Businessman Richard Scrushy may be headed to home confinement. There was a petition for a summons from his pobation officer filed with the court that says Scrushy appears to have violated the instructions of the probation officer on a recent trip to Disney World. The government has filed a motion asking for revocationn or modification of conditions of release.More >>
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MONTGOMERY, Ala., April 2, 1007 -- Are Richard Scrushy's current legal problems a self-inflicted, non-mortal wound? Prosecutors would argue Scrushy's recent troubles brought about by an alleged violation of his terms of release on a recent family trip to Disney World are, as usual, self-inflicted.
But attorneys for the formerly high-flying businessman argue in a court document that the government's theory about Scrushy testing the waters for an eventual flee attempt are all wet and urges the court to "deny the Government's Motion for Revocation of Bond as well the Probation Office's Petition to Modify Bond."
Whatever the outcome of this latest twist in Scrushy's road to sentencing following conviction last year on bribery, conspiracy and mail-fraud charges, it is a non-mortal, but potentially worrisome, wound for the man who seems to have more lives than a cat if Magistrate Judge Charles Coody finds Scrushy did a no-no.
In the filing made in federal court late Monday in response to probation office and prosecutor allegations that Scrushy left his approved hotel during his court approved trip to Disney World in March and traveled to south Florida, attorneys, while not denying Scrushy made the south Florida trip, argue it was miscommunication and that Scrushy is not a flight risk:
"According to the Government, there is no condition or combination of conditions of release that will assure that Defendant is not a risk of flight due to a single miscommunication and/or an honest mistake made in the four years Richard Scrushy has been reporting to the Pretrial Services...
The Government's imagined intent for a man who requested and received permission to travel and returned to the district at the exact time he was supposed to is not supported by the facts. Additionally, going forward, similar situations will be avoided by the solution already instituted by Pretrial Services which requires that all future requests and permission to travel be reduced to writing so there can be no misunderstanding or miscommunication...
In all, Defendant Scrushy has been under conditions of release and reporting to Pretrial Services for more than three years. In that time, he has abided by every condition imposed upon him by the Court and by his Pretrial Services officer and appeared at every required court appearance and meeting with his Pretrial Services officer until this one mistake.
It also is telling that whenever Defendant Scrushy has wished to travel outside the Northern and Middle Districts of Alabama, he has requested permission from his Pretrial Services officer to make that trip. If Defendant had been "testing the ability of the United States to monitor his activities," as the Government claims with no evidence, he would not have alerted his Pretrial Services officer by requesting permission to go to Florida, he would not have traveled openly as he did here, and he certainly would not have traveled to meet his attorney, an officer of the Court. Finally, when called in to discuss what had occurred, Defendant certainly would not have admitted every aspect of his travels.
Defendant Scrushy is no more a risk of flight now than he has been since the indictment was unsealed in this case. He simply does not intend to flee the jurisdiction. His family and his ties are in Alabama. He has no passport. Moreover, Defendant Scrushy intends to follow the Court's orders scrupulously and to provide and receive written communications from Pretrial Services in order to fully understand exactly what he may and may not do, rather than rely only upon oral communication."
The alleged violation is a sensitive issue - if Scrushy is found to be in violation, it most likely will bolster prosecution arguments that Scrushy is a flight risk and could definitely have an impact on his ability to get an appeal bond following sentencing. The probation office did not ask that a warrant be issued for Scrushy and the petition said that Scrushy had "generally been in compliance" with the conditions of his release prior to and following his conviction.
It is possible, because Scrushy is kind of working with two districts in the federal court system, that there may have been some miscommunication or noncommunication between the Northern and Middle Districts of Alabama. Anytime government bureaucracies are involved this possibility exists.
Typically alleged violators are interviewed by the probation officer upon knowledge being gained that a violation may have occurred. There is no way to know exactly what Scrushy said in response to any query made to him by the probation officer, although the defense filing says he "admitted every aspect of his travels." At the hearing this statement or statements could be a factor.
In a followup call with Cumberland School of Law Dean John Carroll, I was reminded that Monday's hearing is very different from a trial. "It's a very informal proceeding," says the judge. "The court is not bound by the Rules of Evidence. There could be proffers from both sides - here's what the evidence would show. Witnesses could provide affidavits. It's not like a trial."
The filing does not say which attorney Scrushy went to meet in Miami, although one guess as to why Scrushy may have wanted to go to Miami was to possibly meet with attorney Donald Watkins. It is important to note this is only one of the many theories floating around and has not been established. Carroll says if Scrushy did meet with Watkins it "wouldn't appear he could not say anything to help or hurt Richard Scrushy" because the defense has already acknowledged Scrushy went to Miami.
Prosecutors argued last week that Scrushy was testing the waters for a future attempt to flee during his recent trip.
Magistrate Judge Charles Coody has ordered a hearing for Monday, April 9 on the issue. The hearing is scheduled to begin at 10 a.m.
According to Carroll, it is not impossible that an agreement could be worked out ahead of time and a hearing not take place. For that to happen Scrushy would have to agree to stringent terms which satisfy the probation office and the government. It is unlikely that this scenario will play out.
At the hearing Carroll says it boils down to a "factual question focusing on what did he do?" Carroll says it's a very simple issue "he did, or he didn't." If the terms of his trip were not in writing, as indicated by the defense's filings, there could be a he said, she said kind of issue before the judge. Judge Coody will most likely hear testimony from the probation officer, Tamara Martin and possibly also other witnesses presented by the government but that is not necessary. Martin has a reputation as a fair probation officer.
There is a remote possibility the judge will even hear from Scrushy himself as well as any other witnesses the defense may have also. "The Court simply cannot let a violation of an order go," says Carroll.
Carroll says the court will have to determine if this was "purely a technical violation" or if Scrushy was "flaunting" and "disregarding" the orders of the court. "How much does this indicate he is not going to follow the orders of the court?" is the question.
The former magistrate says these hearings are not at all abnormal. He says the difference for the defendant post-conviction is now the burden of proof falls on Richard Scrushy "to prove he's not a flight risk and not a danger to the community," says Carroll. The motion does not go into extreme detail as to why Scrushy is not a flight risk. Those arguments apparently will be made if the hearing is held as currently scheduled, but Carroll says they do not necessarily have to be detailed. "It really all depends on what the judge determines the facts to be. The judge can ask for harder evidence if he thinks it's necessary." Carroll reminds me again that people need to remember this is not a formal trial. It could also be over very quickly.
Judge Coody can leave the terms of release as they are, modify the conditions of release (most likely along the lines of the request from probation), or revoke the conditions of release and put Scrushy in jail pending sentencing.
The probation officer is asking the court to place Mr. Scrushy on home confinement:
"The defendant shall participate in the Home Confinement Program to begin at a time and residence designated by the probation officer. During this time, the defendant will remain at his place of residence except for employment and other activities approved in advance by the probation officer. The defendant will maintain a telephone at his residence, without a modem, "call forwarding", "Caller ID", "call waiting", or portable cordless telephones. At the direction of the probation officer, the defendant shall wear an electronic monitoring device and follow electronic monitoring procedures specified by the probation officer. The electronic monitoring may include an active GPS device in order to monitor your compliance. The defendant shall pay the cost of electronic monitoring as directed by the probation officer."
Judge Coody, as of this writing, is also yet to rule on a jury composition challenge in the case and Chief District Judge Mark Fuller has yet to rule on a motion to reconsider his earlier motion denying Mr. Scrushy a new trial. The e-mail fairy has been quiet as well.