Scrushy Attorneys Reply to Government 11th Circuit Response; Scrushy in Beaumont, TX - Montgomery Alabama news.

Originally published 10:40 a.m. - 7/20

Scrushy Attorneys Reply to Government 11th Circuit Response; Scrushy in Beaumont, TX

ATLANTA, July 20, 2007 - Attorneys for businessman Richard Scrushy filed their reply to the government's response to Scrushy's "time sensitive motion" for the preservation of evidence related to purported e-mails exchanged between jurors during the corruption trial involving Scrushy and former Alabama Governor Don Siegelman on Friday.

Defense attorneys say the "Government continues to defend the district court's inexplicable refusal even to obtain and preserve this critical computer evidence which is subject to loss or destruction and which evidence, if it still exists, should determine whether the jurors in this case actually sent or received the e-mails in question. The authenticity of the e-mails, in turn, could be dispositive of the important question of whether this verdict was tainted by the jury's exposure to extrinsic information. The Government, however, asks this Court to join in the refusal to preserve this vital evidence."

In their earlier response to the Scrushy motion, the government says Scrushy failed to discuss several things required before a "time sensitive" motion is granted, specifically "(1) the likelihood the moving party will prevail on the merits; (ii) the prospect of irreparable injury to the moving party if relief is withheld; (iii) the possibility of harm to other parties if relief is granted; and (iv) the public interest."

Defense attorneys argue the following in their reply to the government's response:

"1. Likelihood of Success on the Merits. While the first factor ordinarily is the most important, the Court may grant Defendant's motion on a lesser showing when "the balance of the equities [identified in factors 2, 3, and 4] weighs heavily in favor" of granting that motion. Garcia-Mir, 781 F.2d at 1453..."

"This case presents the unusual situation where the likelihood of Defendant's success on the merits cannot fairly be determined without the computer records Defendant seeks.  If the e-mails are authentic, then there is compelling evidence that the jurors were exposed to prejudicial extrinsic information... If the e-mails are not authentic, then there simply is no issue as to the e-mails."

The attorneys for the defense argue the government's position that an unidentified person was making the allegations of juror misconduct is flawed.  They argue Scrushy's case "involves no ‘accusation coming from an anonymous source.'"

Instead the defense argues, "[t]he facts necessary to establish exposure to extrinsic information here are established by the very words of certain clearly identifiable jurors, if the e-mails are authenticated. While the copies were sent to various lawyers anonymously, each e-mail contains the name and e-mail address of one or more jurors.  The central issue is whether they are authentic, which is why it is necessary to preserve this evidence before it is lost or destroyed. Contrary to the Government's argument, the district court's refusal to issue a subpoena for records that could answer this crucial question undoubtedly prejudices Defendant. "

"The Government argues and the district court ruled that even if the e-mails were sent from the jurors' computers, that would not prove that they authored them...This argument rests on the presumption that such a fanciful theory would trump the inevitable conclusion that if the e-mails are authentic then, at a minimum, a court would have to inquire of the jurors if they themselves sent or received these e-mails."

2.  Irreparable Injury to Defendant

As they've previously argued to the district court, defense attorneys argue that the computer records to establish one way or the other the authenticity of the e-mails are at risk of being lost.  "As set out in the affidavit of Defendant's computer expert: ‘time is of the essence because of the volatility of electronic data,' which ‘may be irretrievably lost...' Each day that passes increases the risk that the records will be destroyed.  The Government utterly fails to respond to this argument, other than to assert that Defendant "has already received extraordinary process in this case." 

"...Defendant has ultimately asked, and is now asking, for one simple thing:  that this Court act in a timely fashion to preserve evidence that is material to the validity of the jury verdict in this case, and which may be lost or destroyed. This is the essence of irreparable injury for the simple reason that if that evidence not preserved, and if it would prove that Defendant's verdict was tainted, then Defendant, now in jail, is entitled to a new trial..."

          3.  Substantial Injury to the Adverse Party.

"...Compelling production of the records from the Internet Service Providers ("ISP") simply causes no harm to the Government.  Indeed, because the Government's interest "in a criminal prosecution is not that it shall win a case, but that justice shall be done," requesting the ISP records and determining whether justice was done works to the benefit of the Government. "

          4.  The Public Interest.

"Finally, the Government argues that the public interest would be harmed because no one would be willing to serve as a juror if the Court allowed a "far-flung post-verdict investigation into jurors' conduct."  (Gov't Response at 8-9.)  This argument turns Defendant's request on its head by both narrowing the public's interest and expanding Defendant's request."

"First, the integrity of our system of justice and ensuring that all 'are accorded the fundamental right to due process of law..' is a paramount public interest.  If jurors violated their oaths and as a result, two men are now in prison because of a tainted verdict, there is the far higher public interest in the integrity of our justice system than whatever interest might be impacted by a focused inquiry to determine if records exist that prove these jurors were exposed to extrinsic evidence."

Second, Defendant does not propose a "far-flung" investigation without producing 'credible evidence of any impropriety.' ...Defendant merely requests that the Court compel computer records from the ISPs, which if they still exist should show whether the e-mails were authentic.  If authentic, the e-mails most certainly are credible evidence of juror impropriety..."

Scrushy's attorneys further argue that "[b]ecause the Court's decision on this motion will determine the likelihood of success on the merits, this Court's decision should be "based primarily on the balancing of the equities..."  Those equities weigh heavily in favor of granting Defendant's motion.

Defense attorneys go on to say their appeal to the 11th Circuit "will raise the question of whether the district court erred in denying Defendant's motions for new trial based on jury misconduct. This motion requests only that this Court do what the district court repeatedly refused to do: obtain and preserve computer records from the ISPs."

Scrushy's lawyers say the government's contention that the motion is an improper attempt to supplement the record..."mischaracterizes the relief which Defendant seeks in this motion. 

"Defendant is asking this Court to intercede in a situation where the risk of irreparable harm to Defendant increases as each day passes. All Defendant is asking is that this Court obtain the records and put them under seal.  That action will at least address the ever-increasing risk of loss or destruction, if it has not already occurred. Once that crucial step is taken, this Court can determine-with or without input from the parties-how next to proceed."

The defendant's attorneys say because of government opposition and the failure of the district court to preserve the evidence 

"no one knows if the records still exist and if so what they tell us about authenticity. Once the records have been obtained, this Court has the authority to order further action, including, if the Court deems it appropriate, releasing some or all of the records to the parties under strict conditions, so that the parties may seek relief in whichever Court offers the most appropriate procedure in light of what the records reveal."

And the attorneys say the government "seeks to place yet another procedural impediment to this Court ordering the records be produced, the Government does not even respond to Defendant's citation of authorities demonstrating that this Court clearly has the power to do so under both Rule 17(c) and the All Writs Act, 28 U.S.C.§ 1651..."

Scrushy's attorneys say there are three fundamental problems with the government's argument that Mr. Scrushy is not entitled to any further investigation of the issue of jurors' exposure to extrinsic evidence.

"First, the November evidentiary hearing was insufficient for the simple reason, that, despite repeated requests by both Defendants, the district court never asked a single juror the simple question of whether he or she sent or received any of the e-mails that had been put in the record, most especially the jurors whose names and e-mail addresses are featured so prominently in those copies. The district court, and in turn the Government, argue that the general denial of the jurors that they were not exposed to "extraneous information" in response to twelve artfully crafted questions by the district court  was sufficient..."

The defense attorneys call the district court's question of the jurors "inadequate" and say the court interrupted jurors "who were describing their exposure to extrinsic evidence" and they claim the court also failed "to follow up on clearly inconsistent prior statements by the two key jurors and the clear inconsistencies between their testimony and the testimony of many other jurors."

Second, attorneys for Scrushy argue, the government in their argument "seeks to draw attention away from the content of the three e-mails counsel received."

Saying three e-mails "arrived after the court had conducted its November 17, 2006 hearing, and after the court had issued its order denying Defendant's first new trial motion," attorneys argue the latest purported e-mails "contain by far the most explicit references to accessing the Internet to obtain extrinsic evidence, as when Juror B  e-mails Juror C during deliberations, "received links" (Exhibit 23), and shortly thereafter Juror B e-mails Juror C, "articles you sent were outstanding!" (Exhibit 24)."

"All three e-mails demonstrate that the information was used in private communications with other jurors to convince them of Defendant's guilt, as when Juror B e-mailed Juror C, "...also, keepworking on 30...will update u on other meeting" (Exhibit 24), and Juror C, e-mails back to Juror B, "Great info 4 our friends. % of prosecution increases dramatically." (Exhibit 26.) "

"Finally, these e-mails demonstrate actual and grave prejudice flowing from the extrinsic information:  "articles u sent were outstanding! Gov & pastor up s---t creek." (Exhibit 24.) "

"Defendant argued that these new e-mails, not previously reviewed by the court, constituted new "colorable evidence" of exposure to extrinsic information that gave the district court no discretion under the law of this Circuit but to conduct an additional inquiry. (Doc. 519 at 19; Addendum Tab 519.) Yet the district court still refused all requests to obtain the computer records, never conducted another hearing, and, to this date, never asked any juror the simple question: did you send or receive any of these e-mails?"

The defense attorneys close their reply to the government's response as follows:

"That is .the critical question that the evidence that Defendant asks this Court to obtain and preserve may very well answer definitively.  While the procedures and conditions under which that evidence is reviewed are ultimately up to this Court to determine, what should not be in question is the necessity of a timely effort to secure and preserve those records if they still exist."

"If those e-mails are authentic, then this verdict is irretrievably tainted, a grave injustice has occurred, and the integrity of our system of justice has been compromised. The Government's response provides no valid reason why this Court should not promptly obtain and preserve this evidence before it is lost or destroyed."

The government called the question of the authenticity of the e-mails "a red herring" and went on to say:

"Defendant Scrushy has 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."

Attorneys from both sides will now wait to hear from the 11th Circuit on this issue.  According to the Bureau of Prisons Web site Richard Scrushy is now in the USP Beaumont, approximately 100 miles east of Houston.  Defense attorneys had previously released his designated assignment in their 11th Circuit "time sensitive" motion requesting subpoenas to preserve evidence.

Reported by:  Helen Hammons 

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