Another Purported E-mail Arrives in Scrushy Attorneys' Mailboxes; Supplemental Motion Filed

MONTGOMERY, Ala., Feb.  26, 2007 --  About right now Chief District Judge Mark Fuller is probably reaching for his Advil bottle.  The e-mail fairy has struck again sending another purported e-mail to attorneys for businessman Richard Scrushy who then filed another supplemental motion related to their previous request on Dec. 28 for Judge Fuller to reconsider his order denying the defendants a new trial.  The motion asks in the alternative for a new trial "based on newly discovered evidence," which are copies of another purported e-mail received by defense attorneys on February 21.

The purported e-mail is again from a G-Mail account from Juror C to Juror B and this time was sent to attorneys Terry Butts and Fred Helmsing.  Although attorneys are being mindful of Judge Fuller's request to keep the names, even at this stage of things, out of their filings, it is clear the jurors involved again are allegedly Katie Langer and jury foreman Sam Hendrix, both of whom have in the distant past talked to the media.

Attorneys (the predominant author of the document is Jim Jenkins) are clear to state, as they have repeatedly, that the e-mails must be authenticated for any of the evidence to be valid.

The purported e-mail is dated June 25, 2006 at 10:47 p.m.( four days prior to the June 29, 2006 verdict) and the copies were postmarked according to the envelope from Montgomery, Alabama, on February 20, 2007.

Great info 4 r friends.

                        % of prosecution increases dramatically.

                        Could not find that when I surfed it.

                        Gov/Pastor GONE....(EXHIBIT 26.)

Attorneys say pursuant to the Court's previous orders they have "not taken any steps to authenticate this latest e-mail."

The defense is not allowed pursuant to Judge Fuller's earlier admonitions to reveal any juror information to anyone, making it all but impossible for them to investigate the matter at hand, although the instructions don't seem to preclude the investigation into who is sending the attorneys the e-mails.  That is a subject area no one on either side seems to really want to discuss, so we really do not know if anyone from either the prosecution or defense has looked into the e-mail fairy.

If authentic, a comparison of the allegedly copied e-mails that have been submitted seems to indicate the person sending them may have some connection in some way to one specific juror (I'll let you draw your own conclusion as to which one).  If they are not authentic, these copies also bear resemblance, just an uneducated guess, to a political dirty tricks or black ops campaign.

Attorneys say there is need for timely action "due to the continued and ever-increasing risk of destruction of this evidence due to passage of time."

Additionally, attorneys ask for an evidentiary hearing if the court continues to deny a new trial.  If there is a hearing, the defense continues to ask for the "necessary computers, ISP and network evidence...along with the jurors implicated in the e-mails" to be made available.

The filing says again with the cautionary statement, "if authenticated," that the two jurors "accessed extrinsic evidence on the Internet and that the extrinsic evidence was prejudicial to both Defendant Scrushy and co-Defendant Siegelman. In this most recent e-mail, Juror C tells Juror B: "Great info 4 r friends....Could not find that when I surfed it." (EXHIBIT 26.) Especially when read in the context of an e-mail, the word "surfed" commonly refers to the activity of accessing the Internet to look for information."

The court document says the most recent delivery, taken along with two prior e-mails, "appears to refer to the content of information that Juror B has either sent or described to Juror C, which Juror C had not previously located on the Internet, but which Juror C believes will be "[g]reat info 4 our friends."

"The content of this e-mail is far more than a "colorable showing" that these two jurors were accessing extrinsic information on the Internet, considering it, and apparently providing it to other jurors. Moreover, the prejudicial nature of the extrinsic evidence is apparent  in the e-mail's references to "% of prosecution increases dramatically," and Gov/Pastor GONE...." (EXHIBIT 26.)"

The attorneys argue taken in context

"the most recent e-mail is even clearer evidence of exposure to extrinsic evidence obtained from the Internet. This most recent e-mail, EXHIBIT 26, was sent by Juror C to Juror B 38 minutes after the e-mail in EXHIBIT 23 was sent from Juror B to Juror C.  In the first of the three e-mails between these jurors that are now available Juror B tells Juror C at 10:09 p.m.: "did not understand ur thoughts on statue but received links." (EXHIBIT 23.)  In the next e-mail, sent at 10:41 p.m., Juror B tells Juror C:  "articles u sent were outstanding!" (EXHIBIT 24.)  In the most recently-received e-mail, sent at 10:47, Juror C tells Juror B "Great info 4 r friends. % of prosecution increases dramatically. Could not find that one when I surfed it. Gov/Pastor GONE...." (EXHIBIT 26.)"

The filing goes on to say the e-mails taken together show the jurors were not only surfing the Internet but "apparently either passing it on to other jurors or using it in their out-of-court deliberations with other jurors to convince them to return guilty verdicts."

The lawyers say the newest documents further corroborate another juror's affidavits and testimony of four jurors during a November 17, 2006 hearing "which tended to indicate that Jurors 40 and 7 accessed and discussed information from the Internet in addition to a copy of the unredacted indictment and information on the role of the foreperson, which this Court previously discounted."

Attorneys for Mr. Scrushy say the latest document, if authenticated, is "additional evidence of three types of jury misconduct:"

  • First, it is additional evidence of the jury's exposure to extrinsic evidence, and the prejudicial nature of that evidence.
  • Second, it is additional evidence of activities by two jurors, clearly deliberative in nature, outside the presence of other jurors, and contrary to the instructions of this Court forbidding deliberations unless all twelve jurors were present.
  • Third, this newest e-mail is additional evidence of an orchestrated effort by Jurors B and C, beginning no later than May 29, 2006, to convince other jurors to convict Defendants Scrushy and Siegelman, and very possibly using that extrinsic evidence obtained from the Internet to do so.

Attorneys say the Court must take action in "regard to the allegations of jury misconduct in this case.  Neither this Court nor Defendant Scrushy had these additional three e-mails prior to this Court's December 13, 2006 Order denying a new trial based on jury misconduct.  These three new e-mails, if authenticated, demonstrate beyond any debate that this jury was tainted by exposure to extrinsic evidence and other misconduct."  (Note:  the other two e-mails making three in total were part of the Defendant's Renewed Motion for New Trial).

The attorneys say based on the "colorable showing of exposure to extrinsic evidence"  the Court has to investigate and determine the underlying facts.

It appears, based on a novice's reading of things, that attorneys for Mr. Scrushy are adamant that Judge Fuller either look into the e-mail issue or clearly and once-and-for- all unequivocally state that he is not going there and his reasons for that decision.

They reiterate the most crucial determination is the "authenticity of these e-mails."

Defendants say they have asked the Court repeatedly for

  • "permission to investigate,"
  • "legal procedures to obtain documents, evidence and information that would prove or disprove authenticity"
  • "and even the most benign step of all - the simple preservation of evidence subject to destruction."

The reluctance of Judge Fuller to preserve evidence has perplexed several attorneys I have talked to outside the case.  However, others argue it would have been too intrusive into the privacy of the jurors involved.

"As of the date of this filing, this Court has refused each and every request to authenticate the copies of the apparent e-mails.  At the November 17, 2006 evidentiary hearing on Defendant's original motion for new trial, this Court, despite a specific request to do so, did not even ask a single juror to admit or deny that the e-mails in question were written or received by them."

Saying until the issue is resolved, "no one will know whether this Court and the parties to this action are being subjected to a continued hoax by an individual or individuals who should be identified and prosecuted or whether the jury verdicts in this case are irretrievably tainted by the jury's exposure to extrinsic evidence and other jury misconduct.  The only path to finality as to this issue, and in this case, must eventually travel through a full and fair process to determine the authenticity of these e-mails.  Defendant respectfully urges this Court to do so immediately and aggressively, since the passage of time only makes this inevitable determination more difficult."

Attorneys again ask the judge to reconsider his previous order denying a new trial and "conduct further hearings to consider evidence relating to the authenticity of these e-mails or, in the alternative, this Court should hold a hearing on Defendant's motion for new which time these additional e-mails and additional computer-related evidence necessary to confirm or refute the authenticity of these e-mails, along with appropriate further inquiry of the involved jurors, can be considered."

"Defendant respectfully submits that he is entitled to a new trial based on the violation of his Sixth Amendment right to a fair trial before an impartial jury."

The filing contends that while the Court "has wide discretion in how it chooses to investigate this exposure to extrinsic evidence...this Court does not have any discretion in its decision on whether to investigate, as the Eleventh Circuit has unambiguously held that "the court must investigate the asserted impropriety."  United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir. 1987) (emphasis added).

The attorneys claim the "government seeks to lead this Court into clear error by its suggestion that there is no need to investigate these new e-mails...the Government is encouraging this Court to sweep this issue concerning the additional e-mails under the rug without the investigation clearly mandated by Eleventh Circuit and Supreme Court authority, based on the Government's assertion that Defendant has been unable to authenticate the e-mails which have been provided to him in a series of anonymous mailings, based solely on the Government's continuing attack on the "purported" and "anonymous and incredible" e-mails.   The Government also tells this Court that: "Defendants' motions do not justify a new trial or any other action by the Court because of their most unreliable and inherently discreditable foundation." (Id. at 8.)"

"First, these are not "anonymous" e-mails. The copies of the newest e-mails have been provided anonymously, but each and every one of them bears what appears to be an e-mail address and name that is associated with Jurors B and C.  There are obvious, and reasonable, steps that can be taken to obtain the documents and evidence necessary to determine whether or not these e-mails are authentic.  Defendant has repeatedly asked that such a step be authorized or taken by this Court. 

The Government has repeatedly fought against this simple step of obtaining the available evidence and this Court has repeatedly refused to do so.  Defendant's inability to authenticate these e-mails is a product of the Government's opposition and this Court's refusal to permit such an investigation. The inability of Defendant to demonstrate the authenticity of the e-mails in the absence of any opportunity to do so cannot be a basis for a determination that the e-mails are not reliable, and therefore do not require investigation.

Attorneys say the copies of the emails they continue to receive are "either copies of real e-mails or they are clever forgeries of what look like real e-mails between jurors in this case."

"There are computers, computer records and custodial witnesses that should be able to prove, once and for all, whether or not these e-mails are authentic.  Until this Court takes that step, the central question relating to these allegations of misconduct will never be answered."

The Scrushy attorneys say there are a number of methods that can be employed to get the evidence needed to determine whether the evidence is real or fake "that will not invade the privacy of the jurors and will not result in any embarrassment or public revelation of their private communications. Indeed, as the copies of what appear to be the jurors' e-mails continue to arrive in such a fashion, it would appear that the jurors themselves have a legitimate and compelling interest in having these allegations dispelled if they are based on forged documents.

The only way to do that fully and fairly and-perhaps most importantly-with finality, is for this Court to obtain the necessary evidence and records and make a determination in an appropriate proceeding as to the authenticity of the e-mails. Contrary to the Government's suggestion that finality can be obtained by simply denying Defendant's motion and proceeding to sentencing, this issue will not go away so long as Defendant has a right to appeal to higher courts and so long as the anonymous letters containing what appear to be copies of jurors' e-mails continue to arrive in the mail."

Citing a case that appears to be one of their favorites, the Scrushy team says,"pursuant to the Supreme Court's mandate in Remmer v. United States, 350 U.S. 377, 379, 76 S.Ct. 425 (1956), that investigation should ensure that "the entire picture should be explored."  It would appear that the most logical way to proceed would be for this Court to authorize the collection and examination of evidence necessary to determine the authenticity of the e-mails and hold an appropriate hearing to make that determination.

Once that determination is made, the Court would be in a good position to determine if further hearings, including a hearing at which the jurors could be examined further, were necessary.  How this Court proceeds is, of course, within the Court's broad discretion.  Defendant respectfully submits, however, that this Court has a nondiscretionary duty to investigate, and ultimately a duty to provide access to the truth as to this issue. Then, and only then, will this Court be in a position to make a final and fair determination of whether or not Defendant was deprived of his Sixth Amendment right to a fair trial before an impartial jury that was not tainted by consideration of extrinsic evidence or other misconduct."

Defendants ask the Court to enter an order:

  • (1) supplementing the record as to Defendant's new trial motion;
  • (2) to obtain the previously-described computers and records;
  • (3) to conduct a further evidentiary hearing pursuant to either a reconsideration of this Court's previously-entered Order denying Defendant's motion for new trial or Rule 33(b)(1); and
  • (4) upon good cause shown, granting Defendant a new trial and such other and further relief as this Court may deem just and proper.

Chief District Judge Mark Fuller has yet to rule on a previous motion to reconsider his earlier order denying a new trial in the case. Magistrate Judge Charles Coody has also yet to issue his recommendation to Judge Fuller on the jury composition challenge issue.

Scrushy and Siegelman were convicted in June 2006 on charges related to bribery and conspiracy.

As is becoming commonplace, neither attorneys for the defense nor the government wished to discuss this issue further with  I wonder what I've gone and done now? In fairness, attorneys for Richard Scrushy did put out a press release (which as a rule,  in most cases no matter who is issuing them and except on rare occasions, I do not use related to court filings) and the government recently has preferred to respond through court documents.

Special note to the e-mail fairy:  Whoever you are.  If you read this.  You are playing with people's lives - either those of the defendants or those of the jurors allegedly  involved or perhaps even both.  It's time to come clean and quit playing with the justice system.  If truth is on your side, you will eventually be vindicated.  If it is not, you deserve your punishment - and it should be harsh.

Reported by:  Helen Hammons