. The following are several brief examples of the extrinsic information contained in the WSFA Courtroom Chronicles and available to anyone accessing the Internet:
a. Courtroom Chronicles dated May 9, 2006: "The judge's ruling. ‘There is sufficient evidence by the preponderance of the evidence that Eric Hanson participated in the conspiracy to raise the first $250,000 through Mr. McGahan and UBS for the benefit of Richard Scrushy.'" (EXHIBIT 22-A at 239.)
b. Courtroom Chronicles dated May 16, 2006, which include discussions with the Court out of the presence of the jury concerning Government complaints about the "cacophony of objections" by Defendant Scrushy's lead lawyer. (EXHIBIT 22-A at 166.) See also comment by author of Courtroom Chronicles dated May 3, 2006, to effect that folks have "had enough of [counsel's] objections." EXHIBIT 22-A at 304.)
c. Courtroom Chronicles dated May 9, 2006, where evidence of HealthSouth fraud in Birmingham trial is discussed. (EXHIBIT 22-A at 240, 245-246.) This Court granted a pretrial motion in limine excluding evidence of the HealthSouth fraud trial in Birmingham. (Doc. 325.)
d. Courtroom Chronicles dated June 13, 2006: This portion of the Courtroom Chronicles contains an extensive discussion of the decision to drop Richard Scrushy from Count 3 of the indictment and Governor Siegelman from Count 4 of the Indictment. (EXHIBIT 22-B at 46.)
11. Defendant respectfully submits that these documents should be made a part of the record in support of his motion so that this Court and any reviewing Court will have access to the information that was available via the Internet on the WSFA Website during the period in which Juror 30 and 38 testified that Jurors 7 and 40 stated that this information was available and/or read.
WHEREFORE, Defendant respectfully prays that this Court grant leave to file this second motion to supplement and that this Court enter an Order authorizing supplementation of the record in Defendant's motion for new trial with Defendant's EXHIBIT 22, and for such other and further relief as this Court may deem just and proper.