MONTGOMERY, Ala., May 14, 2007 -- The case of former Governor Don Siegelman and buisnessman Richard Scrushy made an appearance in Washington, D.C. on Thursday, May 10, when Congressman Artur Davis questioned U.S. Attorney General Alberto Gonzales during a House Judiciary Committee hearing related to the ongoing congressional inquiries into the firing of eight U.S. Attorneys.
Davis, who served as an assistant U.S. Attorney in the Middle District of Alabama from 1994 to 1998 grilled Gonzales about the number of Democratic office holders indicted compared to the number of Republicans between 2001-2006. The small portion related to the Montgomery case is highlighted in yellow at the end of the questioning. (Video available at end of page)
AG Gonzales: That was my impression. Yes.
Rep. Davis: Is it your practice to sample the opinions of U.S. senators regarding their confidence in U.S. attorneys?
AG Gonzales: No, what's really important (interrupted)
Rep. Davis: No. My question is, is it your practice to sample (interrupted)
AG Gonzales: Can I give you the answer?
Rep. Davis: Is it your practice to sample the opinion of U.S. senators regarding the performance (interrupted)
AG Gonzales: What is important here is that there was a consensus recommendation by the senior leadership in the Department of Justice (interrupted)
Rep. Davis: No sir. I only (interrupted)
AG Gonzales: who knew the performance of U.S. attorneys and made the recommendation to me.
Rep. Davis: General, I have a limited amount of time. Is it your practice - yes or no, to sample the opinion of all 100 U.S. senators regarding the performance of U.S. attorneys?
AG Gonzales: Of course not. But in this particular case what's important is that (interrupted)
Rep. Davis: Are there any Democratic senators that - we only have a limited time general (interrupted)
AG Gonzales: The senior leadership in the department gave me their recommendations.
Rep. Davis: I'm not asking you about Mr. Iglesias, Gen. Gonzales. I'm asking you in general. Are there any Democratic senators who have expressed concern about U.S. attorneys and there have been terminations based on concerns of Democratic senators - yes or no?
AG Gonzales: Not that I can recall.
Rep. Davis: Is there any significant justification Mr. Gonzales for a significant disparity in the number of Democrats prosecuted versus the number of Republicans prosecuted with respect to local elected officials? Would there be any reason for that disparity?
AG Gonzales: I wouldn't know if such a disparity existed. It's not something that we look at. It's not something we keep track of.
Rep. Davis: Would it concern you there was a disparity between the number of elected Democratic officials prosecuted and the number of elected Republican officials prosecuted?
AG Gonzales: Well I (interrupted)
Rep. Davis: Would it concern you if it existed? Yes or no?
AG Gonzales: It depends on the reasons for it.
Rep. Davis: Well I would like to add to the record Mr. Chairman a survey done by the University of Minnesota which surveys prosecution of local elected officials between 2001 and 2006 and surveys with the respect to the partisan affiliation. 85 percent of the local officials prosecuted were Democrats. 12 percent were Republicans.
Unknown Voice: Would the gentleman yield?
Rep. Davis: No I will not yield. Would Gen. Gonzales, do you dispute that characterization?
AG Gonzales: I know nothing (about) this report. I don't know the basis of this report. We don't keep that kind of number and quite frankly for us to do so - that would be more alarming.
Rep. Davis: Gen. Gonzales. Let me ask you this question. Would it concern you if you did your own research and you discovered there was a significant disparity?
AG Gonzales: We're not going to do that kind of research. It would be dangerous.
Rep. Davis: Would it concern you if it were reported? Would it concern you?
AG Gonzales: Listen it would concern me if we're not making cases based on the evidence.
Rep. Davis: Gen. Gonzales. I would represent to you, and you can certainly check the data yourself, 50 percent of the local elected officials are Democrats; 41 percent are Republicans. Again I ask you the question. Do you have any reason to assert seven times more Democrats are guilty of federal crimes than Republicans?
AG Gonzales: I have no way of knowing the legitimacy of this report you're citing to. I don't know the basis of these numbers.
Rep. Davis: Let me, if I can, go back to the Wisconsin case to possibly test this theory. These are the facts in the Wisconsin case. A woman, who was a career appointee who'd been appointed by a Republican governor, was working for the state tourism department. She was indicted because a contract was awarded to a political contributor to the Democratic governor. There was no testimony at trial that she knew of the contribution to the Democratic governor. There was no testimony at trial that she was asked to award the contract to this particular company. And, there was testimony at trial that the company was the lowest bidder. Are you aware in that particular case, involving Georgia Thompson, the 7th Circuit vacated the conviction from the bench?
AG Gonzales: Yes, I am aware of that.
Rep. Davis: Do you know of any other case, while you have been attorney general, where an appeals court vacated a conviction from the bench?
AG Gonzales: Highly unusual.
Rep. Davis: Does that concern you sir?
AG Gonzales: Well, again (interrupted)
Rep. Davis: Let me turn to - my time is running out, to the Alabama case.
AG Gonzales: ..charging decisions of Democratic office holders (interrupted)
Rep. Davis: I have little time sir. The former governor of Alabama, who was a Democrat, was indicted (interrupted)
AG Gonzales: May I - Can I be allowed to answer the questions.
Rep. Conyers: The attorney general has the privilege to respond to the question.
Rep. Davis: Let me pose the Alabama question and you can respond to both.
Rep. Conyers: Wait a minute Mr. Davis. Let's let him respond to the other question that you asked - briefly sir.
AG Gonzales: The government prevailed at the lower court. We prevailed at the lower court.
Regarding the e-mails, the representative did not mention the debate over the authenticity of those documents - nonetheless an interesting question by Rep. Davis and answer by Attorney General Gonzales.
In his mid-December 2006 ruling denying a new trial, Chief District Judge Mark Fuller said he could not find a legal precedent for further inquiry into the copies of purported e-mails. While calling the "'evidence' of premature deliberations or deliberations by fewer than all members of the jury in this case...problematic." He says attorneys "provided no legal precedent for such an unusual and intrusive investigation of jurors."
The judge did say that, "Initially, the Court had some concerns that the alleged email which included a statement that the penalty was too severe might arguably present some evidence that some or all members of the jury had been exposed to extraneous information on the penalty."
Judge Fuller says the fact there was a split verdict in the case is evidence "demonstrating that the jury carefully weighed the evidence and reached a reasoned conclusion free of undue influence and that the jury did not decide the case before the close of the evidence."
In a late February filing after receiving more purported e-mail, a filing signed by Scrushy attorney Art Leach claims the 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.
The Government's attack on the authenticity of the e-mails does not stop there. Unless the Government has, in fact, investigated the authenticity of the e-mails and not provided that information to Defendant or the Court, its most recent response goes on to make the claim, without any evidentiary support, that:
'The most logical conclusion to be drawn from the intermittent submission of the purported email during the protracted progress of this case post-trial is that the source of the purported email has simply reacted to the Court's rulings by concocting material designed to meet the legal standards recognized and applied by the Court. (Gov't Response at 7) (emphasis added).'
"In other words, the Government is telling this Court that the e-mails that have been submitted to this Court are forgeries. If the Government has evidence of this claim, it should submit it. If it does not, then the Government should join in the request to obtain the computer records and other evidence that will determine whether the e-mails are forgeries or authentic, rather than obstructing every effort to ascertain the true facts. As set out in Defendant's prior filing, "[w]whenever something occurs at a trial that may tend to affect the impartiality of the jury, both sides have a vital interest in learning everything there is to know about the matter." United States v. Moten, 582 F.2d 654, 660 (2d Cir. 1978)."
Attorneys say the copies of the e-mails 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."
The government responded to the last communication by the e-mail fairy by the following respnse to the end of February filing by Scrushy:
"By his Motion, Defendant Scrushy continues his unsubstantiated attack on the jury that convicted him by filing with this Court yet another purported email allegedly between jurors, which Defendant claims his attorneys received anonymously. This Motion, like other defense motions preceding it, seeks post-trial relief on the basis of unfounded, incredible information allegedly emanating from an anonymous source.
The United States, as it has in its prior submissions (which are incorporated herein by reference) asserts that the law of this Circuit and case compels the denial of any relief requested on the basis of the entirely speculative, purported emails. Accordingly, the government respectfully submits that the Motion should be denied, and this case should proceed to sentencing as soon as possible.
Defendant Scrushy's proffer of another purported email from an alleged anonymous source does nothing to change the legal and factual landscape of this case regarding the jurors' exposure to extrinsic evidence because this Court has already received the best evidence available on this topic - the jurors' own testimony under oath in response to questions from the bench. See Smith v. Phillips, 455 U.S. 209, 217 n.7 (1982) ("surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter").
Moreover, as this Court has already ruled, a purported email from an alleged anonymous source does not qualify as the type of evidence that warrants post-trial relief. The latest unfounded, unauthenticated, purported email, like the others preceding it, simply is not "clear, strong, substantial and incontrovertible evidence . . . that a specific, nonspeculative impropriety has occurred." United States v. Cuthel, 903 F.2d 1381, 1382-83 (11th Cir. 1990). Defendant Scrushy's protestations notwithstanding, this Court has wisely and correctly declined to permit Defendants to conduct a searching inquiry of the jurors - a practice that would effectively dismantle the jury system that is the linchpin of the federal criminal justice system. This Court has already explored the very issue Defendant Scrushy raises once again and found Defendant's allegations wanting. Defendant Scrushy's latest offering adds nothing to this lengthy post-trial litigation."
In a mid-January response to previous Scrushy motions the government talked of the purported e-mails received in December and said it was time to move on:
"Accordingly, the complete absence of any explanation for these rolling submissions, and their transparent tailoring to the law and facts of the case as the Court has developed them in public hearings and on the record, demonstrate that the source of all of the purported email is inherently unreliable. The most logical conclusion to be drawn from the intermittent submission of the purported email during the protracted progression of this case post-trial is that the source of the purported email has simply reacted to the Court's rulings by concocting material designed to meet the legal standards recognized and applied by the Court. Rather than drawing the inferences Defendants propound (including the inference that jurors perjured themselves, Siegelman Motion at 1), this Court, in light of the jurors' testimony at the evidentiary hearing, should continue to apply the presumption that the jury followed the Court's instructions on avoiding extrinsic information and conducting deliberations."
As to the defense not showing prejudice the government says: "Even if the latest purported emails could be established as genuine by further extraordinary inquiries and investigations, the brief colloquies at issue on their face cannot establish prejudice sufficient to warrant a new trial."
"...the government, as Defendant Scrushy suggests, see Scrushy Motion at 12, expects that this stream of unauthenticated emails and attacks on the jurors and the criminal justice system of the Middle District of Alabama will continue unabated until this Court finally sentences Defendants for the crimes for which the jury found them to be guilty as charged."
Judge Fuller has yet to rule on a motion asking that he reconsider his order denying a new trial and still in the pipeline is the jury composition issue.