MONTGOMERY, Ala., Dec. 1, 2006 -- In compliance with Judge Mark Fuller's order to file final briefs regarding the exposure of jurors to extrinsic information during their service as jurors in the corruption trial involving former Governor Don Siegelman and businessman Richard Scrushy by 5 p.m. today, attorneys for the former governor say the conduct in particular of jurors 7 and 40 warrant a new trial for their client.
Attorneys challenge juror 7's testimony during a Nov. 17, 2006 hearing where he claimed to have only accessed the Web site of the Middle District of Alabama to download a copy of the indictment and a description of how a foreperson should do his job.
Attorneys for Siegelman allege that depending on what search terms the juror entered into the Google search box: "it is statistically impossible that Juror 7's Google search led him to, and only to, the Middle District's website."
The filing says that the foreman's testimony is contradicted by other testimony from the Nov. 17, 2006 hearing and cite in particular testimony of Juror 66, whose full testimony you can read by clicking here.
"She is clear that Juror 7 conducted multiple Internet searches, obtained "detailed information," and interjected what he had found into jury deliberations:"
"Juror 7 claims that he does not believe the information he researched on the Internet differs substantially from the Court's jury charges. However, his co-jurors are clear that Juror 7 brought "other information" into jury deliberations that this Court did not allow into evidence. Juror 7 guided deliberations on every charge using this extraneous information:
Q: And you say that he had other information that you believe that he got from the Internet -
Q: - about the indictment?
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Attorneys go on to cite testimony from Juror 38 (Click here for complete testimony) and what may have been discussion of WSFA's trial blog of the proceedings, the Courtroom Chronicles - which are now part of the court record.
Attorney David McDonald says in the brief that Juror 7 gave an interview with an Auburn paper in which he demonstrated "a working knowledge of legal terms that this Court never defined." McDonald also says other testimony from the Nov. 17, 2006 hearing indicated the juror had researched another defendant who was found not guilty in the case. McDonald says seven jurors indicated that Juror 7 had "conducted research on the Internet." Juror 7 in his hearing testimony says he only read the information from the Middle District's Web site. But McDonald is not only upset with Juror 7's alleged actions.
As to the issue that the government is burdened to prove that the information accessed by jurors was not prejudicial to the defendants, McDonald argues:
Siegelman's attorney next turns his attention to the testimony of Juror 40 and says her testimony (all of which may be accessed here) is also contradicted by her prior statements to the media.
McDonald says articles in the Montgomery Advertiser around the time Juror 40 was admittedly looking at an article on the accreditation of Faulkner's law school "quote the acting U.S. Attorney making numerous pejorative statements about the Defendants which most certainly would have prejudiced even the least impressionable juror." Those articles are also now part of the record of the case. Judge Mark Fuller granted the request by attorneys for Richard Scrushy to supplement the record in the case and the Siegelman attorneys joined in the motion to supplement the record.
McDonald goes on to talk of other jurors contradicting Juror 40's testimony and then talks about alleged e-mail traffic between Juror 40 and Juror 7. Judge Mark Fuller has steered clear of most discussion about the alleged electronic communications between jurors and made clear during the Nov. 17, 2006 hearing he did not want to go down that path, at least at that time. The alleged e-mails sent to attorneys have not been authenticated nor has the judge, as far as is known, subpoenaed records that would confirm or deny the authenticity of the alleged communications.
Both Juror 40 and Juror 7 admit to downloading a copy of the indictment and McDonald claims the downloaded indictment "differed substantially from the indictments the Court gave to the jury" because one count against Siegelman and one count against Scrushy was dismissed.
Siegelman and Mr. Scrushy.
The Court required the Government to elect which claims to pursue against Messrs. Siegelman and Scrushy. Accordingly, the Government dismissed one Count each against Siegelman and Scrushy, and the Court submitted a revised Indictment to the jury. However, Jurors 7 and 40 used their copy of the wrong Indictment (as well as other information obtained from the Internet) to guide jury deliberations
the jury indicated that it was deadlocked. [T-54-55, 59]
Mr. McDonald finishes his arguments as follows: