Comments by Scrushy Attorney Art Leach towards End of Nov. 17, 2006 Hearing; Atty David McDonald for Siegelman

MR. LEACH:  Yes, Sir.  Judge, our number one objection is that we believe that there is a world of either corroboration or impeachment out there which the Court has denied via our sealed motion which we have submitted to the Court and our prior motions to the Court to gather that information.

Our objective here is to ascertain what extrinsic evidence is out there and presented to the jury.  We suggest that by getting the ISP providers and other sources that we outlined in our motion and in our prior public filings the Court would know what information was out there and downloaded and could ask - you could then question the jurors whether that information was something that was - that the rest of the jury was exposed to.  So we object, procedurally, to the fact that the Court did not conduct that investigation prior to questioning the jurors here.

Judge, with regard to Juror Number Five we would ask that you bring him back and ask him questions because I think today he was struggling to understand the Court's questions.  I think the Court I am sure can remember his prior testimony, and I think that both in the public portion of his prior testimony and in the portion of the testimony that was taken in chambers, I think the Court endeavored to make it where Juror Five understood exactly what the Court was looking for.

I think he was struggling here today and I would ask that you bring him back and ask him to - walk him through his affidavit as you have in the past.  Judge.  And you asked him on prior occasions both publicly and in chambers whether his affidavit was accurate and he has told you in the past that it was, and I just - I wonder, Judge, if the issue here isn't more related to an understanding of where the Court was going and what the Court's meaning was.

Judge, we ask that each of the jurors be asked in chambers what e-mail addresses they used during the trial of the case, and what computers they utilized during the course of the case.  As the Court knows through the sealed portions of our filings there are e-mail addresses that remain unascertained right now.

I know Your Honor was pointing towards the e-mails that have to do with the penalty being too severe.  We - I believe I know one side of the communication, I do not know the other side of that communication which juror was involved in that.  I think whoever that juror is, once it is ascertained, that juror ought to be asked directly about that e-mail communication.

And I do understand, Judge, that you did not want to broadly get into the e-mails, but that particular e-mail is something that you did take up today and I just think whoever that juror is is someone who should be asked about what was going on in that line of e-mails.

THE COURT:  If it's a juror. If it even is a juror.  It could be a person that was not on the jury.

MR. LEACH:  You know, I just don't know, and until we ask those questions of the jurors, you know, in terms of what e-mail addresses they were using.  I think, if I remember that line of e-mails correctly.  Judge, I think there's more references down the line that indicate that it would have been another juror.  But maybe I am wrong about that.  There's a lot of material that we have submitted to you.

Judge, specifically I believe Juror 40, if I am not mistaken, is one side of that e-mail communication, and the Court did not directly confront that juror about that e-mail.  In other words, is it authentic?  Is it not authentic? If it is authentic, what was going on there?  What was the nature of that communication?  Who were you communicating with?  I would ask that you bring that juror back and have that line of questioning with the juror.

Judge, this morning I believe, and my count may be wrong, but I believe four out of six jurors confirmed that they knew that Internet searches were discussed before the jury.  I may be wrong in that number but I think it was four out of six.  Based upon that showing alone I think because the jurors are indicating that those Internet searches are consistently with I believe two jurors in this case, the Court should at a minimum subpoena the ISP providers and try to get the search trails during the course of the case in order to determine what was searched, what was downloaded, and what the potential universe is of information that could have been presented to the jury.

I suggest respectfully, Your Honor, that the Court can not fully evaluate what information the jury was exposed to without knowing what information was out there that could have been presented to them by the only two jurors that appears that were doing these kind of searches.

Judge, I also suggest that the overall questioning from the Court in one respect misses the focus of what we are doing here.  And I suggest respectfully, Judge, that it's not just about what extraneous information two jurors may have received and downloaded and carried into the jury room.

I think another part of what you have to look at, Judge, is what extraneous information did those jurors pull down and assimilate and then carry in, whether there was paper or not.  And that's why I think it's important to know the ISP providers or through the other methods that we outlined in our motion that you know what information was out there, downloaded, how frequently was it downloaded, and then you can ask the jurors did that information ever come into the discussions, did that affect your deliberative process.

THE COURT:  I don't think I can even ask the question that affected their deliberative process, can I?

MR. LEACH:  If it's extraneous, Judge.

THE COURT:  I can ask what extraneous information they had available to them, how long they considered it, and then I have to make an objective determination of whether or not in this Court's opinion it could have affected a reasonable juror.  I am prohibited specifically by the 11th Circuit from even asking the direct question did it have any impact on your deliberations.  Would you disagree with that?

MR. LEACH:  I don't disagree with that, but the point that I am trying to make, Judge, is volume is important.  And one of the things that is discussed by I think it's Juror 66 for sure, and perhaps others, is that there was talk about the fact that the case was being reported on a daily basis.

And one of the things that I think you would find by going through the ISP providers or the other methods that we discussed in our motion is you would see if that kind of volume, in other words that kind of daily contact with extraneous information was occurring.  And if it was, you could then make further inquiry as to what effect it might have had on the deliberative process.

Judge, Juror 66 testified that Juror Seven pulled materials out of his pocket.  And to determine prejudice we have to learn as a threshold matter what each juror saw on the Internet, how much material was downloaded, what material was in the pocket, and what material was presented to the Court.

I can see by the nature of the Court's questioning that your conclusion is directed towards the indictment, but without knowing what the universe of downloaded material is, we will never know whether the indictment is the correct answer or if there were other materials made available to Juror Seven or Juror 40.

Judge, we would respectfully ask that you ask the jurors whether there had been any contact with them leading up to their testimony in this proceeding.  And I don't mean to indicate that there was anything inappropriate there.  I just - you know, jurors, they know each other, they are friends with each other and I just think there ought to be a questioning about whether they have had contact with each other leading up to this proceeding.

I believe there is a conflict which needs to be clarified with regard to Juror 66, Judge.  If I am not mistaken Juror 66 testified that Juror 40 conducted research on the Internet and that she had notes on a copy of the indictment in the jury room.

I am not sure the Court ever ascertained - and Judge, we haven't seen your exhibit so, you know, you may have this answered right there in front of you - but I don't know that it's ever been ascertained whether the notes are present here.  And what the note - the contents of those notes were and whether they were made available to the other jurors, and whether that included information that was extraneous to the case or not.

I believe I mentioned earlier, Judge, about the daily reporting.  The other juror I think who talked about that was Juror 30, testified that Juror Seven accessed the Internet and told Juror 30 that there was daily reporting of the case.  Again, I would suggest to Your Honor that this supports that a reasonable investigation into the Internet activity of Juror Seven and Juror 40 is called for in order to ascertain the universe of Internet contacts with extraneous information during the case.

Judge, Juror 66 testified that Juror Seven looked up information on the Internet relating to a Defendant that was acquitted. And if I recall this testimony correctly, it had to do with the personal employment history of that person, which would lead me to believe that it probably would be talking about Mack Roberts.

The Court did not make inquiry as to that kind of information, but my main point in bringing this issue up is this again shows the problem with defining the universe of  information that was pulled off of the Internet which could be available to the Court through the ISP providers or through the other methods that I suggested in the sealed motion which we gave to the Court.  And I might point out to the Court that we supplied an affidavit of an expert in conjunction with that to explain how that information could be harvested by the Court.  If I could just have a moment, Your Honor.


MR. LEACH:  Judge, we have two jurors that went to the same source in order to get the indictment.  I think it is a logical question as to whether or not one juror told the other juror, that is Seven told 40 or 40 told Seven about where they could find the indictment so that they could have a copy outside of the deliberation room.  Because I am sure that it was the procedure in this Court that that indictment that went to the jury room stayed in the jury room and the jurors did not get to take that indictment home.

Judge, tying into David McDonald's question with regard to the jurors and contact with the Court's Web site.  We suggest that the Court should inquire with Juror Seven and Juror 40 whether either one of them at any point opened a PACER account.  And I believe it is correct, Your Honor, that anybody can open a PACER account and to have access to the Court's Web site and can download any information that's available once they have a PACER account.

THE COURT:  Well, they have to open - the PACER account would not be accessible from this Court, it's actually accessible through I think San Antonio, that's where the documents are maintained.

MR. LEACH:  And Your Honor, I believe the search histories that we have pointed out both in our expert's affidavit and in our sealed request would show all that information through the ISP provider or the other methods that we outlined for you.

Judge, we suggest that all jurors should have been asked whether they ever discussed via e-mail or text messages any extraneous information.  In other words, was there any communication regarding extraneous information outside of the deliberative process here in this courthouse.

THE COURT: And you don't think that was covered in the Court's question number ten?  And I will read it for the record.  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 had been exposed to extraneous information about this case from any source?

MR. LEACH:  I really don't think it does, Judge, for this reason.  When you were asking that whole line of questions I think that the way the jurors are perceiving those questions is did you ever witness things happening as opposed to actually engaging in, you know, end of the day communications by telephone, by e-mail, by text messages, you know, having to do with what was going on during the deliberative process.

And the only reason why I focus it specifically on extraneous information is because, Judge, I know that is your focus in this hearing, that you wanted to stay away from e-mails generally, but we do have at least one e-mail that relates to extraneous information.  And I just - I don't think that you had the focus sharp enough on that one particular e-mail.  And I assume that the Court knows who, or whether that the second person in the e-mail is, in fact, a juror or not.  And I represent to the Court that the defense does not know that.

THE COURT:  I do not know.

MR. LEACH:  Okay.  I think that we - I suggest respectfully, Your Honor, that you should make inquiry and we should learn that, we should know who was involved in that.

Judge, one thing that's unclear to me, and I think it's primarily because I don't recall how it happened during the deliberative process, but I think the jurors should be asked when and how and by whom they were provided copies of the indictment, copies of the jury instructions and copies of the juror service pamphlet, if they ever, in fact, received that.

What I am confused about here is, I think the testimony that we heard today is that this juror service pamphlet is on the Web site, and that is where the foreperson went in order to find this portion on being a foreman.  As I remember the affidavit of  Juror Number Five that was requested and eventually provided to all the jurors.

But I personally don't recall that at all.  And I think one could be left with the impression that the evidence here is that that information was provided to the other jurors by the foreperson.  Maybe I am incorrect about that and that the Court never provided that information to the jurors.

THE COURT: Or that Juror Number Five could be mistaken.

MR. LEACH:  Sir?

THE COURT: Or that Juror Number Five could be mistaken.

MR. LEACH:  Yes, sir, could be.  But if I remember the testimony of Juror Seven, he told the Court today that he, in fact, received that information.  And I haven't seen the exhibit again, but I believe that exhibit is actually with the Court right now, and I am not clear that that is an exhibit that the Court at any point provided to the jury.

THE COURT:  I will tell you that it was not an exhibit the Court provided to the jury.  Now, parts of what he read may have been included from the Court's standard instructions to the jury but that exhibit itself was not provided to the jury for the purposes of this record.

MR. LEACH:  Judge, finally, just in terms of the reasonable investigation of this Court, we would respectfully suggest, Judge, that there is a need now based on all of the jurors who have talked about these Internet searches that have been conducted, there can be little doubt based on the testimony that there were Internet searches conducted.

That the Court at this point issue subpoenas.  That the Court control that information yourself.  Whether we get access to it or not, that the Court get their - its own expert if necessary in order to download that information.  That you filter it if you see it necessary in terms of filtering it to the defense and the government.

But we respectfully suggest that the next step in thse proceedings should be to go to those sources that are outlined in our sealed motion and that you harvest that information and bring it into the breast of the Court so that we can make further determinations in this case.  And Your Honor, if I could just have a moment with my co-counsel.  (Pause)

MR. LEACH:  Just a couple of points, Judge.  Point of clarification.  I believe Juror 38 testified that Juror Seven said that - told - informed 38 that you could get a copy of the Court's instructions - the jury instructions from the Web site.  And that they came off the Internet.  Second point is -

THE COURT:  I'm sorry go back over that.  Juror 38?

MR. LEACH:  Yes, testified that Juror Seven said that you can get a copy of the jury instructions from the Web site off of the Internet.  And one other point, Judge, about Juror 66's testimony about Juror 40.

And the testimony there was that she had downloaded the indictment and worked on it over the weekend, and that there were notes on it from her work over the weekend.  And Your Honor, if I am not mistaken all the notes that were taken during the course of the trial, the notes that were taken in the courtroom, were not available to the jurors outside of the courtroom.

So, I think the Court needs to ask a line of questions of Juror 40 as to what were the notes composed of and where did they come from, with the possibility being, Your Honor, that they came from further research on the Internet.  I don't know if that's true or not.  But since the trial notes were not available to the juror, I am not exactly sure where the notes that were placed on that indictment would have come from.

THE COURT:  I don't recall her saying that she took notes on the indictment that she downloaded.

MR. LEACH:  I think Juror 66 testified that Juror Seven - I mean that Juror 40 had worked on the indictment that she downloaded over the weekend.  And I think Juror 40 also testified that there was one weekend where she was working on it and she wanted to read the indictment at her leisure and not under the pressure of all the other jurors being there and the confusion of deliberations.

But I think 66 said that Juror 40 came in and had notes on that indictment that she had been working on, whether it was over the weekend or overnight, I am not sure on that part of the testimony.  But if it is over the weekend, you know, what could be the source of the notes since her notes from the trial were here in the courtroom. Thank you, Judge.

Some of the comments by Siegelman attorney David McDonald

McDonald:  "Thank you.  And again, as for appellate purposes, I think we have made it clear but I want to make sure.  As regards Juror Number 40 and some of the other jurors, we would have asked at least to authenticate any e-mails that could be attributed to them.  Because as I understand Your Honor's order you are taking these issues in steps.  We had a hearing a couple of weeks ago on Juror Number Five, we had this hearing today.  I think Your Honor's order was clear that you wanted to take this step and you made it clear that you did not want to get into the other issues with the e-mails and that's why we haven't made numerous objections throughout the course of the proceeding.  But I want to make clear, number one, that we are preserving our objection.  We do believe that at this point in time when we had all the jurors here would have been the best time to at least attempt to authenticate the e-mails that have been presented to us that have been the basis for our Motion for New Trial.  And also to reiterate -"

The Court:  "Don't you think that this also - I mean the questions that the Court asked today would have included any content that would have been included on any of those e-mails whether or not the e-mails themselves were authenticated?"

McDonald:  "Yes, and that's exactly where I am going, Your Honor.  One e-mail that comes to mind in particular is when there's some purported discussion about the sentencing, and, Your Honor, I think it's clear what Your Honor was doing, you asked whether there was any discussions about that.  The next question for us to satisfy authentication purposes would be for us to at least confirm or deny from each of the jurors what their - whether any of these e-mail addresses belong to them.  Because that does create an issue that at that point in time either what we have is bogus e-mails or we potentially have some folks who don't remember e-mails that were sent or we have some testimony that may conflict with the evidence that has been presented to the Court.  At this point in time we don't have any authentication of the e-mails, and I want to reiterate our request that the Court go ahead and try to authenticate them."

"Finally, as regards Juror Number 40, we respectfully request the Court to have - I understand Your Honor has many different issues in front of it.  There's some pending issues, the Defendants' Sixth Amendment right, there's the right of the jury to render a verdict and move on, but a preeminent importance to the Court should be the Sixth Amendment right of the Defendants at this stage to have received a fair trial.  I would have requested Your Honor to ask of Juror Number 40, or at least confront Juror Number 40 with testimony from other jurors such as 66 and 30 and, of course, I think Number Five testified later, but to at least give Juror Number 40 an opportunity to refute any of that testimony or explain as best Juror Number 40 could how - reconcile how that testimony could coincide with the testimony that she rendered today.  One moment, please, Your Honor."