Scrushy/Siegelman Attorneys Receive more E-mails: Strong Difference of Opinion Between Government and Defense

MONTGOMERY, Ala., Dec. 28, 2006 - It never seems to end  - the corruption case involving former Alabama Governor Don Siegelman, businessman Richard Scrushy and the case of the "mysterious" or some would say "manufactured" e-mails.

Did several of the jurors send e-mails to each other, especially during the final days of jury deliberations in which they discussed evidence from outside the deliberation room, outside of evidence presented by the court and outside the presence of all 12 jurors?

Attorneys for defendant Richard Scrushy continue to argue this is, in fact, the case, if the purported e-mails can be authenticated.

Or, are the e-mails fabricated and being used by someone to come to the aid of one of the defendants or even possibly to make it look like the defendants are tampering with or investigating the jury?  We may never know.

The Latest Salvo

The latest salvo in this ongoing battle apparently got started last Wednesday, Dec. 20 when someone posted,  from Montgomery, alleged copies of purported e-mails between jurors Katie Langer and Sam Hendrix to attorneys for Richard Scrushy -- Terry Butts, Art Leach, and Fred Helmsing and to Siegelman attorney David McDonald.  The emails started arriving Thursday, Terry Butts says his came in the mail Thursday afternoon, but he didn't actually get it from his secretary until first thing Friday morning.

Update:  As a matter of full disclosure, on Dec. 29, I finally got around to opening office mail and in my little bundle was an envelope with the same e-mails sent to the attorneys and other reporter(s).  Mine was postmarked Dec. 22.

The first purported e-mail is dated June 25 at 10:09 p.m.

....judge really helping w/jurors...

still having difficulties with #30

...any ideas???

keep pushing on ur side

did not understand ur thoughts on statute

but received links.

[first name of Juror B]

The second email is allegedly from the same date at 10:41 p.m.

I can't see anything we miss'd. u?

articles usent outstanding! gov & pastor up s---t creek.

good thing no one likes them anyway. all public officials

r scum; especially this 1. pastor

is really a piece of work

...they missed before, but we won't

...also, keepworking on 30...

will update u on other meeting.

[first name of juror B]

The two jurors who have been put in the spotlight of this controversy, Langer and jury foreman Hendrix, have denied the authenticity of the e-mails to the Mobile Press-Register's Eddie Curran, who received a copy of the e-mails on Tuesday.  Defense attorneys out of an abundance of caution were careful to again couch the names of the jurors as letters of the alphabet.  As to why the media is starting to get copies of the emails, Scrushy senior attorney Art Leach told , "I don't really understand.  (It) doesn't make a lot of sense to me."

Leach tells me there was not a letter with this last dispatch although the motion seemed on initial reading to indicate there was one which is why I asked him about it.  "No sticky note, no additional pages, at least in the ones I've received excluding the first one (mailing) where there was some sort of note.  Everything we received should be in our filings."

Leach says he feels that it is "more likely the Court will look to authenticate the e-mails" this time in light of the fact "two jurors have come out and said the e-mails are not theirs in public, but not in court."

As he's told since the purported e-mails came to public's attention in court filings, the Georgia attorney reiterated, when asked if he had any knowledge of the e-mails and their origin,  "I categorically deny any knowledge of where the e-mails are coming from or who's responsible for them."

Getting the Complete Picture

Leach says the law is clear that the judge has to get the "complete picture.  He has not done that."

And in their motion defense attorneys for Mr. Scrushy sound a familiar theme:

"The new e-mails, if authenticated, are clear and substantial evidence of jury exposure of extrinsic evidence and this Court has an unmistakable duty to ensure that "the entire picture [is] explored."  Remmer v. United States, 350 U.S. 377, 379, 76 S.Ct. 425 (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 F2d 654, 660 (2d Cir. 1978). "

"When such a fundamental concern is involved, and where the review of readily available documents from either the jurors' computers, their ISPs, or their network providers can resolve such an important question once and for all, it is incumbent on this Court to take those steps, and to do so in a timely fashion," says the filing.

Mr. Leach says the possibility that the Internet service providers (ISPs) may purge their files and remove vital information could leave the defense "dead in the water."  But on the other hand Leach says he believes there is one case that was reversed "based on the fact evidence had disappeared."

The motion says three things are now apparent:

  1. "That the Court has a clear duty to fully and fairly investigate all aspects relating to the authenticity of the e-mails."
  2. "That whoever is anonymously sending these e-mails shows no indication that he/she will stop sending more installments until this issue is fully resolved by this Court."
  3. "As pointed out in Defendant's sealed motion for subpoenas filed on November 9, 2006, supported by the affidavit of Phillip Hampton (EXHIBIT 16), these computer records are subject to destruction due to the passage of time.  In other words, the longer this Court delays a full inquiry into the authenticity of these e-mails, the more likely that such an inquiry will become meaningless.  Such a result would be unfair to Defendant, to the Government, and ultimately to the jurors involved."

"Because these two e-mails were not considered by this Court previously, Defendant respectfully submits that this Court has no discretion as to the issue of whether or not to investigate.  The Eleventh Circuit has repeatedly emphasized that it is "the court's duty to ensure that the jury verdict was in no way tainted by improper outside influences," United States v Rowe, 906 F.2d 654, 656 (11th Cir. 1990), and, in light of this duty, "the court must investigate the asserted impropriety upon merely a colorable showing of extrinsic evidence." Id. (emphasis added).

Siegelman Motion Minces Few Words

In the Siegelman filing, the attorneys mince few words.

"1. Governor Siegelman has received copies of two more emails between Jurors 7 and 40 which, if authenticated, indicate that Jurors 7 and 40:

a) deliberately and repeatedly defied the Court's repeated instructions against reviewing extrinsic information;

In prior Orders, this Court has criticized the Defendants for not citing legal precedent to support the relief requested (such as subpoenaing Jurors 7 and 40's hard drives to review email exchanged between the two during the course of this trial). There is no question that the Court has authority to grant the relief requested even though the Defendants cite no precedent for so doing.

16. The reason the Defendants have cited no similar cases is simple: the crimes committed in preparing Exhibits 23 and 24 are unprecedented. Either Jurors 7 and 40 set a new low for violating Court Orders and Defendants' Sixth Amendment rights, or some saboteur has set a new low for tampering with a jury verdict.

17. Either way, this Court should immediately conduct a thorough investigation of this matter so that whoever is the author of Exhibits 23 and 24 can be brought to justice.  If Jurors 7 and 40 did not exchange these emails, they, the Defendants, the Government, and this Court have been vexed by someone who has no respect for the judicial process and by someone who should be criminally charged. If, however, Jurors 7 and 40 did exchange these emails, Governor Siegelman is entitled to a new trial."

Government:  Likely Manufactured by Defendants; Defense: Slander

But assistant U.S. attorney Steve Feaga, in comments regarding the filing to, says enough is enough when it comes to investigations.

"This is like chicken little yelling that the sky is falling.  We've got criminals convicted of offenses that involved deceiving the public claiming they received anonymous e-mails.  The e-mails have nothing to do with the guilt or innocence of either defendant...they are truly unworthy of relief or any further attention.  If we had to satisfy every convicted criminal in their effort to escape responsibility for their actions, there would be no point in having any laws.  They got a fair trial.  They elected not to testify...There's no need to run down that rat trail in all likelihood manufactured by one of these defendants...Who in this world would call Richard Scrushy pastor, except Richard Scrushy himself?  I seriously doubt anybody who sat through the trial would.  This leads me to believe this was cooked up by someone friendly to Richard Scrushy's interest.  Nevertheless, the law doesn't provide a remedy.  They had their day in court and had their chance to tell their side of the story.  It's time to move on to sentencing and stop letting these little distractions get in the way of the administration of justice."  I was told acting U.S. Attorney Louis Franklin was out of the office this week when I called for comment.

Just as his senior attorney denied any knowledge about the alleged e-mails' origins.  Richard Scrushy spokesman Charlie Russell  says that  "Richard Scrushy denies having any knowledge of the e-mails or any person who might have sent them.  The U.S. attorney should join with the defense in asking the judge to investigate the e-mails and determine whether or not jury malfeasance occurred.  Richard Scrushy appreciates that some person of concern and courage is willing to try to do the right thing."

And Art Leach told in response to Mr. Feaga's comments:  "The government calls the defendants criminals and now alleges that the defendants fabricated the emails. First, it is contrary to Department of Justice (DOJ) rules to speculate about evidence the government does not possess - that is known as slander and that is why the DOJ does not authorize such statements. We say to the DOJ why don't you stop jawing about your speculations and figure out whether there is a basis for your slanderous remarks?  The reason - and the whole world can see it - is because you know that if the emails are authentic the defendants will be entitled to a new trial. No slander - no rhetoric - simple, hard facts.*

Leach told previously: "Constitutional rights matter in this country.  They matter because Constitutional rights stand as protection against a government which would apply one set of rules against an unpopular citizen and another for the rest of humanity.  Everyone who reads this and thinks about Former Governor Siegelman and Richard Scrushy needs to remember the passage - There but by the grace of God go I."

Judge Has Problems with Email Authenticity in Previous Ruling

But in his ruling denying a new trial to the defendants on Dec. 13, 2006, Chief District Judge Mark Fuller had problems with the authenticity of the emails and also whether or not any extraneous information came into the jury deliberations.

"..documents purporting to be juror emails on which the Defendants rely are wholly unrelated to any evidence of jury exposure to extraneous information or outside influence.  Even if the Court were to assume arguendo the authenticity of these documents, the documents only establish very limited evidence of premature deliberation in that some of the emails might relate do discussions of the case prior to the submission of the case to the jury, limited evidence of deliberation by fewer than all members of the jury, and very limited juror misconduct in the form of consideration of the possible penalty Defendants would face if convicted.

While it is unquestionably clear that such discussions constitute juror misconduct, it is not juror misconduct of the sort into which this Court can or should directly inquire by interrogating jurors, nor is it in this Court's view grounds for granting a new trial.  When all of the relevant circumstances of the case are considered, including the strength of the Government's evidence on the counts of conviction, the length of the jury deliberations, the Court's instructions to the jury, including its instructions not to decide or discuss the case prematurely and its repeated instructions regarding the presumption of innocence, as well as the split verdict reached by the jurors, the Court finds that Defendants suffered no prejudice from any premature deliberations, discussion of penalty, or deliberation with fewer than all members of the jury present."

Defense:  Judge Can't Make Determination based on Skepticism

Attorneys for Mr. Scrushy argue in their motion however:

Defendant respectfully submits that this Court cannot make this determination based on its skepticism of the authenticity of these e-mails, as it did in its previous Order.  In that Order, this Court repeatedly expressed its lack of belief in the authenticity of the e-mails ("Defendants relied on a document which they contend was sent to them anonymously and which may be a copy of June 25, 2006 e-mail communications between Juror #40 and someone who may be one of the other jurors in this case.",,,More importantly, this Court concluded in its Order that this e-mail (EXHIBIT 12), "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..."(Order at 28)

"The two most recent e-mails are in distinct contrast to the single e-mail that this Court focused on in its recent Order.  First, the two e-mails are far more specific:  they clearly refer to Internet research related to this case ("received links") and to the fruits of that research (:articles usent were outstanding!") (EXHIBITS 23 and 24)  Further, the only testimony on this point currently available to this Court are the bald denials of the two jurors that they accessed any extrinsic materials on the Internet other than the jury manual and the indictment..."  In a footnote attorneys argue "Defendant notes that the latter denial was hardly ringing, when the juror responded to the Court's question ("Those are the only two things you recall?") with the following: "As far as I can recall today."

"During the entire hearing, this Court failed to ask any juror to identify or to dispute the authenticity of any e-mail.  Based on the current state of the record and in light of the contents of the two new e-mails, Defendant respectfully submits that this Court has the duty to fully and fairly investigate the authenticity of these e-mails.  Hard evidence, most notably documents such as e-mails, oftentimes is far more reliable than a witness's memory, especially as to events that occurred over six months ago.  If the e-mails are found not to be authentic, then the matter of these e-mails is effectively put to rest, and the testimony of these two jurors is confirmed.  On the other hand, if the e-mails are authentic, then the testimony of these two jurors is called into question in its entirety.  Defendant's jury was fatally infected by the exposure to highly prejudicial extrinsic evidence, and a new trial must be ordered by this Court."

Has Technology Moved Ahead of the Court?

In a footnote:  "Defendant can only note that: (1) despite the clear recognition that such activity constitutes jury misconduct by a number of courts, it is apparent that no court has been presented with facts that ae as egregious as the instant case; and (2) the Government has cited no cases to this court where relief has been denied in similarly aggravated circumstances...It may simply be that technology has gotten ahead of the law relating to jury misconduct, and no court has been presented with this type of evidence before.  That reality should not be a basis for a refusal to apply clearly recognized principles of what constitutes jury misconduct when the evidence of such misconduct is substantial and in documented communications between jurors.  Judicial action in these circumstances would not be based on "an extension of the law."..Rather, it would be the application of existing law recognizing that such activity is unmistakably juror misconduct to a new, and possibly unique, set of facts where the misconduct is both far-reaching and proven by documentary evidence."

"Defendant respectfully submits that the proper course for this Court, as required by the precedent of the Supreme Court and the Eleventh Circuit, is to fully investigate Defendant's new and additional showing of jury exposure to extrinsic evidence and other related jury misconduct.  While this Court has discretion in how to conduct such an inquiry, Defendant respectfully submits that this Court does not have discretion to refuse to conduct such an inquiry...and that, under Supreme Court's direction in Remmer, "the entire picture should be explored."

"Defendant respectfully submits that the most appropriate and fairest method to do so would be to obtain the computers of the jurors, the records of their ISPs and network providers and, once those materials are fully reviewed, that this Court should conduct an evidentiary hearing at which the futher testimony of Jurors B and C, along with any other jurors who may be  involved in the communications in question (Jurors D and E, as well as any jurors identified by review of the foregoing records) is obtained.  Also, "upon good cause shown, granting Defendant a new trial"

Leach says,"There's no case I know of to do with e-mails (between jurors).  It really doesn't matter if it's e-mails or letters or something else.  The source is not important.  What is unique in this case is the volume."  He says normally in all the cases regarding extraneous information making its way in you have something like a newspaper that is brought in by one of the jurors and 11 of the 12 say they didn't know it was there and the 12th guy says it had no effect and "no harm no foul."  The attorney says in this case "the e-mails are so clear and away extraneous information about the case that it makes it clear there's a duty for the Court to investigate."

In Judge Fuller's mid-December order denying a new trial, the judge says, "Of course, Defendants urged the Court to obtain discovery from third parties which might have been able to authenticate these documents such as juror emails, but Defendants provided no legal precedent for such an unusual and intrusive investigation of jurors."

Mr. Leach says the judge is "skipping a step. He never went through the procedure to find out what was in front of the jury (regarding the e-mails).  "If the e-mails are authentic, the jurors were armed with arguments that the jury shouldn't have had.  They were using it to persuade.  That's outside pressure.  Not what the deliberative process is supposed to be."

More Disagreements

The Scrushy filing says however, "The issue of further inquiry into these e-mails by this Court must be viewed in light of three things.

  1. "The fact that Defendant and his counsel are constrained from any investigation of the authenticity of these e-mails by Local Rule 47.1 and the Orders of this Court.
  2. "Defendant has made repeated requests that this Court assist him in preserving, obtaining, or reviewing in camera the computer records that could readily prove the authenticity - or lack thereof - of the e-mails in question.
  3. "This Court has turned down each and every request."

And of course in his previous order Judge Fuller seems to disagree:

"A defendant seeking to attack a jury verdict against him on the ground that his right to an impartial jury has been violated does not have an unfettered ability to assail the verdict on that basis.  Local rules limit a defendant's ability to contact jurors and may prevent a defendant from gathering evidence relating to the jury's deliberations."

"Moreover, for nearly a century, courts have recognized a near-universal and firmly established common-law rule flatly prohibiting the admission of juror testimony to impeach a jury verdict.  See Tanner, 483 U.S. at 117. ..Indeed, the Eleventh Circuit and the Supreme Court have repeatedly found that district courts did not abuse their discretion in denying motions for new trial or in rejecting defendants' demands for the examination of jurors predicated on arguments of a variety of types of juror misconduct not encompassing external influence on the jury."  "The United States Supreme Court has repeatedly emphasized the necessity of shielding jury deliberations from public scrutiny.

"First, while it is true that the legal precedents cited to this Court by Defendants in support of their motion make it clear that premature deliberations or deliberations by fewer than all members of the jury are disfavored, the Court does not find that the cited cases actually hold the evidence of either type of juror misconduct warrants the grant of a new trial.  Indeed, this Court, through its own research, was unable to locate any authority which holds that to be the case.  As the movants, the Defendants are charged with informing this Court of the legal precedent for the relief requested and, if it does not exist, with candidly stating that they are in good faith seeking an extension of the law.  In this Court's view, its role is to follow the law rather than to create it.  The absence of clear legal support for Defendants' argument from either the United States Supreme Court or the Eleventh Circuit court of Appeals makes this Court very skeptical about the legal predicate for the relief sought from the verdict on the basis of alleged juror misconduct.

"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.  No evidence, argument or instruction concerning the penalties that any defendant might face had been discussed during the trial.  To the contrary, the jury was instructed not to concern itself with matters of penalty.  While the Court believed it possible that either this email was not authentic or that jurors might have been speculating about possible penalties and that either explanation would explain the comment regarding the penalty, out of an abundance of caution, the Court did ask all members of the jury about any exposure to extraneous information about penalties any defendant might face if convicted.  The jurors credibly and unanimously denied any such exposure.  Accordingly, the Court is satisfied that none of the documents purporting to be juror emails relate in any way to any exposure to outside influence or information."

Familiar Arguments from the Defense: Three Types of Juror Misconduct

In the Scrushy filing on Thursday, attorneys argue, "Under the applicable case law, Defendant respectfully submits that Defendant has made a new, and additional, "colorable showing of extrinsic influence [and] that the court must investigate the asserted impropriety."  United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir. 1987)...."

Not deterred by Judge Fuller's words in his last order, attorneys for Scrushy again bring back familiar arguments in their motion:

"Defendant respectfully submits that the content of the two most recent e-mails, along with the content of the previously-submitted e-mails, require that this Court reconsider its previously-entered Order denying Defendant a new trial in this matter. In the alternative, Defendant respectfully submits that the two most recent e-mails constitute newly discovered evidence under the case law of this Circuit and require that this Court either grant Defendant a new trial pursuant to Rule 33(b)(1) or hold an evidentiary hearing at which the necessary computers, ISP and network evidence are available, along with the jurors implicated in the e-mails.

  1. "Collectively these two e-mails constitute strong evidence that both Juror B and Juror C were conducting Internet research relating to the subject matter of this case, consciously exposed themselves to extrinsic evidence on the subject matter of the case, and at least as to Juror B, that juror believed that the extrinsic evidence confirmed the juror's belief that both Defendants Scrushy and Siegelman should be convicted."
The attorneys say there is "strong evidence that at least Juror B was aware of and taking into consideration extrinsic facts concerning Defendant Scrushy's prior acquittal on other criminal charges brought in the Northern District of Alabama.  If authenticated, these e-mails...that at least two jurors obtained extrinsic evidence related to the case by searching the Internet, that the extrinsic evidence was prejudicial to Defendant, and that the jurors considered the evidence.  Further, since these e-mails occurred during jury deliberations...the effect of such exposure to extrinsic evidence is highly prejudicial."
  1. "The second type of misconduct evidenced by these two e-mails is the apparent activities of thse two jurors outside the presence of the entire jury...If authenticated, these two e-mails are evidence that both Jurors B and C were carrying on meetings or discussions with other jurors in order to convince them to find Defendants Scrushy and Siegelman guilty, and that these discussions occurred outside the presence of the other jurors."  The attorneys say also, "If authenticated the most recent e-mails, especially when viewed in conjunction with the contemporaneous e-mails to other jurors, constitute clear evidence that four jurors were disobeying the Order of this Court and conducting deliberations apart from the entire body of twelve jurors."

  2. The third type of misconduct alleged is "an orchestrated effort, beginning no later than May 29, 2006 (EXHIBITS 10 and 11), by the two jurors to coerce other jurors into convicting Defendants Scrushy and Siegelman."

Defendant respectfully submits that the Court and the Government should be in the forefront of the effort to obtain the closure on this issue that the computer-related evidence would provide, not opposing it.  Simply put, if the two most recent e-mails are authentic, they show beyond question that the jury was exposed to extrinsic evidence and that Defendant is entitled to a new trial.  If they are not authentic, this line of litigation should end and the jurors be taken out of the glare of these accusations.  The only way to do that is to obtain and review the records and hear from the jurors involved.  And only this Court has the power, and the duty, to do so."

Siegelman Attorneys Request New Trial and "Blackberries"

"Based on this newly discovered evidence, Governor Siegelman requests a new trial. In the alternative of immediately granting a new trial, Governor Siegelman requests that the Court Order Jurors 7 and 40 to immediately produce all hard drives, Blackberries, cell phones, or any other device capable of sending email or text messages that were used by Jurors 7 and 40 during the course of this trial; that the Court conduct an independent investigation into what, if any, emails or text messages were exchanged between Jurors 7 and 40 following their selection as jurors in this case and throughout the trial; that the Court Order Jurors 7 and 40 to immediately disclose to the Court all Internet Service Providers (ISP), email providers, and cell phone companies that provided email, text messaging, or cell phone services to them during the trial; that the Court Order all such companies rendering Internet, email, cell phone, or text messaging services to Jurors 7 and 40 produce evidence of all communications between Jurors 7 and 40 during the trial; and that upon conclusion of the Court's investigation, the Court grant Governor Siegelman a new trial.

WHEREFORE, the premises considered, Governor Siegelman requests that the Court enter an Order supplementing the record as to Governor Siegelman's new trial motions, obtain the information set forth in Paragraph 20, conduct an evidentiary hearing based upon the newly discovered evidence discussed herein, and, upon good cause shown, grant Governor Siegelman's Motion for a New Trial, and for such further, other, and different relief to which Governor Siegleman is entitled."


So are Jurors 7 and 40 telling the truth?  Is there someone trying to tamper with the judicial system?  What was the jury thinking?  Perhap's John Mortimer's wise old barrister, Horace Rumpole has some insight, "It is the duty of the Judge to tell you as a jury what to do, but you have the power to do exactly as you like." And what you do, Members of the Jury, is a matter entirely between God and your own consciences....'

Reported by:  Helen Hammons

*statement corrected.  Cut and paste malfunction on my part.