MONTGOMERY, Ala., Jan. 19, 2007 -- Shortly before 6:30 p.m. Friday evening, government attorneys filed their response to the latest motions by attorneys for Richard Scrushy and former Governor Don Siegelman in which the defendants asked Chief District Judge Mark Fuller to reconsider his order denying the defendants a new trial or to give the defendants a new trial based on new evidence, two more emails received by attorneys and alleged to have been sent between two jurors in late June during the trial.
In their response to defense motions, the government reiterates its contention that the emails are "inherently discreditable" and it is time to move on to sentencing in this case.
"Defendants' Motions do not justify a new trial or any other action by this Court because of their most unreliable and inherently discreditable foundation. The government respectfully submits that such motions, based on anonymous allegations in the form of unauthenticated documents, can and should be rejected on their face. Any other conclusion would, as well-settled precedent establishes, open the judicial process, and the jurors upon which it depends, to endless allegations, investigations, and delay - severely jeopardizing, if not destroying, public confidence in the criminal justice system. Moreover, even assuming arguendo that the allegations should further detain this Court and this case on their purported merits, they are insufficient to warrant any of the requested relief.
The government respectfully points this Court to the jury's yeoman work in this case - work that was completed on June 29, 2006 - and urges it to quash these unfounded attacks on the very citizens who have admirably and unselfishly performed their civic duty by moving this case with all alacrity to sentencing. "
The government continues to respond to what it sees as attacks by the defendants "on the integrity of the verdict and of the jurors in this case with yet another round of unauthenticated emails, purportedly between jurors, which they state their counsel received anonymously... Defendants' rolling, anonymous attacks on the jurors and their continued effort to investigate and examine the jurors in violation of Federal Rule of Evidence 606, fall far short of the well-settled standards for the extraordinary relief of a new trial, or indeed for any further hearing, investigation, or other action by this Court. Accordingly, the government respectfully submits that the Motions should be denied, and this case should proceed to judgment as soon as possible."
Scrushy senior attorney Art Leach has this to say about the government response:
"The government's latest response is the most interesting document the government has filed in this case to date. The government again asserts that the Court need not investigate the latest round of emails because they are inherently unreliable. The government asserts that the defendants have not even tried to explain why the emails were not previously submitted, when they government knows from all of our filings that the emails have been sent to us anonymously and we have not gotten to talk to the source of those emails.
The government further argues that the emails are inherently unreliable because they are too good to be true, matching virtually every legal requirement as set out by Judge Fuller in his earlier order denying the defendants a new trial. The government alleges that the emails have been tailored to fit the law and facts as the Court has developed them in the public record. The clear and unmistakable question that has to be asked is that if the government agrees with the defendants that these emails show a flagrant violation of the defendants' rights - if and when they are authenticated - should we not at least find out if they are real before we rush off and sentence these two men? It is just old-fashioned common sense and basic logic - in Constitutional terms it is called fundamental fairness - the Department of Justice is engaged in a whitewash when facts and cold hard evidence will answer the nagging question in this case - are the emails real?
The government says the court has broad discretion in how to deal with this issue, that the defendants have not shown a "colorable basis for judicial action, and that the defendants have not shown prejudice to the defendants from the new evidence.
As to the discretion of the court, prosecutors argue:
"Defendants repeatedly argue in the face of overwhelming precedent to the contrary that this Court has no discretion in determining whether the latest purported emails require an investigation of juror misconduct. As the Court has previously noted, however, the issue of whether to take the extraordinary step of investigating juror conduct is committed to the sound discretion of this Court:
"While initially evaluating the [original] joint new trial motion, the Court was mindful that it had ‘broad discretion as to how to proceed when confronted with an allegation of jury misconduct. . . .'" Memorandum Opinion and Order, Doc. # 518 at 38 (quoting United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir. 1987)). Thus, there is no per se rule requiring an inquiry in every instance of alleged misconduct. United States v. Hernandez, 921 F.2d 1569, 1578 (11th Cir. 1991) ("The decision to investigate allegations of jury misconduct rests within the sound discretion of the district court."); United States v. Cuthel, 903 F.2d 1381, 1382-83 (11th Cir. 1990).
In other words, where a defendant has failed to come forward with credible evidence of juror misconduct, the trial court has no duty to conduct any investigation. Hernandez, 921 F.2d at 1578 ("It is only when the defendant has made a colorable showing of extrinsic influence that the court must investigate the asserted impropriety.")
Referring again to U.S. v. Cuthel, the government contends the defendants cannot get an investigation or new trial absent, "clear, strong, substantial and incontrovertible evidence . . . that a specific, nonspeculative impropriety has occurred." Cuthel, 903 F.2d at 1382-83.
The government contends also that "there is a well-settled presumption that a jury has followed the Court's instructions and conducted itself properly.
Also, prosecutors note "this Court has already "had little difficulty" applying the overwhelming precedent to establish as the law of this case that such allegations are "insufficient as a matter of law to require a new trial." Memorandum Opinion and Order, Doc. # 518 at 38.
Regarding the purported emails the government attorneys argue, "Defendants admit, as they must, that this Court has already ruled that anonymously received, unauthenticated emails are not a colorable basis for a new trial or for an investigation of the jurors. Scrushy Motion at 10-11; Memorandum Opinion and Order, Doc. # 518 at 28..."
"Defendants thus ignore the salient point in this Court's careful analysis of the entire email issue: There were insufficient indicia of authenticity and reliability in the original emails to colorably support any investigation, action, or remedy. The latest purported emails are just as bereft of reliability and authenticity as the original purported emails, which this Court has already rejected as a basis for post-trial relief.
The provenance of all the emails Defendants have submitted to this Court remain anonymous and incredible. Like the original purported emails, the latest purported emails arrived to this Court through defense counsel aligned with Defendants. Accordingly, for the reasons and under the precedents previously briefed by the United States, there remains no colorable basis for action by the Court, let alone the extraordinary relief of further investigating the jurors or granting a new trial. United States v. Caldwell, 776 F.2d 989, 999 (11th Cir. 1985) ("the anonymity of the call in our minds simply creates no burden to investigate").
The government says the court has already found the claims related to exposure to extrinsic evidence, partly based on the original purported emails, to be minimal.
Regarding the issue of possible discussion by jurors of penalties to defendants, the government says the following:
"Despite this Court's findings, Defendants now seek relief based on "more specific" allegations of juror wrongdoing. For example, the latest purported email, like the original purported email, refers to the issue of penalties, adding content concerning unknown "links" and "statutes." Yet this Court questioned each juror, and found that "[b]based on the unanimous, sworn denials of the jurors at the November 17, 2006, hearing ... there is absolutely no credible evidence that any juror was exposed to any extraneous or extrinsic information about the penalty." Memorandum Opinion and Order, Doc. # 518 at 28."
The government also says that the "more specific" content of the latest alleged emails make the arguments in the case less, not more credible.
"Moreover, while Defendants assert that the latest emails are "more specific" in their content on issues such as penalties, such that they are now more credible, the exact opposite is true.
The nature of "specificity" contained in the latest purported emails undermines any credibility that the original purported emails may have had when the Court originally and correctly rejected them as a basis for post-trial relief. Importantly, the Defendants do not even attempt to explain why the latest purported emails were not submitted with the original purported emails prior to the briefing, hearing, and opinion in this matter.
With that in mind, the latest purported emails, arriving by Defendants' account in late December 2006, are more specific in purporting to indicate that (1) certain jurors exposed themselves to extrinsic evidence and (2) that certain jurors deliberated improperly outside the presence of the full jury.
Thus, the latest purported emails arrived in Defendants' possession only after this Court elucidated in its written opinions and conduct of its hearing on the first purported emails that (1) the legal key to instigating investigation of the jurors was evidence of exposure to extrinsic material, and (2) that inquiry into actual deliberations by the full jury was entirely improper under Federal Rule of Evidence 606.
Accordingly, the complete absence of any explanation for these rolling submissions, and their transparent tailoring to the law and facts of the case as the Court has developed them in public hearings and on the record, demonstrate that the source of all of the purported email is inherently unreliable. The most logical conclusion to be drawn from the intermittent submission of the purported email during the protracted progression of this case post-trial is that the source of the purported email has simply reacted to the Court's rulings by concocting material designed to meet the legal standards recognized and applied by the Court. Rather than drawing the inferences Defendants propound (including the inference that jurors perjured themselves, Siegelman Motion at 1), this Court, in light of the jurors' testimony at the evidentiary hearing, should continue to apply the presumption that the jury followed the Court's instructions on avoiding extrinsic information and conducting deliberations."
As to the defense not showing prejudice the government says: "Even if the latest purported emails could be established as genuine by further extraordinary inquiries and investigations, the brief colloquies at issue on their face cannot establish prejudice sufficient to warrant a new trial."
The government argues the defense evidence is simply not credible and as argued in previous filings and statements it is time to move on:
The government submits that the Court can and should deny the present motions based on the lack of credible evidence to support them. Further, the government, as Defendant Scrushy suggests, see Scrushy Motion at 12, expects that this stream of unauthenticated emails and attacks on the jurors and the criminal justice system of the Middle District of Alabama will continue unabated until this Court finally sentences Defendants for the crimes for which the jury found them to be guilty as charged.
Therefore, to promote justice, protect the sanctity of the jurors, and maintain confidence in the federal criminal system, the government respectfully submits that this Court should apply the law of the Circuit and of the case, deny the present motions without reaching their merits on the issue of prejudice, and swiftly proceed to sentencing."