Some of the Stated Objections Before the Evidentiary Hearing on Juror Misconduct - Nov 2006

Kilborn:  "...If Your Honor would include in extraneous information any text messaging that they received about the case and not just e-mails, but text messaging.  And the last one would be that obviously since the Court is going to have the recipients and the senders of some of the e-mails, and that e-mails would be considered Internet information, if the Court would specifically ask whether or not the jurors received any e-mails off the Internet about this case or the Defendants."

The Court:  "I don't want to elaborate too greatly about these e-mails, but unless the e-mails deal with what the Court has defined as extraneous information rather than the areas of deliberation with fewer than 12 of the jurors present or any correspondence between jurors outside of the collective participation of all of the jurors, that would not fall under the definition of what this Court is looking into today."

Kilborn:  "I think it's a definitional issue to make sure - some of them may not understand that Internet material would include e-mail.  That's my point."

The Court:  "I will consider that.  Anything else?"

Kilborn:  "No Your Honor."

The Court:  "Anything on behalf of Mr. Scrushy?"

Leach:  "Yes, Your Honor.  Just a few things, Judge.  Thank you for this hearing today.  First, Judge, we don't object to the questions that you have proposed.  Obviously the objective here as we have set out in the past is to conduct a reasonable investigation.  We do have some comments, however, Your Honor.  First, Judge, if I understood you correctly you are not going to allow us to follow up after the juror has asked - answered the Court's questions; is that correct, Judge?"

The Court:  "That's correct.  That's the purpose of what I am asking you to state for the record now.  And I know that it puts you at a slight disadvantage, but the Court has extraordinary discretion as I understand it to conduct these hearings, and I don't want to make this any more a laborious process for these individuals than absolutely necessary.  If I think that it would require the opportunity, out of an abundance of precaution, the fairness of the Defendants and the United States, I may suspend that limitation."

Leach:  "Well, let me just tell you what my concern here is, Judge.  Obviously from the defense perspective we are making a record that will eventually be reviewed by the 11th Circuit.  By the procedure that you have outlined there will be no contemporaneous way for us to articulate to the 11th Circuit what our thought process is about additional questions.  Now, to alleviate that what I would propose if Your Honor would allow us is if we could just hand write our thoughts, and even if you don't review it, Judge, just so the 11th Circuit could have, you know, what our thought process was on those things.  But I would suggest, Judge, that as to those handwritten notes you ought to take a look at them because we might have something that, you know, you have overlooked and would be of value with those jurors.  And I would suggest, Judge, that would help us in terms of the reasonable investigation here."

"Judge, I won't belabor, we did get your order with regard to the procedures that we filed under seal, we just want to maintain our objection for appellate purposes with regard to what you have done.  Judge, I would also suggest to you that in terms of your questioning, I think it should include questions of the jurors in terms of what computers they used, what e-mail services they used.  And I would suggest to Your Honor that that ought to be front-loaded and it ought to be front-loaded only because obviously you want truthful testimony from everyone who will testify here today.  And I think just the Court's awareness of those items to include what Mr. Kilborn referred to  in terms of text messaging, you know, in those questions.  I think the order of inquiry will be important in that regard just in terms of letting the jurors know that the Court is aware of those issues."

"Judge, I would ask that you ask a question towards the front end whether the jurors have been questioned by anyone with regard to the testimony that they are here to give today, to  include members of the press, people from the government, and we certainly don't object to you asking whether -"

The Court:  "After the verdict was rendered?"

Leach:  "Yes, sir.  Well, at any pint, but you know, I would suggest that's the area of inquiry here today.  Judge, on question number four, and I listened to you go over it again with Mr. Kilborn and I think I have got this right.  I believe the time period that you have articulated des not include any research that may have been conducted by the juror between the time that they received their summons and became a juror.  And I would ask that you encompass that period as well.  In other words, they - by what you have set out they may have done the research, possessed the documents, and they technically don't fit within your question, and that extraneous information may have been what could have been utilized.  So I would ask that in question number four you just expand your time period to include the period from summons to the time that they actually came in and became jurors."

"Now judge, you - I think this related to the gallery, but some of the lawyers here have laptops, are we allowed to use our laptops?"

The Court:  "Yes, you would.  We will conduct this hearing just like we did with the trial, is my point."

Leach:  Yes, sir.  Okay.  Could I have one moment to consult with counsel?"

The Court:  "You may.  Needless to say we will conduct this just like we did with the trial with the exception of that lavaliere microphone that we had so much trouble with. (Pause)

Leach:  "Judge, just one correction in terms of the argument made by the government, that I believer there are four separate jurors.  Now, of course, we don't know the e-mail addresses so it may be three jurors, but I would suggest to the Court there's at least three jurors involved with the e-mails.  And if the Court - I know the Court is directing towards the extraneous information having to do with punishment, that would be one of the either third or fourth jurors."

"And finally, Judge, just want to say thank you once again for having this hearing today, and it's clear that once again you have carefully thought through this process and we appreciate it."

The Court:  Anything further by the United States?  And if you do make sure you approach the podium, Mr. Feaga.

Feaga:  "Yes, sir.  Your Honor, the United States wants to respond briefly to what has occurred now with regards to the defense attorneys that have addressed the Court.  Your Honor, Mr. Leach has now asked the Court to ask additional questions.   As you know, we object to the extensive questioning that we think the Court intends to go into with the jury based on the allegations that are before the Court.  Mr. Leach has now asked the Court to ask the jurors who, if anyone, they talked to post-trial.  Then he asked the Court to inquire of them from the time they were struck until the time they began to serve, have they been exposed to any extraneous information."

"Your Honor, what they are clearly seeking the Court to do, and I think that's evident from the fact they are thanking the Court for having this hearing while they are asking for this, they are seeking to go on a fishing expedition, Your Honor.  And the issues that are before the Court, Your Honor, are extremely narrow that they have raised.  And that is a claim that is nebulous at best from one juror who information was obtained from under highly questionable circumstances.  Where some documentation that was at one time in their hands has mysteriously disappeared, okay, been thrown out or whatever they say.  Okay.  So we have this one juror saying no, he is not sure, he doesn't know if something was brought in but he thinks something was.  So the Court is having an inquiry.  And we can understand the Court wanting to get to the bottom of it, and the simple and easy way to do that is to ask each juror did they bring anything into the jury room besides what was given to them in the Court.  If they say no, Your Honor, they are entitled to have that answer believed by the Court and we should move on."

"If the Court is inclined to ask about these anonymous e-mails that mysteriously disappeared, this is the first criminal case that I have heard of, certainly the first one I have ever been involved in where defense attorneys allegedly got anonymous e-mails of jurors mailed to them.  But if the Court were inclined to pursue that at all it would simply be to ask the juror that allegedly generated that e-mail did you or did you not, and if they say no, Your Honor, their answer should be believed by the Court and that should be the end of the inquiry.  We can see the one question and then the other, Your Honor."

"There's a real danger, and I know the Court is concerned with this, Your Honor - and I want you to know the United States believes that this Court has done an outstanding job with a very difficult case - but we are very concerned about what is going to happen today.  We weren't concerned about the question being asked was extraneous information brought in.  But the extensive level of questioning that the Court is preparing to embark on, and if added to by the questions that the defense wants to go into, Your Honor, we are basically - at that point we are on a fishing expedition.  The concern is what about the next criminal trial and the next criminal trial?  Is an allegation by defense attorneys of if some friend of the Defendant mails them e-mails that they created, is that going to generate an inquisition of the jury in every criminal trial that we do in the Middle District?"

"Your Honor, we know the Court is concerned about this, and again, we have nothing but respect and admiration for the job that the Court has done with a very difficult trial, very complicated trial, but we are very concerned about where the Court is going right now.  We respectfully ask the Court to reconsider.  And if each juror denies having brought any extraneous information into that jury room, and if - should the Court want to ask the juror that allegedly generated these anonymous e-mails, if they did, that should be the end of the inquiry, Your Honor, unless the Court gets a positive response, and at that point in time the Court might have follow-up questions.  Thank 'you for hearing us, Your Honor."

The Court:  "It's clear if there are objections by the United States that the Court is going too far and objections by the Defendants that the Court is not going far enough that I hopefully am proceeding down the right path.  Your objections will be noted for the record, but overruled.  The question posed by Mr. Leach about expanding the time from the time they received their summons until June 29, 2006, the information that the jurors would have known about this case, researched about this case or researched about any Defendant named as a party in this case, was clearly covered during the voir dire process of this trial, so the Court's inquiry today will continue to be limited to that time after they took their oath as a juror through their service in this case, which ended on June the 29th, 2006."

"Depending upon the responses the Court receives, the Court reserves the right to change it's mind about consulting with counsel before the juror is allowed to be excused.  Let's take about a five minute recess.  We are waiting on one witness to come.  I was going to take them up in groups so that I can give these instructions generally instead of having to repeat them over and over to the witnesses as they are called.  So let's take about a five minute recess.  We will reconvene - let's just say we will reconvene at 9:25."