UPDATED NOTE: My wording in a previous note which appeared on this page appeared to indicate that Prosecutor Louis Franklin was speaking publicly about the issues raised in court documents which were momentarily publically available but which are now sealed by the judge. I want to make it perfectly clear this was based only on my reading of the article and before having spoken to Mr. Franklin about the article itself. Mr. Franklin did not discuss the specifics of the motion under seal and had told me Friday he did not comment on documents under seal. He said Monday he had been called by Mr. Beyerle and was asked a general question and spoke only in generalities. In my past dealings with Mr. Franklin he has routinely not discussed sealed documents. To read Dana Beyerle's story click here.
MONTGOMERY, Ala., April 20, 2007 -- Federal judges don't talk to the media about cases before them, but Chief District Judge Mark Fuller spoke out late Friday in one of the ways federal judges do talk. He issued an order.
After seeing documents remain under seal that attorney Jim Parkman had told me on Thursday were not meant to be under seal and not being able to reach Mr. Parkman, who had said he was going to find out what had happened, I left a message Friday afternoon for the Clerk of the Court that handles filings for Judge Fuller inquiring as to exactly what was going on with the documents. I do not know if that message had anything to do with the end of the business day order by the judge or exactly what prompted him to apparently seek to set the record straight as to what had happened involving the documents.
The judge's order should help clear up the confusion, although it is still not completely clear why the Motion for Leave to File certain documents under seal is not one of the documents the judge says may eventually be publicly available. (Due to the placing of the footnote it is not absolutely clear if this document also falls under the E-Government Act.)
In a phone interview on Thursday, Parkman told me specifically that the Motion for Leave to File, and subsequently in the conversation, the motion related to a jurisdictional issue, and the document responding to an appeal by the government of Judge Coody's ruling on the bond revocation issue were not meant to be filed under seal.
"To my knowledge they (the bond revocation along with another motion) were not to be filed under seal. I do not know why, but I will find out because those were not my wishes at all. Although I'd rather they be too cautious than not cautious enough. I signed some documents, left someone in charge, and thought it was done the right way. Also, the clerk could have just thought since they were done at the same time they were supposed to be all under seal. Because certainly we did file a response...and certainly had no reason to file that under seal." Parkman did say if the judge sealed everything he would "let it be."
According to Judge Fuller, Mr. Parkman did ask for all the documents to be placed under seal. "On April 18, 2007, Defendant Richard M. Scrushy ("Scrushy") filed several documents with this Court. (Doc. #548, 550, 551, 552, & 553). James W. Parkman, III, one of Scrushy's attorneys, certified that he was filing each of the documents 'under seal.'"
The judge in a footnote explains the court knew this because "This certification appears in the certificate of service at the end of each document."
Looking at what both Parkman and the judge are saying, it appears wording in the certificates may not have been changed to match each of the documents filed. Parkman then signed the certificates without carefully reading each one to make sure they reflected his intent. No matter what actually happened, ultimately the responsibility falls on the shoulders of any attorney who puts his name on a court document.
Judge Fuller acknowledges that there was not a separate leave for motion to file the jurisdictional motion and the bond revocation document under seal, but reiterates that "because Mr. Parkman certified that each of these documents (Doc. #548, 550, 551, 552, & 553) was being filed under seal, the Clerk of the Court placed the documents under seal."
The judge clearly intends that, at least for now, all documents related to the matter of his recusal remain under seal. Fuller says related to #550 - "Motion to Recuse and Motion for Vacatur or New Trial Based on Newly Discovered Evidence" and #551 - "Brief in Support of Motion to Recuse and Motion for Vacatur or New Trial Based on Newly Discovered Evidence as to Richard Scrushy" the following in a footnote:
The E-Government Act is a pretty big document but since the documents relate at a minimum to the judge the issue could be concerns about the privacy of certain information or it could be something much more technical. We simply do not know for sure. But it is clear the documents are of a sensitive nature.
Judge Fuller is giving Mr. Parkman the opportunity to clear up any ambiguity concerning the documents related to the jurisdictional issue and the bond revocation issue:
We'll apparently know early next week what jurisdictional issues Mr. Parkman is raising in this case. It is clear Mr. Parkman, in apparent consultation with Donald Watkins, "If motions were filed to make sure that I am on the right page I would run them by Donald," is driving the Scrushy train in a different direction. We'll know for sure when the jurisdictional motion becomes a matter of public record.
Scrushy, Parkman, and Watkins - when these three team up you know one thing for sure, expect the unexpected. Whether these three engineers of the current Scrushy train keep the train on the tracks or drive it right over the edge of the cliff will remain to be seen. Stay tuned.