Evening Update: Federal Judge Orders Government to Respond to Scrushy Motion

MONTGOMERY, Ala., Jan. 11, 2007 -- Chief U.S. District Judge Mark Fuller has ordered the government to "show cause in writing on or before January 19, 2007" as to why the motion filed by Richard Scrushy's defense team asking for reconsideration of Fuller's denial of a new trial "should not be granted."

In Scrushy's previous motion, attorneys submitted more purported emails received in late December that were allegedly between two jurors, both of whom have denied in the media that the copies of the supposed emails are authentic.  The attorneys asked as an alternative to the judge reconsidering his order denying a new trial a new trial be granted based on the newly discovered evidence.

Attorneys for former Governor Don Siegelman made basically the same request.

Attorney Vince Kilborn told wsfa.com late Thursday afternoon,"I always get my hopes up when the judge asks the government to file something stating why a motion shouldn't be granted...They (government) are going to have to argue again they (emails) aren't authentic but they can't prove that either.  The Court is going to have to decide...The government's fought every effort to get a new trial.  Seems to me at some time they'd want to get to the bottom of this.  Let's get the computers.  It's beyond question there would have to be a new trial if the emails are authenticated."

As to the question of the person sending the purported documents to attorneys.  "If there's a fiction writer out there, let's put him in the slammer or send him to Iraq to fight."

Kilborn says he feels "pretty good about the 11th Circuit giving us a favorable ruling."  As to Judge Fuller's actions, "I can't accept that a federal judge would just put defendants through the motions.  He's going to have to take a hard look at the new emails.  Judges take an oath to uphold the Constitution of which the Sixth Amendment is part."

Former Governor Don Siegelman told wsfa.com:

"I'm hoping Judge Fuller will recognize that somebody, some court has got to set the standard for appropriate use of technology by jurors.  Some court somewhere is going to set a standard that will be looked at by the Supreme Court.  I'm hoping Judge Fuller will see himself as the one.  No court has ruled on it.  This is a chance for Judge Fuller to make his mark."  Siegelman went on to say he thought jurors should not be allowed to use cell phones in court during the trial due to their text messaging capabilities as well.  He says telling them they can go on the Internet but have to get off when they see something related to the trial simply doesn't work.

Judge Fuller in other orders has said he does not see it as his job to make the law, has questioned the authenticity of the documents being sent to attorneys and previously stated no desire yet to go down the path of questioning jurors about the alleged emails or issuing subpoenas to Internet Service Providers for records.

Acting U.S. attorney Louis Franklin was not immediately available for comment Thursday.

Judge John Carroll, Dean of the Cumberland School of Law at Samford University says of Fuller, "His approach is intelligent...I think in all honesty the only way he could get into trouble is if he doesn't allow more comment.  It's obviously a high profile case, it's obviously going to the 11th Circuit."

Carroll says Fuller "doesn't have to worry about whether or not the emails are authentic if they don't rise to the level of a significant legal claim...It is unusual in the sense that these new things keep popping up again and again, but he wants to have all of these issues settled before it goes to the 11th Circuit."

Carroll says the layman may wonder why the case just can't move on to sentencing, but in the end "this is the most efficient way to do things."  The former magistrate judge says it is not unusual in a high profile case for new issues and every possible issue and argument to be raised by attorneys..."That's what's ethically required of them," says the former judge.  He says he has personally been involved in protracted post-trial motions and arguments.  Judge Carroll says,"The absolutely safest way to proceed is the way he's doing it.  Nobody can then say at the 11th Circuit they didn't have the opportunity to present their case."

He says this case is unusual however because "One, of the significant media attention and two, the fact you're dealing with emails and Internet downloads rather than conversations."

As to the jury challenge concerning the racial makeup of the jury pools in the Middle District of Alabama, Carroll says some changes to the system have already been made and although he's not aware of the additional evidence that may have been presented in the Scrushy filing which would make it different from the one filed by the same attorney, James Jenkins, in the Carmichael case  "unless there's additional compelling evidence," he doesn't see the jury challenge being granted.  "The Court took a long, hard look at the previous (Carmichael) challenge and made some changes."

The jury challenge in the Scrushy case has to be ruled on before the case can move on to sentencing.

Reported by:  Helen Hammons