Scrushy Brief Focuses on Possible Future 11th Circuit Appeal: Calls Judge's Inquiry 'Insufficient'

MONTGOMERY, Ala., Dec. 2, 2006 -- 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."

"When it is clear that a serious irregularity has occurred with a jury, while a district court is granted broad discretion in how to conduct the inquiry, the Supreme Court has held that "the entire picture should be explored." Remmer v. United States, 350 U.S. 377, 379 (1956). "Whenever something occurs at a trial that may tend to affect the impartiality of the jury, both sides have a vital interest in learning everything there is to know about the matter." United States v. Moten, 582 F.2d 654, 660 (2d Cir. 1978).

The defense comment regarding an alleged abuse of discretion by the Court is significant to any future appeal to the 11th Circuit, and the burden of proof at that level is heavy.  Former Magistrate Judge John L. Carroll, Dean of the Cumberland School of Law at Samford University told recently:

"...the law invests a tremendous power in the district court and it's an abuse of discretion standard.  In other words, they would have to show Judge Fuller abused his discretion in ruling on these motions, which is an incredibly difficult standard to meet.  I mean you see opinions all the time saying, we disagree with the way the trial judge decided this case but he did not abuse his discretion and we affirm, so he's got tremendous discretion and the review of his discretion is very limited."

The filing pays very little attention to the whole issue of the downloaded indictment and jury foreperson instructions which Judge Fuller said in his Nov. 20, 2006 order was "extrinsic or extraneous evidence" the jury was exposed to.

Attorney Art Leach and his team talk about six issues regarding the way the Nov. 17, 2006 hearing into exposure to extrinsic information was conducted:

  • "First, the Court foreclosed any meaningful input from the parties as to the scope and content of the twelve questions the Court put to the jurors. For instance, when Defendant objected to the Court's leading questions and requested more open-ended inquiry of the jurors, the Court stated: "Thank you for that request. Juror Number 29 will be next." (T-98.) The Court did not alter the pattern of its questioning. (T-101-106.)"

    [Note (Not part of brief, interjected at this point by
    The Court acknowledged according to the transcript of the hearing that this might put the defense at "a slight disadvantage" but Judge Fuller explained his reasoning this way when Mr. Leach inquired about follow up to juror's answers at the beginning of the hearing:  "That's correct.  That's the purpose of what I am asking you to state for the record now.  And I know that it puts you at a slight disadvantage, but the Court has extraordinary discretion as I understand it to conduct these hearings, and I don't want to make this any more a laborious process for these individuals than absolutely necessary.  If I think that it would require the opportunity, out of an abundance of precaution, the fairness of the Defendants and the United States, I may suspend that limitation."]

  • "Second, while the Court's questions were carefully constructed from a legal standpoint, the questions (including the use of the key legal terminology of "extraneous information" which was defined in a group, rather than individual setting) were not designed to help the jurors to recall all the information they may have discussed or heard. The questions were complex and not easily understood by a lay person giving testimony before a large audience of lawyers, media and others, especially as to any juror who may have any sort of limitations as to their literacy or educational background. It was apparent that Juror 5 in particular was struggling with the Court's questions, (see, e.g., T-134), an issue Defendant specifically raised with the Court, but the Court took no action on. (T-154, 160)."

  • "Third, on three occasions, the Court interrupted jurors in mid-sentence when the juror was describing the nature of the extraneous information. (T-52 line 15; T-59 line 15; T-74 line 8.) On each occasion, the interruption did not result in a clarification of the testimony, but a curtailment of the information being revealed."

  • "Fourth, the Court failed to explore issues where there was a clear contradiction in previous statements by the juror or between the testimony of a juror and other jurors, where such exploration was necessary to understand the scope of the extrinsic information. Juror 40 testified she accessed a news article on the Internet, but claimed to only read the headline. (T-77.) In a taped interview on July 19, 2006 Juror 40 stated, "I did see one Internet article ... It was -- after I saw the headline, I was oh, I wonder what that says." (EXHIBIT 5-B at 24.) Juror 66 testified that Juror 40 talked about what she read. (T-59-60.)

    Juror 40 testified she was unaware of any extrinsic information on penalty, (T-79), but EXHIBIT 12 is an apparent e-mail to Juror 40 which mentioned the penalty, and EXHIBIT 13 is her almost immediate response to that e-mail. Yet the Court not only failed to follow up with Juror 40, but failed to determine which juror sent the e-mail to her, while at the same time denying all requests to authenticate the e-mail or subpoena the records.

    Juror 66 testified that Juror 7 researched information on the acquitted Defendants and the jury talked about that information for 10-15 minutes on each Defendant, (T-52, T-58), but the Court never followed up with any juror. Juror 5 previously signed an affidavit, (Defendant's EXHIBIT 8), relied on by this Court, (Doc. 492 at 8), which indicated the jury talked about the fact that Governor Siegelman put the HealthSouth money in his personal account and the fact that the Defendants would not go to jail, yet this Court failed to ask Juror 5 about those allegations. "

  • "Fifth, the Court failed to allow any exploration or even understanding of what was in the "foreman's book" that a number of jurors testified they requested and the Court furnished to them. The Court did not fully answer Defendant's request for clarification of when, how hearing what it stated was all contact with the jury. (Transcript of Proceedings, October 31, 2006 at 12-17.) and what the jurors were provided, (T-162-163), despite the reference to this highly material information by three jurors. See testimony of Juror 38 (T-39); Juror 66 (T-57); and Juror 5 (T-134). This information is essential to understand the scope and timing of the Internet research conducted by Jurors 7 and 40, which this Court precluded."

  • Sixth, the Court failed to obtain or authorize subpoenas for evidence of the Internet searches by Jurors 7 and 40, despite the fact that other jurors' testimony indicated that the Internet research was either broader in scope than Jurors 7 and 40 admitted, or that it occurred at a different time than Jurors 7 and 40 claimed. See testimony of Juror 38 (T-38-39); Juror 66 (T-52, 54-55, 57-58); Juror 30 (T-71-72, 73); and Juror 5 (T-134-136).

    While this Court had discretion in how to conduct the inquiry, this Court did not have discretion to conduct an inquiry in such a fashion so as to leave more questions than answers. Defendant has a right to have this Court conduct an inquiry that complied with the Supreme Court's requirement in Remmer to explore "the entire picture," 350 U.S. at 379, and this Court's failure to conduct a sufficiently thorough inquiry was contrary to Supreme Court authority and therefore an abuse of discretion. See Moten, 582 F.2d at 666-67.

Regarding the whole issue of juror-emails, the transcript of the Nov. 17, 2006 hearing (just released last week) has this from Judge Mark Fuller in response to requests by Siegelman attorney Vince Kilborn to look into the whole e-mail, text messaging issue:

"THE COURT:  I don't want to elaborate too greatly about these e-mails, but unless the e-mails deal with what the Court has defined as extraneous information rather than the areas of deliberation with fewer than 12 of the jurors present or any correspondence between jurors outside of the collective participation of all of the jurors, that would not fall under the definition of what this Court is looking into today."

The brief goes on to allege that the Court's implicit finding that the jurors were only exposed to two items of extrinsic information "is clearly erroneous in light of the testimony of all twelve jurors."

The filing says "there is substantial evidence to the contrary" and reiterates a theme originally set out at the beginning of the brief that "a full inquiry would have revealed the true parameters of that exposure."

The document says the Court's finding is only supported by testimony if the testimony of Juror 7 and Juror 40 is accepted while rejecting and ignoring the testimony of five other jurors.

"Such a finding, especially in light of the Court's failure to explore the clear contradictions in the testimony and other exhibits, would be clearly erroneous. "

Attorneys for Mr. Scrushy then put forth several reasons they believe show exposure to extraneous materials beyond that of the indictment and the duties of the foreperson:

  • "First, testimony of two jurors indicates that Jurors 7 and 40 appear to have accessed the Internet relating to daily coverage of the trial. Juror 38 testified that Juror 7 "said that they had been on the Internet and -- well, it was like one of the TV stations had all the proceedings on the Internet, you could go read it, and that was mentioned.... that they had read what was going on in the court." (T-38.) Juror 30 testified that Juror 40 said "the whole trial was on the Internet daily," and, significantly, this information was shared with Juror 30 "during the whole trial." (T-71-72). Juror 30 also believed that Juror 7 "looked like he had probably read it on the Internet too or saw it on the Internet." (T-73.)"
  • "Second, a number of jurors testified that it appeared that Juror 7 and/or Juror 40 had researched beyond the two items identified by the Court. Juror 66 testified unequivocally that Juror 7 had conducted research on one or both of the acquitted Defendants, (T-52), brought in documents that he read off to the jury, (T-52-53), and that the jury discussed this information about each acquitted Defendant for 10-15 minutes. (T-58.)

    Juror 66 testified repeatedly that Juror 7 conducted research on the Internet about the charges in the indictment and discussed it with the jury, telling this Court that "when we went through each one of them it was always okay, well, but when you look here this says this and it's not in the book that you gave us, it's not in the indictment so -- and he had his paperwork there, so each one of the charges there was information about it." (T-57 (emphasis added); see also T-52, 54- 55.)

    Juror 66 testified that Juror 40 said she had done some independent research into the indictment counts, (T-60), and that Juror 40 spent about 10 or 15 minutes discussing the information she researched over the weekend. (T-61.) Juror 5 testified that Juror 40 said she found the "foreman's book" on the Internet, the same information that was eventually supplied to the whole jury, (T-134-136), that it was not the indictment, (T-134-136), and that another juror had confronted Juror 40 about the amount of her knowledge concerning the trial, and Juror 40 said she went on the Internet to look up the foreman's book. (T-134, 136-137).

    The evidence before this Court shows that Internet information was accessed, yet this Court has refused to obtain records that would confirm precisely what that information was, when it was accessed, and especially the frequency that materials from the Internet were accessed by Jurors 7 and 40.
The Court's focus on what was carried into the jury room completely ignores the fact that accessing material related to the case, reading it and then carrying that knowledge into the jury room during deliberations is a Sixth Amendment violation regardless of what materials were shown to other jurors."
  • "Third, other evidence in the record indicates that despite the jurors' negative answers to any knowledge of extrinsic information about penalties in this case, that a number of jurors were exposed to such information. Juror 5 stated so in both of his affidavits. (Defendant's EXHIBIT 8 at 1; EXHIBIT 9 at 2.) The apparent e-mails in EXHIBITS 12 and 13 indicate that one still unidentified juror e-mailed Juror 40 on June 25, 2006, during deliberations and commented on the penalty, and that Juror 40 responded shortly thereafter. (Id.)"
  • "Fourth, Juror 5's August 9, 2006 affidavit states that Juror 5 had heard from other jurors that "the governor had put the money from HealthSouth in his personal account."  (EXHIBIT 8 at 2.) No such evidence was properly before the jury. "
  • "Fifth, Juror 40's testimony that she did not bring any documents into the jury room, (T-83), was directly contradicted by Juror 63 who testified she saw Juror 40 take papers out of her coat. (T-94.) Juror 40's testimony that she read only the headline of a news article on the Internet, (T-77), was contradicted by Juror 66, (T-59-60), and by Juror 40's statement in a taped TV interview. (EXHIBIT 5-B at 24.)

    Even Juror 7's denial of researching only two items was hardly ringing: "Court: ‘Those are the only two things you recall?' Juror 7: ‘As far as I can recall today.'" (T-123.) Both Jurors 40 and 7, the only two jurors to admit to deliberately violating the Court's instructions, had substantial motivation to color or minimize their actions, while other jurors who contradict them in material matters have no apparent motive to be unforthcoming."

In the face of the substantial contrary evidence, any finding that the extraneous information was limited to the two items identified by the Court would be based on crediting the least reliable testimony of the two jurors who stand the most to lose because or their admitted violations of this Court's Orders, and discrediting and ignoring the testimony of five other jurors. Any such finding would be without support in the record and clearly erroneous. "

In the final set of arguments attorneys for Mr. Scrushy say the government "cannot meet its heavy burden to establish that the jury's exposure to extrinsic evidence was harmless."

"The manner in which the information reached the jury weighs against a finding of harmlessness in this case. Unlike cases where the exposure occurred due to an inadvertent event, all of the exposure in this case came as a direct result of the deliberate violation of this Court's Orders by Juror 7 and Juror 40 when they accessed the Internet to obtain information about this case. Thereafter, these two jurors admittedly used this information in discussions with jurors during deliberations, and, according to the testimony of Juror 66, Juror 7 used this information in order to "break it down so we could understand each one of the charges, and this is what -- in order to find them guilty this is what has to be done." (T-54.) See also Defendant's EXHIBITS 1 and 3. This extraneous information was not only obtained through a deliberate violation of the Court's instructions, it was misused in order to convince jurors to convict Defendants Scrushy and Siegelman. "

Questions concerning the timing of when the extrinsic information reached the jury, especially during a time when the jury may have been deadlocked is also a factor argue the attorneys as is the "unauthorized access to and use of copies of the unredacted Indictment... The possibility of prejudice from these jurors' unauthorized access to the Indictment copies is illustrated by the simple fact that had any juror requested permission from this Court to take home a copy of the indictment to "research" outside of deliberations, this Court surely would have summarily denied such a request. "

Attorneys argue that the "nature of the other extrinsic evidence that the jury was exposed to undeniably "poses a reasonable possibility of prejudice." Perkins, 738 F.2d at 1533. The article that Juror 40 most likely accessed contains highly prejudicial extraneous information. See EXHIBIT 21-C, Defendant's motion to supplement record. (Doc. 509.) "

And the coverage of the trial on the Internet also is again raised in this brief.

"The daily coverage of the trial on the Internet, which two jurors testified that Juror 7 and/or Juror 40 accessed, contains substantial information which was not admitted in Court and which is unquestionably highly prejudicial to Defendant. See EXHIBIT 22, Defendant's second motion to supplement record. (Doc. 510.) "

The Motion to Supplement the Record is composed of exhibits of the complete group of postings on WSFA's Web site during the trial known as the Courtroom Chronicles.

Furthermore the argument in the brief says regarding information which may have been gathered and discussed concerning other defendants harm was done to the remaining defendants.

"The information which Juror 7 downloaded and discussed with the jury relating to the acquitted Defendants, (T-52, 58), presumptively harmed Defendant, as it resulted in the acquittal of two co-Defendants by the same jury that convicted Defendant. "

And information on specific charges allegedly accessed by Juror 7 influenced the process says the filing:

"The information on the specific charges which Juror 7 downloaded from the Internet and which Juror 66 testified was not contained in the "book" the Court provided or in the Indictment and was used to guide the deliberations which resulted in Defendant's conviction, (T-57), was clearly prejudicial. In light of this evidence, the Government cannot possibly meet its heavy burden of rebutting the presumption of prejudice. "

The brief says the government cannot meet its burden to prove there was no prejudice to the defendants:

"Finally, the Government cannot show that its case against Defendant was so strong that the jury exposure was harmless for the simple reason that this jury obviously had great difficulty reaching a unanimous verdict, as demonstrated by the length of deliberations and the jury's two announcements that they were hopelessly deadlocked. (Tr. Vol. XXXV at 24; Tr. Vol. XXXVIII at 3.) Bulger v. McClay, 575 F.2d 407, 411 (2d Cir. 1978) (holding that jury's difficulty in reaching a verdict supported a finding of prejudice from jury's discussion of extraneous evidence.)

Late Sunday evening, Mr. Leach had the following to say to concerning arguments made by the government in their brief especially related to the specific issue of juror 5 and and the efforts to gain a new trial for Mr. Scrushy:

"The government stated in their response last Friday that Richard Scrushy has moved to have the Court find that Juror 5 is "incompetent" (page 13*) and as a result this provides a basis for a new trial.  First, the only thing we did on behalf of Mr. Scrushy was to request certain documents so we can evaluate whether Juror 5 ever made any representations regarding his abilities.  The Court denied that motion and we have said nothing further about it yet.

I had talked to assistant U.S. Attorney Steve Feaga late Saturday afternoon and he told me the government responded to the Scrushy request for documents concerning Juror 5 in the government's brief because, "We did not want to let it sit.  We want the Court to enter its final ruling and proceed to sentencing.  Rather than risk getting another delay we went ahead and responded."

Mr. Feaga also reiterated "it was established beyond a shadow of a doubt during the hearing that they're not entitled to any relief.  We're confident we'll get a favorable ruling from the court."

Reported by:  Helen Hammons