Aug. 9, 2007 - A three-judge panel at the U.S. 11th Circuit Court of Appeals in Atlanta last week rejected a time-sensitive motion by attorneys for Richard Scrushy asking for the preservation of evidence related to alleged juror misconduct.
The defense motion had asked that subpoenas be issued so that computer information related to alleged juror e-mails, if it existed, would be preserved.
In standard language the court said,"We express no view on the merits of any issue which may be raised in this appeal, and nothing in this order should be construed as such."
Significantly for attorneys for the former HealthSouth CEO, however, the judges "DIRECTED" the clerk "to schedule this appeal for oral argument once briefing has been completed." There have been no appeal briefs yet filed with the court.
Former federal Magistrate Judge John L. Carroll, now Dean of the Cumberland School of Law at Samford University says, "Normally the reason why oral argument will not be set until after the brief is that's the court's first opportunity to sort of learn about the appeal. This panel apparently believed based on whatever issues they saw in this motion that the case certainly warranted oral argument and so rather than wait any longer the went ahead and directed the oral argument be scheduled."
Carroll went on to say that it makes a lot of sense administratively. "If they know they're going to have oral argument, they may as well go ahead and get it on an oral argument calendar. I think maybe probably it means the appeal may proceed more quickly than otherwise. I only say maybe because normally it would not go on an oral argument calendar until the court had considered the request from each party for oral argument. When you file a brief that's when you request oral argument - at the same time. This panel has obviously looked at the case and the issues in it and said okay, put it on the oral argument calendar. Obviously there's going to be a briefing schedule set. "
The former judge says he has not seen this very often. "No, normally, although I don't know that I've ever kept track of it, but the normal process is you wait. But, there are usually not these sort of interlocutory motions that the court would see. This is a serious case involving the governor of the state and at least this panel believed it warranted oral argument."
The Court's Web site says that "approximately three-fourths of the court's cases are decided on the briefs submitted by the parties, while the remaining cases include oral argument."
Usually cases are put on the oral argument calendar if it is felt the decisional process would be significantly aided by oral argument.
The Court's operating procedures related to oral arguments state: "When an appeal is placed on the oral argument calendar, a judge of the court has determined that oral argument would be helpful in that particular appeal." Attorneys have to be prepared to answer questions from the panel.
Unlike a trial, oral arguments in federal circuit court are usually brief, sometimes 10 minutes per side. While the amount of time for arguments before the court has not been set it may be instructive that the Court's operating procedures suggest attorneys may want to review an essay entitled Twenty Pages in Twenty Minutes Revisited.
Since everything has a local Alabama connection, I thought it might be interesting to note that the author of the suggested reading is senior 11th Circuit Judge John C. Godbold who was educated in Selma public schools, graduated from Auburn and later Harvard Law School. He began practicing law with Richard T. Rives in Montgomery.
In a 2003 Article in the Stetson Law Review, former 11th Circuit Judge Joseph W. Hatchett and law clerk Robert Telfer, III say concerning oral arguments the following:
The three-judge panel that directed the flagging of the case was comprised of Judges Anderson, Black, and Hull.
Judge R. Lanier Anderson was nominated by President Jimmy Carter and appointed to the court on August 6, 1979 (then 5th Circuit). He is a graduate of Yale College and the Harvard Law School. He was in private practice prior to being named judge.
Judge Susan H. Black was nominated by President George H.W. Bush and appointed on August 12, 1992. She is a native of Valdosta, Georgia, a graduate of Florida State University and the University of Florida College of Law. She previously sat as a district judge for the Middle District of Florida from 1979-1992.
Judge Frank M. Hull is a native of Augusta, Georgia appointed to the court on October 3, 1997. Judge Hull, a female judge, was nominated by President Clinton and is a graduate of the Emory University School of Law. She came to the 11th Circuit from the U.S. District Court Judge, Northern District of Georgia, and before that the Superior Court of Fulton County, Georgia.
These judges may or may not be the same judges that hear the oral argument in the case. Carroll says he tried to think about whether or not the same panel would end up hearing the argument "but I don't remember enough about 11th Circuit internal operating procedures to know that, to say one way or the other."
Attorneys have 40 days after the last needed transcript from district court is filed with the Court to file their appeal briefs. After that it's usually 60-90 days at least before argument would be heard. Carroll says the schedule will be entirely dependent on "how many cases they've got."
If a different panel is appointed to hear the argument, they could decide not to hear an oral argument. They can pretty much do what they want.
But Carroll says he thinks "it's likely they'll go ahead with it. It could be after receipt of the briefs they could change their mind; they certainly have that power, but I think this indicates internally to the court that at least some folks think this is worth oral argument . But obviously the panel that gets it can change its mind."
Scrushy was convicted of bribery, conspiracy and mail fraud charges in June 2006 along with former Governor Don Siegelman. Scrushy is currently serving his sentence at a federal prison camp in Texas.
Neither defendant, as of this writing, has filed their Motion for Release Pending Appeal. Carroll says, "It's entirely up to the lawyers, obviously they want to, since they really only have one shot; they want to make sure they give it their best shot and I'm sure they've conferred with their clients and their clients approved this particular approach."
Carroll says he's sure "both will include in their paper the fact that the court has said oral arguments are to be scheduled in the case. The fact they've decided to go ahead with oral argument is very significant. It means they attach some significance to this case. "