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.
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 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:
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..."
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:
The government also says that the "more specific" content of the latest alleged emails make the arguments in the case less, not more credible.
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: