Government Responds to Scrushy 11th Circuit Motion

MONTGOMERY, Ala., July 19, 2007 -- The government has filed its response to defendant Richard Scrushy's motion which asked the 11th Circuit for subpoenas to preserve evidence related to the question of possible juror misconduct related to purported e-mails exchanged by jurors.

In their July 12 motion, attorneys for Mr. Scrushy said they were filing the "time sensitive motion" asking 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."

In their response the government says the system is under attack and granting Scrushy's motion would cause great harm:

"The harm to the government and the public is monumental if this Court grants Defendant Scrushy's Motion.  As the District Court cogently recognized "[w]ere our country to allow every person who serves as a juror in a criminal case to be subject to scrutiny of the type Defendants propose, who among us would remain willing to serve?"

Scrushy's attorneys in their motion saw things differently arguing:

"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."). "

The government says the motion should be denied "because Defendant Scrushy is procedurally and substantively barred from obtaining the relief he seeks."  Furthermore the government says "no reasonable possibility of prejudice arose from the very limited exposure of jurors to extrinsic evidence, primarily the second superseding indictment and the District Court's general information to jurors - information two jurors retrieved from the District Court's website during deliberations..."

Government attorneys say Scrushy is "most unlikely to prevail on the merits (i.e., receive a new trial on the basis of juror misconduct or exposure to extrinsic evidence).  The District Court conducted "a very thorough investigation,..." and "very broad inquiry,..." into alleged juror misconduct or juror exposure to extraneous information and found that no juror misconduct occurred and that no reasonable possibility of prejudice arose from the very limited exposure of jurors to extrinsic information..."

"At the second evidentiary hearing, the District Court called each juror to testify under oath and to answer twelve basic questions and any follow-up questions from the District Court...The District Court's questions were "very broad inquiries"  intended to "prompt jurors to testify about Internet searches or other possible exposure to extraneous information," including extrinsic information of the sort contemplated by the purported emails that Defendants claim they had received from an anonymous source after the trial and on which they relied for their motions for new trial..."

Scrushy's motion outlined one of the reasons they felt the Circuit 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."

But attorneys for the government argue

"...By complaining that "no court has ever asked a single juror if these emails are real or fraudulent," Motion at 28, Defendant Scrushy is merely voicing his displeasure with the manner in which the District Court conducted its investigation while ignoring the reality that the trial court is imbued with broad discretion in conducting its inquiry."

The government calls the whole e-mail authenticity issue "a red herring in light of the credible testimony of the jurors at the second evidentiary hearing, as determined by the District Court, which established the degree and scope of the jurors' exposure to extrinsic evidence... The most recent batch of purported emails submitted by Defendants are equally irrelevant given the jurors' sworn testimony about and the District Court's findings on their exposure to extrinsic evidence..."

Government attorneys claim not only has Scrushy suffered no bias or prejudice "from the District Court's not asking the jurors whether the purported emails are authentic or denying his request to subject the jurors to a grand inquisition replete with seizures of their computers, records, emails, and personal information.  Defendant Scrushy's abject failure to show that he is likely to succeed on the merits of his request for a new trial on the basis of juror exposure to extrinsic evidence is reason alone to deny the current Motion."

And the government calls the complaint by Scrushy about being immediately taken into custody a lament:

"Defendant Scrushy's lament about being incarcerated after the sentencing hearing, which occurred a year after his conviction, is unavailing for the exception, not the rule, is for a convicted felon to be detained pending appeal...and the District Court specifically found that Defendant Scrushy did not qualify for an appeal bond given the substantial evidence of his guilt..."

The government says the Scrushy attorneys' resort to asking for relief under the All Writs Act "does not aid his cause...An extraordinary writ like the one Defendant Scrushy seeks "may not be used as a substitute for an authorized appeal..."  Furthermore, the government says Scrushy must wait like every other defendant, "Though Defendant Scrushy may believe that he will suffer hardship from having to wait to voice his alleged error on direct appeal, wait he must because 'such hardship does not necessarily justify resort to certiorari or other of the extraordinary writs as a means of review."

Government lawyers say Scrushy "seeks to supplement the record by having this Court permit him to seize the jurors' computers, emails, and other personal records.  Defendant Scrushy request this unprecedented relief to 'secure and obtain the evidence that is necessary for this Court to determine if the jury in this case was exposed to extrinsic evidence...' In other words, Defendant Scrushy wants this Court to supplement the record on appeal with information that was not considered by the District Court.  In making this request, Defendant Scrushy fails to understand that an appellate court's role is to review the record as established in the trial court, not to expand the record by ordering the production of more discovery, conduct hearings, and examining jurors."

Scrushy's motion argued however, "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 government says Scrushy is prohibited from seeking relief in the manner requested:

"Defendant Scrushy seeks to do what Rule 10 directly prohibits - permitting the losing party to add new material to collaterally attack the district court's judgement...Simply stated, Defendant Scrushy is not entitled to launch a grand inquisition of the jurors who convicted him."

Reported by: Helen Hammons