MONTGOMERY, Ala., April 25, 2007 -- Chief District Judge Mark Fuller has unsealed a motion from Scrushy attorney Jim Parkman which questions the jurisdiction of federal district courts and asks that Scrushy's case be dismissed.
In what looks like a chapter out of the theories of Paul Andrew Mitchell who calls himself a "Private Attorney General" and rants regularly against the federal court system stating " the main culprit has now been identified as the Act of June 25, 1948, in which Congress radically re-organized the entire federal court system," the brief filed by attorney Jim Parkman argues the following:
"The district court got its jurisdiction over Defendant Scrushy from 18. U.S.C. Subsection 3231, which purportedly gives the "district courts of the United States...original jurisdiction...of all offenses against the laws of the United States...
A court "has jurisdiction to render a particular judgment only when the offense charges is within the class of offenses placed by the law under its jurisdiction," Bowen, 306 U.S. at 24. If it is found that the court lacked jurisdiction to try Defendant Scrushy, the judgment is void because the court lacked jurisdiction, the defendant must be discharged. Ex Parte Yarbrough, 110 U.S. 651, 654 (1884)."
Parkman argues that the underlying Congressional legislation from which the district courts get their authority under Title 18 (1) failed to pass one or both Houses of Congress and/or (2)that the legislative process continued after Congress adjourned sine die by legislative officers acting pursuant to H.Res. 2190, all of which violated Article I, Section 5, Clause 1, Article I, Section 7, Clause 2, and/or Article I, Section 7, Clause 3 of the Constitution and any of which rendered Public Law 80-772 unconstitutional and void ab initio. Therefore, because "the offense[s] charged...[were]placed by the law under [the] jurisdiction," of the district court pursuant to 18 U.S.C. SS3231 of Public Law 80-772, which is unconstitutional and "void, the court was without jurisdiction and Defendant Scrushy must be discharged." Yarbrough 110 U.S. at 654."
"...Since Public Law 80-772 has never been enacted as required by...the Constitution, thereof, rendering void ab initio the jurisdiction by which the court acted to convict and enter judgement, the district court's actions were ultra vires....and coram non judice..." The Latin simply means the court acted beyond its power and in clear absence of all jurisdiction."
Dean of the Cumberland School of Law John Carroll says it's impossible to talk specifics because he had not read Mr. Parkman's argument but knew what it was about in general and said, "It's a very interesting argument, but it will run into the practicalities of life in basically asking the courts to overturn almost 60 years of convictions. It would have an effect of overturning all convictions going back to 1948...the problem is you're launching an attack on the fundamental foundations of the justice system."
There has also been a chess match going on between prosecution and defense attorneys over court filings related to a motion asking Chief District Judge Mark Fuller to recuse himself and apparently containing information related to assistant U.S. Attorney Steve Feaga. The original motion remains under seal although Parkman yesterday requested the seal be lifted after the government filed their response to the motion in full public view and not under seal.
In asking the document come out from under seal Parkman said yesterday in the filing, "On April 23, 2007 the government responded to the defendant's Motion for Recusal without requesting said response to be filed under seal."
Parkman also says "On or about April 20, 2007 the prosecutor in this case made comments to the media regarding the sealed documents and the contents of same." Acting U.S. Attorney, in the Scrushy case, Louis Franklin vehemently denies he ever made any comments about the sealed document but was "asked general questions and gave general answers." (Read Dana Beyerle's story here.)
Parkman concludes, "In the interest of justice and full candor for all parties, the defendant's Motion for Recusal, Brief in Support Thereof and the Exhibits attached thereto, should be unsealed."
The court clerk told me the government response document did not have to be sealed because "it's not sensitive information and the government didn't asked for it to be sealed."
Chief District Judge Mark Fuller issued a sealed order on April 19, 2007 telling the government they had to have their response in to the motion by April 23. He had previously, as requested by defense counsel, sealed the Motion to Recuse and all other documents filed with it last week and later ordered attorney Parkman to clarify whether the filing related to a jurisdictional issue in the case and a response to a government appeal of Judge Coody's ruling on the bond revocation issue should be under seal. Mr. Parkman filed a motion saying there was a typographical error (referring to the words "under seal") on the certificates filed and left the decision to seal or unseal up to the Court.
In the government's response they say the Scrushy motion related to recusal should be denied because it is untimely:
"Defendant Scrushy attacks the impartiality of the trial judge Title 28, United States Code, Section 455(a). Mot. at 22. To avoid the obvious opportunities for forum shopping and other improper gamesmanship, a motion for disqualification under Section 455(a) must be timely... In particular, the general rule is that one must raise the issue of disqualification of the judge "at the earliest practicable moment after relevant facts become known."...
Defendant Scrushy claims to have first learned of facts suggesting the possibility of bias on the part of the trial judge on February 22, 2007, and to have investigated these facts from that date until April 17, 2007 - the date he filed the motion. Mot. at 2-3. Yet his own motion belies his assertion that April 17, 2007, was the earliest practicable moment that he could have raised the disqualification issue: The affidavit of defendant's private investigator, Michael Magrino, reveals that Defendant Scrushy contracted with Magrino about investigating the disqualification issue on February 21, 2007 - one day earlier than Scrushy claims to have first learned of his purported "newly discovered evidence." More importantly, Magrino swears that "it took [him] approximately one week to conduct his investigation and retrieve all of the information [referenced in the Motion]." Mot. at Exh. 28.
Moreover, the vast majority, if not all, of the "newly discovered evidence," has been publicly available for months or years. Consequently, by his own admission, Defendant Scrushy possessed or had ready access to the information contained in the Motion on or about March 7, 2007, yet failed to raise the issue of disqualification until April 17, 2007 - after this court issued several rulings against Defendant Scrushy, and thus indicating the very gamesmanship that courts have consistently warned against in enforcing the timeliness requirement for recusal motions...
On Wednesday, Parkman filed an affidavit as part of a motion asking to supplement the record with information related to the issue of whether or not the Motion to Recuse was filed in a timely manner. According to Parkman, Scrushy was 'first apprised by a third party of the possibility that certain information may exist to warrant a mistrial/recusal motion" on "February 22, 2007."
He says the task was made difficult because "there existed several corporations which had multiple filings in numerous states." Parkman also cited the other cases requiring his presence and that of his two partners.
Parkman says "Because of the serious nature of the matter, the facts and legal argument were then personally taken by counsel out of state for a review by another independent expert. This person then referred us to an out of state legal professor in ethics." He says a copy of the brief was sent for review and sent back "toward the end of March, 2007" and that the motion and brief were then circulated among the other attorneys for Mr. Scrushy for "review, criticism, and corrections."
He challenges the government's claim as to the defense filing the motion after unfavorable rulings from the court. "At no time during this work was any order rendered by this Federal Court, except the ruling which Judge Coody issued on the Government's Revocation Motion." In a footnote Parkman notes "it was the Government who was dissatisfied with this ruling and appealed the issue, not Defendant Scrushy."
The government said in their filing Tuesday, the Motion to Recuse is based on "Unsupported, Irrational, and Highly Tenuous Speculation and is Merely an Effort to Manipulate the Court."
..."Defendant Scrushy's disqualification argument distills to the following: The trial judge has an ownership interest in, and receives monies from, the "Company" that has contracts with various departments of the United States. The United States is prosecuting Defendant Scrushy in this litigation. Therefore, the trial judge is biased in favor of the United States in this litigation for fear of reprisal against the Company and damage to his income stream if he rules unfavorably towards the United States.
...More accurately, this Court should dismiss this claim as ‘farcical'....Equally frivolous is Defendant Scrushy's argument that the trial judge might not be inclined to rule against the United States because AUSA Feaga is a colonel in the United States Air Force Reserve assigned to Langley Air Force Base and "it is very likely someone" in the office of the Staff Judge Advocate had involvement with a contract involving the Company. Mot. at 29.
Defendant Scrushy offers only conclusions, opinions, and innuendos, not actual facts to support this fanciful exercise in rank speculation about AUSA Feaga's duties and this Court's intent...Moreover it strains credulity to even imagine how the Company or the trial judge's interest in the Company could even be remotely affected by AUSA Feaga's involvement in the present litigation...Defendant Scrushy has provided no facts to support even the suggestion that the trial judge has an interest in this litigation or that the Company or the trial judge's interest in the Company will in any manner be affected by this litigation..."
It is interesting to note the government does not get into specific details and facts and refers to what is presumably, but not for sure known, an entity as the "Company" which by earlier reports and the judge's financial disclosure statements could possibly be Doss Aviation which Fuller owns an interest in.
The judge mentioned in an earlier order documents related to the recusal required special handling under the E-Government Act of 2002. He has yet to move on Mr. Parkman's request that the Motion to Recuse be unsealed.
Although there could be issues related to making sure the appropriate privacy information is redacted, the longer the judge keeps the original motion under seal the more talk about whether or not the document has any credibility will change to questions asking what the judge and/or the government wish to keep out of public view and why.
The 11th Circuit Court of Appeals recently ruled Judge Bowdre, who presided over the HealthSouth accounting fraud trial, abused her discretion in a case involving the Drummond Company when she kept documents under seal. The 11th Circuit explained the chain of events this way:
"In these consolidated appeals, several lawyers challenge a sanction of criminal contempt entered after the lawyers filed a motion and two declarations in open court, and a journalist seeks access to the filings, which have since been sealed following media reports about their contents. The underlying complaint contains sordid allegations of intrigue, corruption, and assassination in Colombia, "where the awful is ordinary." Silva v. U.S. Att'y Gen., 448 F.3d 1229, 1242 (11th Cir. 2006). After the district court by letter asked the U.S. Department of State whether this litigation would adversely affect the conduct of foreign affairs, the plaintiffs twice moved the district court to inform the Department about the contents of a recent declaration of a former Colombian official. The district court then held the plaintiffs' lawyers in criminal contempt and sealed their declarations and their motion to reconsider even though a month earlier the district court had decided that too many filings had been sealed."
Regarding the declaration of the former Colombian official the court said, "because the substance of the Colombian official's declaration had already been reported by the Miami Herald, sealing these documents could not remedy any of the highly unlikely harms that could be caused by pretrial publicity. Third, the district court failed to explain why its decision to allow the Drummond attorneys to comment about the declaration of the government official was insufficient to counteract any purported prejudice. "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377, 47 S. Ct. 641, 649 (1927) (Brandeis, J., concurring); see also Robert D. Richards & Clay Calvert, Counterspeech 2000: A New Look at the Old Remedy for "Bad" Speech, 2000 BYU L. Rev. 553.
The opinion written by former Alabama Attorney General Bill Pryor went on to outline some expectations regarding the balancing of the public's right to know and the necessity to sometimes have documents filed under seal.
In balancing the public interest in accessing court documents against a party's interest in keeping the information confidential, courts consider, among other factors, whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents. See In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987); Shingara v. Skiles, 420 F.3d 301, 305-06 (3d Cir. 2005); Amodeo, 71 F.3d at 1050-51.
From appearances, some of the apparent issues involved in the Motion to Recuse have been reported in the media. No one knows for sure except for the attorneys and the court what is in the sealed Motion to Recuse. Sometimes the sealing of documents requires the intervention of the press, such as was definitely the case in the Drummond matter. Sometimes, the issues are not that grave and require a little patience. This has all along been a case that required a great deal of patience. The next move it seems is up to Judge Fuller.
Reported by: Helen Hammons
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