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MONTGOMERY, Ala., Feb. 13, 2007(Updated Feb 15) -- Departing from their usual custom of filing documents late on the day of the court's deadline, attorneys for Richard Scrushy filed the final motions requested by Magistrate Judge Charles Coody a day prior to his February 14 time limit and the government took advantage of the early filing by responding in their filing close to 6 p.m. on the 14th.
Judge Coody has to make a recommendation to Chief District Judge Mark Fuller on the jury composition challenge related to the racial makeup of jury pools in the Middle District of Alabama.
The Scrushy motions appear to see the handwriting on the wall and be a formality prior to an eventual appeal to the 11th Circuit. An appeal cannot take place until after defendants Don Siegelman and Richard Scrushy are sentenced, which appears to still be at a minimum at least a couple of months away. But a determination on the jury challenge that has been stalled since before the corruption trial began seems to be at last moving forward again.
In their motion regarding the additional data that had been long ago requested from the clerk's office, the Scrushy jury challenge expert Dr. James Gundlach is said to have analyzed the data provided and agrees that the 2005 Qualified Jury Wheel only contained activity for the 10 previously-identified jurors from the 2001 Qualified Jury Wheel. "In other words, the data set did not reveal any "bleed over" jurors other than the ten previously identified...." Attorney Jim Jenkins had argued during last week's hearing that he believed the possibility existed there were more "bleed over" jurors. Judge Coody had reminded attorneys that Judge Thompson called the number of "bleed over" jurors "minuscule."
Judge Coody said in last week's hearing that "much of what this court is going to have to decide has been considered by Judge Boyd and Thompson in the Carmichael case," which may or may not indicate the judge's thought process on this issue. The government picked up that mantra and quoted from Judge Thompson in their filing.
"[B]ecause the number of jurors improperly transferred was minuscule, and because their presence in the qualified wheel did not significantly affect the random selection of jurors for jury pools, the court finds that the error falls squarely within the category of violations that do not substantially violate the JSSA. Id."
The government further states, "Like in Carmichael, only a "minuscule" number of 2001 QJW members (i.e., ten) was present on the 2005 QJW. Defendant Scrushy has not produced any evidence to support his claim that the jury administrator did not empty the 2001 QJW as required by the JSSA and Middle District Plan. He, therefore, once again cannot carry his burden of proof. Like in Carmichael, the presence of "bleedover jurors" on the 2005 QJW was a result of a mere oversight, constitutes only a technical violation of the JSSA and warrants no post-conviction relief."
Scrushy's second motion stated, "Defendant Scrushy has no further factual arguments...Defendant Scrushy relies on the contents of his previous submissions, including the supporting affidavits of Dr. James H. Gundlach...and arguments previously submitted in this Court. Defendant respectfully submits that this Court has heard sufficient testimony and argument to ferret out what information is both relevant and admissible, and to weigh the merits of the submissions of the experts of both sides on the issues addressed in Defendant's motions to supplement."
However, taking a page out of Judge Coody's book, the defense attorneys go on to challenge government expert Stephen A. Elmore over several paragraphs of his affidavit.
Judge Coody had stated in last week's proceedings that defense expert Dr. James H. Gundlach was "fond of making conclusions, to be perfectly blunt, I think he is unqualified to make...."
The judge went on to cite Gundlach's comment about the "clerk's deferral policy as being liberal" and Gundlach's "determination that it violates the JSSA" He said Gundlach is not a lawyer and his determination "is something he is significantly unqualified to assess."
Defense attorneys argue similarly that Elmore's "legal opinion...that the JSSA and the Middle District Jury Plan have not been substantially violated," is a legal opinion of Mr. Elmore, and he is not qualified to render an opinion on a question of law."
The government says the Scrushy arguments are faulty because, they "ignore the similar opinions given by his own expert who has repeatedly opined on whether certain actions have violated the JSSA and Middle District Jury Plan, including whether the absolute disparity of the 2001 and 2005 QJWs and individual pools drawn from those wheels has exceeded 10% in the representation of African-Americans... To the extent Defendant Scrushy is asking this Court to disregard the government's expert's "legal opinions," he is also inviting this Court to exclude significant portions of Dr. Gundlach's testimony and affidavits, especially those portions where Dr. Gundlach gives his personal opinions not based on fact or law (e.g., the jury administrator's "discretionary decision" to alter the percentage of deferred jurors drawn from the DMP)."
The prosecutors say that in accordance with the Federal Rules of Evidence (704), Mr. Elmore's commentary is "not objectionable because it embraces an ultimate issue to be decided by the trier of fact...The government's expert qua expert is permitted to opine on whether certain circumstances constitute a violation of the JSSA and Middle District Jury Plan...The upshot of expert testimony is that it is admissible to the extent it 'assist[s] the trier of fact to understand the evidence or to determine a fact in issue,..'"
The Scrushy attorneys go on to question Mr. Elmore's inclusion of data related to "the racial composition of 28 civil jury pools" saying "all of the evidence submitted to this Court in the evidentiary hearing on the jury challenge pertained to district-wide criminal jury pools" and further arguing that this portion of Elmore's affidavit should not be allowed "without a further evidentiary hearing" because it "would deny Defendant's right to cross-examine Mr. Elmore on this evidence."
Assistant U.S. Attorney J.B. Perrine had made a similar argument concerning cross-examination of Dr. Gundlach on his second affidavit in last week's conference call. The judge admitted the affidavit anyway.
Mr. Scrushy's attorney's proceed to argue that five pages of Mr. Elmore's testimony are "nothing more than Mr. Elmore's effort to recast and reargue the testimony relating to the computation of the racial composition of the district wide jury pools, which he gave before the Court...Mr. Elmore's testimony at that hearing is what it is, and his after-the-fact attempt to retract and recast his sworn testimony in an affidavit which is not subject to cross-examination should be rejected by this Court." They also argue Elmore is not qualified as a "statistician by this Court."
The government responded by saying Dr. Gundlach's analysis was "fundamentally flawed" because the race of the "racially non-identifying jurors" cannot be determined. "The law is clear that the defendants bear the burden of establishing a prima-facie case, Duren[ v. Missouri, 439 U.S. 357, 364 (1979)], and without clarification of the racial makeup of the non-identifying jurors, the defendants cannot meet their burden."
As to the cross-examination issue: "to the extent Defendant Scrushy asks this Court to disregard the government's expert's statement because of the absence of cross-examination, he is also arguing against the admissibility of Dr. Gundlach's statements which have never been subjected to the crucible of cross-examination."
In conclusion the government says,
"Defendant Scrushy's expert's latest statement provides further evidence why this Court should deny Defendants' requests for relief based on challenges to the jury selection system for the Middle District of Alabama. In his supplemental affidavit, Dr. Gundlach continues to propagate his fatally flawed analysis to determine absolute disparity, makes personal opinions not based on fact or law, and misconstrues the cause and effect of the presence of ten "bleed-over jurors" in the 2005 QJW. Dr. Gundlach's most recent submission, therefore, advances not Defendants' jury selection challenges. Consequently, the United States respectfully asks this Court to deny Defendants' challenges and further move this case to sentencing."
The ball is now in Judge Coody's court. Since the judge has said much of what he has to take up has already been considered by Judges Boyd and Thompson in the Carmichael case, it may not take long for a recommendation to find its way to Judge Fuller's desk. Judge Fuller has yet to rule on a motion filed by Scrushy attorneys requesting he reconsider his order denying Scrushy a new trial.
Another item yet to surface is the presentence investigation report, which has to be given to the parties at least 35 days prior to sentencing. Both defendants and their attorneys have been in continuous contact with probation as a normal course of events and it is unclear why these reports have yet to be completed, but it could just be a function of an overburdened court system. The reports themselves are not made public.
Defense attorneys, as is their duty, will play every hand allowed by law to keep their clients out of prison as long as possible. Prosecutors will continue to mention to the judge it's time to move on to sentencing.
And yet another question -- Will the person toying with the justice system related to supposed juror emails resurface with yet more mailings to attorneys and the media?