Prosecutors Say Scrushy/Siegelman Should Not Get New Trial: Scrushy Attorney Says the Constitution Matters

MONTGOMERY, Ala., Dec. 2, 2006 -- Judge Mark Fuller received some more light reading from government attorneys Friday as they responded to his 5 p.m. deadline to provide a final brief, limited for them to 15 pages by the judge, related to the exposure of jurors to extrinsic information during the corruption trial of former Governor Don Siegelman and businessman Richard Scrushy.

In the order dated Nov. 20, 2006, Judge Fuller says:

"Having heard testimony from all twelve jurors who deliberated to a verdict in this case, the Court finds that there is credible evidence which establishes that during deliberations some of the jurors were exposed to the following extrinsic or extraneous evidence: (1) a copy of the Second Superceding Indictment obtained from the website of the United States District Court for the Middle District of Alabama and (2) juror information from the website of the United States District Court for the Middle District of Alabama concerning the foreperson's obligation to preside over the jury's deliberations and to give every juror a fair opportunity to express his or her views.

The government predominantly stuck to the issues raised by the judge's order and his direction that "the Government shall file its final brief on the issue of juror exposure to extrinsic or extraneous information as outlined in this Order."  In their filing prosecutors said the extrinsic information jurors were exposed to was "harmless."

"The exposure of some jurors to a very limited amount of extrinsic information from the Court's website was harmless to Defendants. That is, no reasonable possibility of prejudice to Defendants arose from the exposure of some jurors to a copy of the unredacted second superseding indictment (the "indictment") and information concerning the foreperson's obligations to preside over the jury's deliberations (the "foreperson information"). Accordingly, Defendants remain entitled to no relief under Federal Rule of Criminal Procedure 33 or otherwise."

Prosecutors cite the United States v. De La Vega, 913 F.2d 861, 870 (11th Cir. 1990) (citations and quotations omitted), "while due process of law mandates that a fair trial be provided to the [defendant], there is no constitutional right to a perfect trial."

The bulk of the government argument centers on the downloading of a copy of the indictment against the defendants by two members of the jury, who admitted doing so in testimony during a hearing on Nov. 17, 2006.  The government also reiterates previous statements that it does not view the indictment as "extrinsic information."

"The totality of the circumstances reveals that the exposure of some jurors to the indictment from the Court's website was harmless to Defendants. The only change to the indictment relevant to the present issue is a deletion of four words ("defendant RICHARD SCRUSHY and") in Count 3 and five words ("defendant DON EUGENE SIEGELMAN and") in Count 4.   On their face, the purpose and only possible effect of these two redactions was to confine the potential liability of each defendant to one of the two counts at issue, in accord with the verdict form returned by the unanimous jury."

The team of attorneys led by acting U.S. Attorney Louis Franklin says this was not the first time jurors were exposed to the unredacted indictment.  "The Court did not finally order the redaction until the end of the trial, and all of the jurors were continuously and properly exposed to the unredacted indictment from the inception of their jury service until closing arguments."

The government says each side referred to the charges included in Counts 3 and 4 throughout the trial proceedings.

"In fact, all exposure to the indictment prior to closing arguments was to the unredacted indictment, which simply charged Defendants jointly in Counts 3 and 4. No reasonable juror would be affected, let alone prejudiced, in his deliberations by another exposure to the unredacted indictment, which had already been explained and referenced numerous times by the Court and parties."

The government says the jury was properly instructed according to the Eleventh Circuit's pattern jury instructions that "the indictment was not evidence against any Defendant" and further, "after closing arguments, the Court properly instructed the jurors that Count 3 charged only Defendant Siegelman and Count 4 charged only Defendant Scrushy. Moreover, the Court's verdict form made clear that Count 3 charged only Defendant Siegelman and Count 4 charged only Defendant Scrushy, and allowed conviction only upon that understanding by all twelve jurors."

Prosecutors argue the jurors understood the indictment and distinguished clearly between the two defendants.  "They asked only whether a contribution to the AEF or AELF was a thing of value to Defendant Siegelman, and made no mention of Defendant Scrushy."

"Where the trial court has properly instructed the jury on the purpose and contents of the indictment, as the Court did here, appellate courts have routinely held that submission of an unredacted indictment to the jury is harmless beyond a reasonable doubt, despite exposing the jurors to extrinsic information... "

The filing says the unredacted indictment "did not reveal any facts not presented to the jury during the trial and properly charged in the redacted indictment and in Counts 5 through 9, which also detailed Defendants' conspiracy and scheme for Defendant Siegelman to sell Defendant Scrushy a seat on the CON Board. See United States v. Gomes, 177 F.3d 76, 82 (1st Cir. 1999) (affirming denial of the defendant's new trial motion based on jury's exposure to prior indictment containing charges on which he had previously been acquitted); United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988) (finding jury's exposure to dictionary was harmless because the jurors were not exposed to facts not developed during trial)."

Attorneys argue that only one juror, Juror 7 brought the copy of the indictment into the jury room and got the document by "only by accessing the Court's website, and not from a media outlet or outside source. The absence of contacts with potentially interested third parties also supports a finding of harmlessness."

The lawyers go on to argue that

  • "only a limited number of jurors were re-exposed to the indictment. Only Juror 66 knew that Juror 7 had obtained the indictment from the Internet, and only Jurors 7, 66, 63, 29, and 5 knew that Juror 40 had done so. "

  • "According to the jurors, neither Juror 7 nor 40 showed the indictment from the Court's website to another juror. Juror 7 testified that he read the indictment, Tr. Evid. Hearing, Nov. 17, 2006, at 120, but Juror 40 stated that she only had skimmed it once. Tr. at 83. See De La Vega, 913 F.2d at 871 (noting that only one juror having read the extrinsic material favored a finding of harmlessness).

  • "the amount of the jurors' consideration of the indictment was minuscule. Juror 40 did not bring the indictment into the jury room, Tr. at 83, while Juror 7 brought his copy of the indictment into the jury room only for the first two or three days of deliberations. Tr. at 122-23. "

  • "The jurors discussed Juror 40's downloading of the indictment (as opposed to any of its content) for, at most, fifteen or twenty minutes toward the beginning of their nine days of deliberations. Tr. at 61."

  • "In addition, the jurors were exposed to the indictment at the beginning of their deliberations, several days before they reached a verdict. The passage of several days between the jurors' reexposure to the indictment and the return of the verdict attenuates any effect the exposure would have had on a hypothetical juror. This attenuation again favors a finding of harmlessness to Defendants.

The arguments put forth in the brief  claim both jurors had a good motive for their action of downloading the indictment.

"It is uncontested that both Jurors 7 and 40 downloaded the indictment only to aid their service as jurors and specifically because they wanted an opportunity to consider the complex, lengthy charges in depth. Defendants are unlikely to suffer prejudice from a juror's actions from a neutral motive to be diligent, thorough, and organized, as opposed to any nefarious motive. See United States v. Bassler, 651 F.2d 600, 603 (8th Cir. 1981) (finding no prejudice from juror considering extraneous information to aid deliberations)."

As to notes allegedly taken by Juror 40 and written on her copy of the indictment the filing says, "no harm arose from Juror 40's memorializing her thoughts on the indictment.  Juror 40's notes represented her private thoughts and "cannot be considered an 'extraneous' or 'extrinsic' influence" even if made outside, and then brought into, the jury room..."

The argument is put forth that jurors "are to be expected to think about the case outside the jury room and to have thoughts that they should be able to share with their fellow jurors when deliberations resume."

Attorneys also say that Juror 7's notes are "particularly innocuous given that he used them only during the first two or three days of deliberations, and solely to organize the jury's discussions and ensure that the charges against Defendants were discussed in a fair and impartial manner."

One of the greatest arguments against prejudice from the extrinsic evidence entering into the process argue prosecutors is "the evidence against Defendants at trial was overwhelming. The greater the amount of evidence of a defendant's guilt, the less likely the defendant was prejudiced from the jury's exposure to any extraneous material. Klein, 93 F.3d at 705 ("the most common means of demonstrating the harmlessness of an extraneous contact is to show the existence of overwhelming evidence of the defendant's guilt") (citations and quotations omitted). "

For this argument Mr. Franklin's team says, "This Court has already recognized that the government presented "substantial evidence" of Defendants' guilt during the trial. Order, Doc. # 468 at 7 (Oct. 2, 2006). Such substantial evidence shows there was no reasonable possibility of prejudice from jurors' consideration of extrinsic evidence. United States v. Pessefall, 27 F.3d 511, 516 (11th Cir. 1994) ("substantial properly admitted evidence" of the defendant's guilt supported a finding of no reasonable possibility of prejudice from jurors' consideration of extrinsic evidence)."

Next, the government argues the split verdict "returned by the jury further shows that no harm arose from the jurors' reexposure to the indictment. The jury convicted and acquitted Defendant Siegelman on seven and twenty-six counts, respectively; convicted Defendant Scrushy on all six counts against him; and acquitted the other two Defendants on all charges against them. The jury thus demonstrated that it individually and conscientiously considered the evidence against each Defendant on each count, and based its verdict solely on the evidence and law applicable to each Defendant. Many courts have held that the return of a split verdict indicates that the jury was not prejudiced by any outside information. .."

Government lawyers make particular reference to Richard Scrushy in this matter:

"Defendant Scrushy's argument that the jury's verdict was not fractured as to him misconstrues the jury's work. Though Defendant Scrushy was convicted on all counts against him, the jury certainly weighed the evidence against each Defendant individually, as shown by its conviction of Defendant Siegelman on all counts involving his conspiracy with Defendant Scrushy regarding the CON Board, but only on one other count in the indictment. Defendant Scrushy, therefore, cannot complain that the extrinsic information was more harmful to him than Defendant Siegelman (or any other Defendant) solely because he was convicted on all counts charged against him."

The government argues juries are presumed to follow the instructions given to them by the Court that they are "to decide the case solely on the evidence admitted during the trial. The jury is presumed to follow this instruction, United States v. Lloyd, 269 F.3d 228, 241 (3d Cir. 2001), and the jurors' testimony at the Court's hearing as well as the split verdict shows that they did so. Cf. Smith, 455 U.S. at 217 n.7 ("surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter"). The re-exposure of some jurors to the extrinsic information in no way shows that the jury disregarded this instruction from the Court as the indictment (and foreperson information) did not contain any facts not admitted during the trial."

The filing says the fact the jury was asking questions during deliberations are an indication the jury was "taking its duties seriously."

The government claims the jurors accessed the information from the "Court's website only after the Court had given each juror the URL to the Court's website for other purposes, and not as a result of wholly uninvited or otherwise obviously prohibited access to the material."

This fact is openly disputed by attorneys for Governor Siegelman in their brief where they counter that argument with Juror 7's interview with a newspaper in which he claims to have Googled to find out information pertaining to the duties of a foreman.

Concerning information downloaded related to the duties of the foreperson, the filing says there is no prejudice to the defendants; "rather, it could only make the jury's deliberations more conscientious and fair. Juror 7 testified that he reviewed the foreperson information solely to ensure that he properly perform his duties as foreman. Tr. at 120."

"Courts have held that similar actions by jurors in other cases were not prejudicial. For example, in De La Vega, 913 F.2d 861, the jury foreman, after the first day of deliberations, went to the library and checked out a book titled What You Need to Know for Jury Duty. Id. at 869. The foreman read the book, implementing its suggestions on how to organize the jurors on the next day. Id. A few days later, the foreman brought the book into the jury room and showed "some jurors a page in the book which outlined the organizational steps which he was following." Id. The book remained in the jury room for the foreman's reference, though no other juror read it. Id. at 869-70.

Regarding Juror 7's reading information as to the duties of a foreperson, the government argues:

  • "He used the information solely to organize the deliberations, which occurred after a two-month trial involving complex issues."
  • "The exposure of other jurors to this information was very limited, as only Juror 7 read the information, see id. at 871(stressing that no other juror read the library book),"
  • "and only Jurors 22, 38, 66, 29, 16, and 68 knew that Juror 7 had read this information. "
  • "Juror 7 did not bring the foreperson information into the jury room. Tr. at 127. Juror 7 accessed this information after the first day of deliberations, Tr. at 119-20,"
  • "and the jurors' discussion of Juror 7's reading of this information lasted, at the most, for only ten minutes out of nine days of deliberations. Tr. at 56."
  • "The foreperson information was strictly "procedural," see De La Vega, 913 F.3d at 870, and "could only have been used to ‘aid the jury in being conscientious and serious in attempting to deliberate in a fair and impartial manner.'" Id. (quoting Bassler, 651 F.2d at 603). "
  • "The foreperson information was closely akin, if not identical, to the Court's own instruction to the foreperson about his duties. Tr. at 121."

The government cites further that the some jurors were "Defendants were not harmed from some jurors' exposure to the foreperson information - "

  • "the evidence against Defendants was overwhelming;"
  • "the jury returned a split verdict;"
  • "the foreperson information contained no facts about the case; "
  • "the Court instructed the jury to decide the case solely on the evidence admitted during trial;"
  • "no third-party communication occurred in Juror 7's obtaining the foreperson information;"
  • "several days passed between the jurors' exposure to the foreperson information and the jury's returning a verdict;"
  • "and the jury asked questions of the Court during deliberations."

The government moves on after this to an issue it says attorneys for Richard Scrushy hint at in a recent pleading:

"In a recent pleading, Doc. #504 (Nov. 24, 2006), Defendant Scrushy intimates that he is entitled to a new trial on the grounds of juror incompetence, i.e. the alleged inability of Juror 5 "to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form." 28 U.S.C. § 1865(b)(2). See Doc. #504 at 3. "

The government concludes its brief with the following:

"This Court, properly solicitous of a defendant's constitutional rights, has afforded Defendants extraordinary procedures for their Rule 33 motions. Defendants, unlike the overwhelming majority of defendants convicted in this District, have received over four months to develop the grounds upon which they seek a new trial. In this time, they have at least skirted violation of this Court's rules regarding post-trial contact with jurors (and in their latest petition they have attacked the competency of the very juror who provided affidavits)."

Late Sunday evening Richard Scrushy's senior attorney Art Leach had this to say to concerning the government's arguments:

"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. 

For Scrushy Brief click here

The government's writing for several pages about this issue in a brief that has absolutely nothing to do with that issue is very telling.  The government does not address the Court's failure to gather the evidence that could prove their theory of the case.  We say that if the jurors did not access the Internet, conduct research and download information as many jurors have now sworn they did - then why not get that evidence?

The government is usually all about evidence - they have the power of the grand jury to gather it - yet they make no effort.  They have the Court poised to conduct a thorough investigation - yet they advise the Court that no such investigation is necessary.  Finally, they have thousands of FBI agents and resources far beyond what any citizen might have to investigate whether the jurors did anything like that alleged by their fellow jurors - yet the FBI remains mute and takes no action.

I had talked to assistant U.S. Attorney Steve Feaga late Saturday 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