Judge Orders Arguments Via Phone on Scrushy Jury Challenge

MONTGOMERY, Ala., Feb. 1, 2007 -- Magistrate Judge Charles S. Coody has ordered a telephone conference and oral arguments related to the jury challenge filed in the case of former Governor Don Siegelman and businessman Richard Scrushy for Feb. 6, 2007.

The issues on the table will be related to motions related to the discovery of jury records in the challenge having to do with the racial composition of juries in the Middle District of Alabama.

Scrushy had asked to supplement the record in the challenge with a" Second Sworn Statement of Dr. James Gundlach and related exhibits, and for entry of an Order granting him access to additional records necessary to complete supplementation of the record in his pending jury challenge."

The hearing will basically be a housekeeping issue to get matters to a stage where Judge Coody can make a recommendation to Chief District Judge Mark Fuller on the issue.  Issues of this nature are often handled prior to jury selection, but that was not done in this case and it appers the issue may have been more difficult than some expected.  The jury selection process in the Middle District of Alabama has been questioned for a number of years.

In their Amended Second Motion to Supplement Record in Jury Challenge and Request for Additional Data, Scrushy's lawyers say Gundlach's analysis "highlights two significant opinions and their factual basis which are relevant to this Court's ultimate decision as to Defendant's jury challenge, particularly relating to the 2005 Qualified Jury Wheel."

Attorneys call it a "significant blunder" that there was a failure to empty a prior jury wheel, the 2001 wheel, and the subsequent use of some of those jurors in the 2005 Master Jury Wheel from which Siegelman/Scrushy jurors were subsequently selected.  Attorneys say the problem is that Dr. Gundlach found the jurors that came from the 2001 group "were overwhelmingly white in proportion to the racial composition of the 2005 QJW (only one of the ten carry-over jurors was African American).  As a consequence, even though small in number, their improper inclusion in pools selected from the 2005 QJW had the inevitable effect of decreasing the representation of African-Americans on these jury pools"  as well as "compromised the random selection of every pool in which they were selected, including the Siegelman/Scrushy jury pool."

The motion asks for "The participant history file selected for all transactions occurring after August 24, 2005 NOT restricting inclusion based on Participant Number."

The filing says the problems are ongoing and that there is a "continued pattern of under representation of African-Americans on the two most recent pools, including the pool drawn for Defendant's trial...Both of those pools demonstrate an absolute disparity of more than 10% as to the under representation of African-Americans.."

Gundlach says in his May 7, 2006 Second Sworn Statement that the disparity is "greater than 10% when compared to the composition of the community of 30.466% as determined by Census data."

A similar challenge in the Leon Carmichael case was denied by Judge Thompson, who did ask for an audit of the jury selection system.  Thompson also said however,"it should not be overlooked that they have identified several undisputed violations of the JSSA and the Middle District's jury plan.  It is also apparent that the defendants are narrowly shy of having satisfied the second Duren factor of a greater-than 10% absolute racial disparity.  The court therefore also adopts the magistrate judge's caution that there is 'a compelling need for the Middle District of Alabama to examine, and undertake to remedy, administrative inaction and operational deficiencies which may undermine the integrity of, and public confidence in, the District's Jury Plan..."

In their Apr. 2, 2006 Fifth Motion for Discovery of Jury Records and Motion for Immediate Compulsion Order or Order to Show Cause, attorneys relate that they had learned that "records regarding the approximately 40,000 questionnaires that were sent out in March of 2005 to build the 2005 Qualified Jury Wheel had not been retained on the Jury Management System (JMS) computer located in the Clerk's Office in Montgomery.  They did not know why or how this occurred.  Ms. Hackett advised that the only record as to the 40,000 questionnaires was a copy of the file that was sent to the third party private contractor which was hired to mail out the questionnaires.  As of the date of that phone call, Ms. Hackett advised that ACS was trying to find a way to "take that file and load it back into the system."  Ms. Hackett indicated that as soon as that was done, she would provide the data to undersigned counsel."