Scrushy Attorneys Ask 11th Circuit for Subpoenas

ATLANTA, June 12, 2007 -- Attorneys for businessman Richard Scrushy have filed a "time sensitive motion" with the 11th Circuit Court of Appeals asking for subpoenas to preserve evidence.

Laying out many of the same issues filed in various motions throughout the trial in Montgomery attorneys say in their motion they are filing the document for the issuance of subpoenas

"in order to preserve documentary evidence which may be lost or destroyed, which the district court has refused to preserve despite numerous requests.  The documentary evidence is necessary to determine if alleged e-mails between deliberating jurors in this case are either authentic or fraudulent."

Assistant United States Attorney Steve Feaga says the government has "no comment" on Scrushy's motion but has been given until Wednesday, July 18, to respond.

Scrushy's attorneys further outline the reason the Court needs to step in at this juncture.

"...Defendant is now incarcerated, without an appeal bond, and no court has even looked at the available evidence that could determine whether or not the verdict in this case was fatally tainted. Most significantly of all, as of this filing, no court has ever asked a single juror if these e-mails are real or fraudulent.  Defendant respectfully asks that this Court step in at this juncture and exercise its authority pursuant to Fed. R. Crim. P. 17(c) and/or the All Writs Act, 28 U.S.C. § 1651, to, at a very minimum, secure and obtain the evidence that is necessary for this Court to determine if the jury in this case was exposed to extrinsic evidence.

Furthermore attorneys argue it is necessary for the 11th Circuit to step in because the defendant

"is unable to legally obtain this evidence without intervention or permission of a court. Yet Defendant's every effort to seek the district court's permission or assistance in obtaining such evidence, or even to have it preserved for review by this Court on appeal, has been turned back, while the same court has failed to conduct a meaningful investigation to determine if these  e-mails really were sent by the jurors in question."

Scrushy's motion asks the Court to issue an order:

"(a) permitting Defendant's Addendum to be filed under seal so that the identities of the jurors will remain confidential, as provided by the order of the district court;"

After reviewing the history of the e-mail issue, which I have segregated and can be found here (this includes descriptions of what was in the actual purported e-mails),  the filing goes on to argue "this is one of those rare cases where documentary evidence could readily, and conclusively, resolve an otherwise complicated, difficult legal issue."

Attorneys Art Leach and James Jenkins argue as they have previously in district court "if the purported e-mails are authentic, then it is apparent that the jury was exposed to extrinsic evidence that was prejudicial to Defendant and that he is entitled to a new trial before a jury that determines his case solely on the basis of evidence properly admitted in court. Turner v. Louisiana, 379 U.S. 466, 472-473, 85 S.Ct. 546 (1965). "

On the other hand, "If the purported e-mails are fraudulent, then someone has perpetrated a fraud on the court. The perpetrator(s) should be identified and prosecuted. If any of these jurors have been wrongly accused of misconduct based on fraudulent evidence, these jurors have a vital and legitimate interest in having the cloud of suspicion lifted from them in regard to their lengthy jury service in a difficult, high-profile trial."

"If the evidence has not been lost or destroyed and it shows the e-mails are fraudulent, Defendant's appeal can proceed, with no need for this Court to grapple with the issue of whether or not the evidence of jury misconduct before it requires a new trial, or a remand for an evidentiary hearing. All of this turns on the question of authenticity of the e-mails."

The motion says although "subpoenas typically are issued by the district courts," nothing in the Rules "limits the ability of the courts of appeals to issue subpoenas...Thus, by the plain language of the Rules, this Court has the authority to issue subpoenas when the requirements of Rule 17 are otherwise met."

Attorneys also cite to the court the "All Writs Act, 28 U.S.C. § 1651.  Under that Act, "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

The motion further states the under the All Writs Act the court can extend the power of the Act "under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice."  New York Tel. Co., 434 U.S. at 174 (internal citations omitted).  In this instance, the Court's authority properly extends to the ISPs, who have not taken any action to hinder justice, but who cannot disclose the necessary information without a court order."

In the filing attorneys claim the court should issue subpoenas for information

  • if the requested documents are evidentiary and relevant;
  • if they are not otherwise procurable by exercise of due diligence;
  • if Defendant cannot properly prepare for a hearing on whether there was juror misconduct without the documents; and
  • if this motion "is made in good faith and is not intended as a general 'fishing expedition.'"

"As the Supreme Court held in Turner, 379 U.S. at 472-73, "[t]he requirement that a jury's verdict 'must be based upon the evidence developed at trial' goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury." This Court has repeatedly emphasized that it is "the court's duty to ensure that the jury verdict was in no way tainted by improper outside influences,..." United States v. Rowe, 906 F.2d 654, 656 (11th Cir. 1990.) When there is evidence of a jury's exposure to extrinsic evidence, the court has an unmistakable duty to ensure that "the entire picture ... [is] explored." Remmer v. United States, 350 U.S. 377, 379, 76 S.Ct. 425 (1956.)"

"The Government also has an obligation here to determine whether the verdict in this case was tainted, instead of opposing each and every request for records that should answer the most important question in this case at this time.  See Dunn v. United States, 307 F.2d 883, 885 (5th Cir. 1962) (reversing a conviction and stating, "A United States Attorney ... must also remember that he is the representative of a government dedicated to fairness and equal justice to all and, in this respect, he owes a heavy obligation of fairness to the accused."). "

"Finally, Defendant should have a full and fair opportunity to prove to this Court that the verdict in his case was tainted by jury exposure to extrinsic evidence and other jury misconduct.  The only way that Defendant can have a meaningful opportunity to do this is to allow him access, under appropriate protections, to the evidence necessary to prove-or disprove-the authenticity of these e-mails."

"Based on the lengthy proceedings below, it is apparent that Defendant had no way of authenticating the e-mails that were provided in the multiple anonymous letters unless the district court authorized Defendant to obtain the necessary evidence, or obtained the evidence itself for its own in camera  review. "

"Defendant requested that authorization in every way possible. The district court denied each and every request, even the request that the court obtain the records itself and seal them for subsequent review. "

"Further, as Defendant demonstrated to that court by the affidavit of his forensic computer expert, such electronic evidence is time-sensitive, and subject to routine or other destruction. Defendant repeatedly reminded the district court of the need for timely action to preserve this evidence, beginning with his first filing on September 29, 2006. (Doc. 467.)"

Chief District Judge Mark Fuller, in denying Scrushy's motion for a new trial in December, rejected calls for further examination into the jury's conduct beyond the hearings that he held on the issue:

"Indeed, the Eleventh Circuit and the Supreme Court have repeatedly found that district courts did not abuse their discretion in denying motions for new trial or in rejecting defendants' demands for the examination of jurors predicated on arguments of a variety of types of juror misconduct not encompassing external influence on the jury."

In his June 22, 2007 ruling on the defendant's motion to reconsider his prior denial of the motion for a new trial, Judge Fuller stated regarding further investigation:

"Moreover, neither Scrushy, nor Siegelman, appear to grapple with the fact that all of this investigating would not definitively establish anything other than whether the exhibits are actually unaltered copies of emails sent by machines to which jurors had access. Even if the computer records showed that email messages were exchanged between computers owned or used on occasion by jurors, that would not prove who actually authored the messages using these machines."

On another note, the filing confirms that Scrushy has been designated for assignment to a prison camp in Texas:

"Defendant, a first offender convicted of public corruption crimes, was remanded to custody at sentencing, and is currently incarcerated at the Atlanta Federal Penitentiary.  The district court denied Defendant's request for voluntary surrender and denied his motion for appeal bond without any hearing or argument, and without making any findings. (Doc. 617.) On July 10, 2007, Defendant was designated to USP-SCP Beaumont, Texas, which is over 580 miles from his wife and five children (ages 2, 4, 7, 12 and 14). "

On Wednesday, attorneys for Scrushy filed the notice in the Middle District of Alabama that they would be appealing Scrushy's case to the 11th Circuit Court of Appeals.

Reported by:  Helen Hammons