MONTGOMERY, Ala., Dec. 13, 2006 -- Federal District Judge Mark Fuller has now denied the request of former Governor Don Siegelman and businessman Richard Scrushy for a new trial. Judge Fuller says he will not set a sentencing date until the issues related to challenges to the composition of the jury pool are resolved. The judge issued his memorandum and order early Wednesday morning.
Richard Scrushy told me by phone that he wanted his lawyers to do all the talking on this matter. Scrushy senior attorney Art Leach is heavily engaged in other issues in Atlanta and issued a generic media statement.
Acting U.S. Attorney Louis Franklin says it will be difficult for the defendants to get a favorable ruling at the 11th Circuit. He says the judge had to weigh the credibility of the jurors and make a factual finding and since the judge is the one who sat and observed the jurors, Judge Fuller's finding is going to be "hard to attack, hard to deal with for the defendants."
Franklin says the 11th Circuit judges know they don't have the same advantage Judge Fuller had of seeing and hearing the jurors.
Former Governor Siegelman says, "I think the 11th Circuit will come in like Shaquille O'Neal and slam dunk a new trial for us."
Judge Fuller says he carefully weighed the evidence:
- The Court finds that there is no credible evidence that, prior to the verdict in this case, any juror was subjected to any outside influences such as bribes, threats or other attempts by anyone other than another juror to influence the jurors' thinking about the case or the outcome of the case.
- Based on unanimous, sworn denials of the jurors at the November 17, 2006 hearing, the Court finds that there is absolutely no credible evidence that any juror was exposed to any extraneous or extrinsic information about the penalty that might be applicable to any defendant if he was convicted of the charges in this case. The Court further finds that the document (Doc. #467-15), anonymously sent to Defendants, which purports to be an email between two jurors during the trial which says "penalty 2 severe" does not constitute credible information which can in any way cast doubt on the sworn testimony of the jurors before this Court to the effect that they were not exposed to any extraneous or extrinsic information about the penalty that might be applicable to any defendant if he was convicted of the charges in this case.
- The Court finds that Juror #7's sworn testimony at the November 17, 2006 hearing - that he had briefly viewed information on the role of a jury foreperson from this Court's web site - is more credible than the media report in which an unsworn statement attributed to Juror #7 indicated that he had conducted Internet research using Google to find information on the role of the foreperson. Thus, the Court finds that the credible evidence establishes that Juror #7 was exposed to extrinsic evidence during deliberations that indicated that the foreperson presides over the jury's deliberations and must give every juror a fair opportunity to express his or her view as set forth by the juror information on the Court's own web site."
- The Court finds that the credible evidence establishes that Juror #7 mentioned to other members of the jury that he had researched the role of a jury foreperson, that this fact was mentioned early in the deliberations, most likely on the second day of deliberations, and that total time this matter was discussed by any member of the jury was no more than a few minutes.
- The Court does not find credible the wholly uncorroborated testimony of Juror #66 to the effect that Juror #7 looked up information on the employment of a defendant other than Scrushy or Siegelman (presumably Roberts).
- Juror #5's testimony before this Court is far more credible than any information attributed to him by any of the documents purporting to be affidavits dated August 9, 2006..."
- While Juror #5's testimony before this Court on November 17, 2006 is not necessarily inconsistent with his September 1, 2006 affidavit. To the extent that any variance between the two exists, the Court finds that due to the circumstances under which the affidavit was obtained from him, Juror #5's testimony before this Court is far more credible than his September 1, 2006 affidavit.
- Juror #30's testimony regarding Juror #40 and Juror #7 having contact with extraneous information is based on assumption and speculation and therefore is not more credible than the testimony of either Juror #40 or Juror #7.
- Juror #38 testified that Juror #7 had been on the Internet and one of the television stations had all the proceedings on it and you could go read it does not constitute credible evidence that Juror #7 or any other juror actually did read any Internet media coverage relating to the trial.
- The Court finds credible the testimony of Juror #7, Juror #22, and Juror #40 regarding their response to inadvertent contact with media coverage relating to the trial. Specifically, the Court finds credible the testimony of Juror #7 that he may have inadvertently seen news story headlines in the newspaper or on the Internet, but that he did not read any articles or intentionally access such content until after the trial.
Similarly, the Court finds credible the testimony of Juror #22 that she may have inadvertently heard parts of television news coverage about the trial, but that she avoided it as best as she could by leaving the room, turning off the television sound, or having her husband turn off the television sound. Finally, the Court finds credible the testimony of Juror #40 that she saw a news headline on a newspaper Internet site while she was looking for an unrelated news story, but that she did not read the article.
- The Court finds that the credible evidence before it establishes that Juror #40 did obtain an unredacted copy of the Second Superseding Indictment from the Court's Internet web site during the jury's deliberations and that she did read this document outside of the juror room for the purpose of being able to read it at her leisure. The Court further finds that the credible evidence before it establishes that Juror #40 disclosed to the other jurors that she had obtained a copy of the Second Superseding Indictment from the Internet and reviewed it. The Court further finds that the total time the jury spent discussing this fact during deliberations did not exceed thirty minutes.
- The Court finds that the credible evidence before it establishes that Juror #7 did obtain an unredacted copy of the Second Superseding Indictment from the Court's Internet web site during the jury's deliberations and that he did read this document outside of the juror room for the purpose of being able to think about the document and how to organize the jury's discussion of the counts in it and the Court's instructions outside of the setting of the jury deliberation room.
The Court further finds that the credible evidence before it establishes that Juror #7 disclosed to other jurors that he had obtained a copy of the Second Superseding Indictment from the Internet and reviewed it and that he brought the document into the jury deliberation room. The Court further finds that Juror #7 referred to this document during two days of the jury's deliberations toward the beginning of the process and then discarded the document. The Court finds credible the testimony of Juror #7 that his notes and the use of this copy of the indictment was intended to help organize and facilitate the process of deliberations."
Acting U.S. attorney Louis Franklin tells wsfa.com that he's not surprised at the ruling based on "the arguments they (the defense) made. They're final arguments relied on those emails. That spoke of desperation. It wasn't going to happen. If they had to rely on emails, that's what told me we were going to get a good ruling from the judge."
Siegelman attorney Vince Kilborn says he was not surprised by the order "in light of the fact we had severely limited chances to pursue what we set out to pursue...you can't prove something unless you're permitted to ask questions and get the evidence."
I asked Kilborn about other court cases that discuss getting the entire picture of alleged jury impropriety. "The judge believes he got the entire picture. We respectfully disagree..and we are going to pursue getting the entire picture, particularly the email."
Kilborn says it's time for whoever sent the copies of the alleged emails to come forward. "I know it might be difficult, but we're not playing Deal or No Deal. We are talking about two men's lives."
He says that person needs to come forward with any additional emails or information. Judge Fuller has stated he doesn't believe the emails go to the issue of extrinsic information reaching the jury.
Kilborn says it would have been a simple process for the judge to ask the jurors,'Did you get or send the email?'
Asked about the judge basically saying the statements of Juror #7 and Juror #40 were more credible than those of other witnesses, Kilborn says to him Juror #66 and Juror #38 were credible and "again it points out if you're not allowed to cross examine...you can't get to the issue of credibility."
But prosecutor Louis Franklin says Juror #66 didn't have credibility. He says no one else corroborated #66's testimony that Juror #7 looked into the background of another defendant. Franklin asks, "So where did that come from?" Franklin says based on looking at the two jurors, "To quote Vince Kilborn,'That dog doesn't hunt.'"
Further in his order the judge says that
Judge Fuller says Siegelman's argument "mistakes the nature of the inquiry. He focuses too much on arguments about the actual effect of events on the deliberations of the jurors in this case rather than properly arguing about the probable effect on a hypothetical average juror."
Judge Fuller says the totality of the "relevant circumstances establishes that Defendants were not harmed by the exposure of some of the jurors to information from the Court's web site about the role of the foreperson." This is the same argument he has made previously.
Also, Fuller says the exposure of two jurors to the "un redacted Second Superseding Indictment and the exposure of some of the other members of the jury to the fact that those jurors had obtained a copy of the document from the internet does not created a reasonable possibility of prejudice to the Defendants in the circumstances of this case."
The judge says he is satisfied "that these jurors did not intentionally seek information about the case from media sources and that these jurors avoided obtaining the content of the media reports once they realized that the case was being discussed."
In his order the judge says that the defendants did not provide legal precedent for their allegations of alleged juror misconduct.
Judge Fuller calls the "'evidence' of premature deliberations or deliberations by fewer than all members of the jury in this case...problematic." He says attorneys "provided no legal precedent for such an unusual and intrusive investigation of jurors."
The judge does say that, "Initially, the Court had some concerns that the alleged email which included a statement that the penalty was too severe might arguably present some evidence that some or all members of the jury had been exposed to extraneous information on the penalty."
Judge Fuller says the fact there was a split verdict in the case is evidence "demonstrating that the jury carefully weighed the evidence and reached a reasoned conclusion free of undue influence and that the jury did not decide the case before the close of the evidence."
Finally, the judge says the jury handled the pressure of the case "admirably."
Attorney Vince Kilborn says his client is now "in limbo" because the judge did not set a sentencing date. He says without sentencing the "defense is prevented from moving forward with the 11th Circuit." He says the issues related to the racial composition of grand and petit juries in the Middle District are very important however. "The logjam has to break. We have to get a decision." Similar jury composition issues have been raised in the Carmichael case. The magistrate judge in that case recommended that the motions related to the issue be denied by Judge Thompson. Magistrate Judge Charles Coody has not yet issued a recommendation to Judge Fuller in the Siegelman/Scrushy case.
Regarding the appeal to the 11th Circuit, Scrushy attorney Art Leach has previously told wsfa.com that,"There's too many variables to really know how long it's going to take. Different judges on different panels move at different speeds at the 11th Circuit, but I think you can rest assured that it's probably going to take about a year, and it can take longer it can take shorter. It just depends how fast it gets through the process and who's on the panel and who gets assigned to write the opinion. All those sort of things are variables that's there's really no way to calculate."
Acting U.S. Attorney Louis Franklin says his office has not received a draft copy of the pre-sentence report from probation to review. He says the prosecution and the defense will receive the draft copy at the same time. "They send it through the mail," says Franklin. He says once they get the draft report, they have usually 10-15 days, "sometimes a month" to make objection. Franklin says there then will be a conference with both sides represented with the probation officer where "we get to argue about what the pre-sentence report says and try to resolve whatever issues we can."
The government attorney says the probation officer takes what is said and submitted in writing from both sides and goes back and does more research before submitting the report to the judge. The report to the judge contains the objections from both sides and the recommendation from the probation officer. Then the sentencing hearing is held and the court decides the issue.
Franklin says he believes that although there is no way to really tell at this point, he believes that Scrushy may be looking at somewhere around 10 years and Siegelman between 12-14 years, although the statutory maximums for the counts add up to a much higher sentence. He says even though Siegelman was not convicted on the RICO counts in sentencing those counts can still be used to decide how much time he will serve.
When asked about the issue of acceptance of responsibility, Franklin says he doesn't expect the defendants will get any points taken off for accepting responsibility. "They have to admit what they've done." He says with both the defendants "it's always somebody else's fault."