Judge Fuller is back on the bench and discussing with the new group of joruros as to why they are here, telling them it is necessary and giving them some background information.
"To determine whether extraneous information was brougt in...our outside influence." Hd says the court's instructions, the evidence, and the exhibits admitted into evidence are the only things the jurors should have considered.
He says he is not trying to get them to testify about the effect on their minds or indluence on their emotions.
First one up will be Juror #63. This is a female juror. She says she does not have any documents. She says she doesn't remember the foreperson discussing anything about his job as foreperson and outside information. She says Juror #40 "I'm thinking it was a transcript...I seen it...It looked like some of the information about the transcript that was here." Could it have been a copy of the indictment, "Yes I think that was it." The judge asks to see Exhibit 6A. He shows her 6A which #40 brought to the judge. She says she doesn't remember seeing all of it. #40 earlier testified she didn't bring anything in. The jury says #40 showed the front page and said she had it. Juror #63 says she can't recall if #40 read it to her or other jurors."
Do you know for sure it was something juror #40 brought in on her own or already in the jury room. "I'm sure she brought it in. I'm thinking it was her court."
She says this was after jury deliberations began. She says the discussion lasted about half an hour. "The only thing I can remember is she says she downloaded it from the Internet." The juror says it could have been exhibit 6A. She says she doesn't recall anything else being brought in.
The judge goes back over #63's testimony. She says again #40 brought in the document but #63 did not have it in here hands. #63 says #40 read something but she is not sure what it dealt with, but she is sure it was possibly from the document the judge is showing her.
Juror #29 will be next. This is another female juror. #29 says, "Juror #40 and Juror #7." Starting with #40, "I think during the case she went on line and got a copy of he indictment." #29 says she is not aware that #40 brought a copy of the indictment into the jury room."She indicated she had been on line and saw it out there." The juror says there was no discussion about having seen the indictment on the internet except for a minute. They said she shouldn't have looked at it and that was about it says #29. As to #7, "He indicated he went online and pulled up information on what a foreman should do." She says she doesn't recall when it happened. "He just indicated what he should be doing, probably about two or three minutes."
She says she did not see any information brought in by #40 and she also says #7s information was not inconsistent with the court's instructions to the jury.
Juror #16 is next. Another female juror with no documents.
"It was just brought to the attention that the jury foreperson looked up information as to what his role was. He said he had looked it up on the internet...His role as a foreperson... I think it was our second day of deliberation."
She says she is sure that this happened at the beginning of that day's deliberations "because we were all confused...What I recall is the second day he just let us know he had looked up instructions as to what his role was to be." She says he did not go into specifics, just announced he had looked it up. She says he did not indicate he had looked up anything else about this case.
Juror #7, the foreman is now up. The foreman says he has a document and he has brought everything he has."I had some inadvertant exposure...I get two newspapers delivered to my house and I would see the headlines but I did not read those articles." He says he also saw things on the Internet but did not read them. He says he followed the court's instructions and did not read stories during the trial.. "I did after the trial."
The foreman says he did not read any articles anywhere. He says he doesn't believe he discussed anything about headlines to other members of the jury. "I really don't think I did."
"Did you view or did you hear any material from any books, newspapers, internet sites or any other source related to any issue..or to any factual issue related to this case?" "I'm not sure how to answer that...There's a document here I brought with me...This is a document on the Court's web site about the role of the foreman and the jury."
The foreman says other than he says, "Yes." "Early in the deliberation process as we really struggled how to comprehend and understand the organization of the indictment as well as the instructional book, it occurred to me if I better undderstood...I located a copy of I believe on the District Court's web site and made some organizational type notes to help me better understand how that document was written and hlep me better understand..." He says he doesn't remember printing out the jury foreman information out. "I remember saying okay that's what I'm supposed to do...I don't remember everything you said."
"I believe I threw it away at home...my notes were really organizational in nature," the foreman says as to the indictment copy he made notes on. "We were in deliberation at that time." He says he brought the document into the jury room, but does not believe he shared it with anyone. "I used it as a guide to myself as to how the two documents would work together."
He says, "There wasn't a lot of study time so that's what led me to do what I did." He says he's aware the Court provided him a copy of the indictment.
The foreman says he doesn't remember any discussion about the items and he says he referenced the information himself and did not share it with anyone.
He says he believes juror #40 also found a copy of the indictment. "Just she had read that...I never saw a copy." He says "It seems like it might have been said to the group as a whole but I don't recall exactly." He says, "I don't remember anything being said to her related to that." The foreman says, "I have no reason to suspect (she saw anything else) that."
Juror information from the court's Web site. "I can't say for sure this is the exact same...I do not know it is the same...It well could be...I scanned down to it to get to the part that talked about the role of the jury foreperson."
The judge asks him to read, "In this District jurors elect a foreperson...must give every juror a fair opportunity to express his or her views." "I recall reading words essentially to that effect...I don't remember printing it out."
Juror #5 is next. He says no one outside the jury room tried to influence him. #5 now says no one said anything to him or showed him anything outside of what was provided by the court and then changes his answer to yes. He says #16, then changes it to #40. "It wasn't anything she had..just what she said...someone said because of all the information she had she had to have gone on the Internet...she said she went and looked up a book...she went on the Internet to find the book that you had gave the foreman." He says a copy of the book given to the foreman was made and given to the rest of the jury by the court. "That was all that was said about it...there was only one copy...before you gave us all a copy."
"That was all she said she's done..she just said she looked at the book you gave the foreman."
He says he never saw her bring anything in to the jury room and he is not aware of any other extraneous information.
Juror #68 is the next witness. She is a female. She has no documents in her possession. She hesitates, the judge says is there anything you want to tell me, "I believe #7 read something about how to go about what we were doing...I don't know how it came about...I just know he was worried about what we were doing and wanted to better go about the process." She says, "I had heard he was worried about being the foreman and wanted to do it to the best of his ability...I neve saw anything..." She says she never talked to anyone who says they saw anything. "He just stated he wanted to do a good job and he wanted to know what a foreman does...maybe three or four minutes."
She says no one brought any outside information in. She is excused and the hearing is about to end.
The judge asks for objections. Mr. McDonald says, "I'd like to take a couple of minutes...and outline areas we thought should have been covered in greater detail...Juror #66 started to talk about a conversation with #7 and the original language led me to believe it was right after the deadlock...alround the time of the Allen charge...That was the time I stood up and asked for a sidebar...we obvious have contradictory testimony...what's more important is the timing of the extranwous evidence coming in...As regards Juror #40, there were lots of questions that came to mind during your honor's examination...how did this particular juror know to go to the Middle District's web site...what searches were conducted...it seems odd to me a layman would go directly to the Middle District...what else was read on that...we did search and couldn't find it...I understand your honor took it down...but the general instructions on the web site indicate there are rulings of the court on that web site...did she even see or run across any of your honor's rulings when she was looking."
The judge says, "There was a link to the indictment...that's the only document on that Web site...no other documents than the PACER account. On the summons it has the court's Web site so they can look up other information and their directed to look at that from the questionairre."
"Now we do have two jurors #40 and #7 that have downloaded indictments that are substantially different from the indictment that went to the jury...Quyickly, still on juror #40 there were other jurors who mentioned that she at least knew there was a daily record of the trial.. I would ask that your honor have her confirm or deny to what juror #30 testified. Back to the indictment...was this the only copy she ever had...did she make notes...of course it gets a little bit blurry...I thought I lunderstood jurors to testify they had seen documents with notes on them...Just for the record motions have been filed under seal...I want to make clear for appellate purposes Gov. Siegelman has adopted motions filed by Scrushy's counsel under seal..." The judge says if McDonald wishes to articulate things being adopted he will give him until the 27th. "As regards juror #40 we would have asked them to authenticate any e-mail that could be attributed to them...you made it clear you didn't want to get into other issues related to the e-mail...we are preserving our objections...this would have been the best time to authenticate."
"One e-mail that comes to mind in particular is the one in regards to the sentencing...you asked about that...for us to confirm or deny whether any of these e-mail addresses belong to them...either what we have is bogus e-mails or folks who don't remember e-mails were sent..at this time I would resubmit our request that the court try to authenticate...I understand your honor has many different issues in front of it, the 6th amendment issue should be preeminent at this stage...I would request that juror 40 respond to testimony from #66, 30, and #5...give her a chance to explain and reconcile that with the testimony she gave."
"The best evidence would have been from the computers...particularly the conversations occurring in the e-mail before the case was even given to the jury...the only way to reconcile is to take the ISP...others to obtain by the court to preserve the evidence..."
Mr. Leach is up for Mr. Scrushy. "Our number one objection is there is corraborating information out there which the court has denied...we suggest by getting ISP providers..the court would know what information was out there and then question the jury...so we object procedurealy that the court did not conduct that before this hearing...we ask that you bring back in #5, I think today he was struggling to understand the courts testimony...his prior testimony and the testimony taken in chambes....he was struggling today and I would ask you walk him through some things...he spoke in the past that his affidavit was accurate...we ask that each juror be asked in chambers what e-mail address and ISP, there are e-mail addresses unacertained right now...I know one side of that communication I do not know the other side...that particular e-mail is something that needs to be looked at...I jusst don't know until we ask those questions in terms of what e-mail addresses they were using..Specifically there's one side of an e-mail if it is authenticated...what was the nature of that communication...I would ask that you bring that juror back...4 out of 6 jurors indicated Internet searches had occurred...because those are consistent with two jurors in that case the judge should subpoenae the ISP what was searched what was downloaded...The overall quesitoning from the court in one respect misses the focus...it's not just about what may have been downloaded and carried into the jury room...what did they assimilate and carry in whether there was paper or not...what information was out there...was it down there."
I don't think I can ask that says Judge Fuller. I'm prohibited from asking "Did it having any impact on your deliveration."
"The point I'm trying to make judge is volume...I think one of the things you would find is if that kind of daily information was occuring...you could then find out what kind of effect it had on the deliberative process." Juror X said materials were pulled out of #7'spocket..." "We would specifically ask if there has been any contact with each other leading up to their testimony...to me there is a conflict with regards to Juror 66..if I'm not mistaken #66 says #40 had a copy of the indictment with notes... I don't believe it has been ascertained if those notes are present herre and if it contained information extraneous to the case. I think Juror 30 said Juror 7 told that juror there was daily reporting of the case..Judge 66 testified Juror 7 looked up information on a defendant that has been acquitted...this again shows the problem with defining the scope of information pulled off the internet...we supplied an affidavit from an expert to explain how that information could be harvested by the court...Two jurors supposedly went to the same place to get a copy of the indictment..."
"Tying into McDonald's quesion and the Court's Web site...did either of them open a PACER account...Your honor I believe the search experts would show all thatinformation through the ISP provider...all jurors should have been asked whether there was text messaging or e-mailing..."
"we do have at least one e-mail which has to do with extraneous information...I suggest respectfully that you should make inquiry...Judge one thing that is unclear to me...where and by whom did they receive copies of the indictment, juror service pamphlet..I think the testimony is the pamphlet is on the Web site...If I remember the affidavit of juror #5 that was requested and provided...it could be that information was provided by the foreperson..." "Or that juror #5 could be mistaken," says the judge.
"It was not an exhibit the court provided to the jury," says the judge. "Finally in terms of reasonable investigation of this court...based on all the jurors that have talked about Internet searches there can be little doubt there were internet searches..whether we get access or not...we respectfully request the court go to the sources outlined in our sealed motion.."
"If I'm not mistaken notes taken during the trial were not available to jurors outside the courtroom...with the possibliity those notes came from her research...Juror 66 testified that Juror #40 worked on the indictment she downloaded over the weekend...#40 also testified she wanted to work on it over the weekend...if it is over the weekend what would be her source of the notes."
The government's Mr. Feaga. As to Mr. McDonald, "Mr. McDonald says Juror #66 should have been asked more detailed questions...it's our position the court asked detailed questions and there was no need to ask any more detailed questions of Juror #66...we don't think it odd that juror #40 would get to the Middle District Web site...he said that other jurors said 40 took notes and wanted more questions asked about what was on the notes...the court asked if anything was brought in that would be considered extraneous information...we don't know how the court could have been any clearer...the court gave #40 the extraordinary step of asking her for anything and everything she had..you would have never satisfied these defense attorneys or their clients..saying you should ask about these e-mails...they have no idea if they were accurate ...they have a published press account down in Mobile where #40 disavows knowledge...as to "penatlty too severe" e-mails the court asked...the court's questions more than adequately cover that..."
"There is another very important issue...the right of the public to a fair trial, the right to future fair trials...the last thing this court wants to do is to tell every juror that
the very criminals that they convicted. We think the court handled that very well.
"Mr. Leach says they were denied the right to corroborate and impeach these jurors..so they could corroborate and impeach the testimony...and now these convicted criminals want to come in here and suggest they have the right to interrogate these citizens...I guess they want you to take the affidavit obtained in a highly questionable fashion...the lawyer said she went back up ther because she didn't think the first one was good enough...important to give them some argument."
"We believe these people were telling the truth...we would submit they told the absolute truth..Your honor...juror 66 said juror 40 conducted research and had notes...we had what we could get...they don't exist...40 brought what she had...nothing was brought in as was testified to...the information about Juror & looking up info on an acquitted defendant...the court asked and the answers were they had not...Mr. Scrushy wanted him to bring up the fact 38 said someone told her you could get a copy of jury instructions off the internet...Mr. Scrushy said the notes should be inquired into and we object to the court going in. j We think the court raised an extraordinary examination...a serious question about obstruction of justice in this case...King Solomon once said there are two things that will never be satisfied...we would submit a third one, attorneys that are trying to get..."
"The court has conducted an inquiry...these issues that are raised in these motions to not merit relief they seek...the court has done all that it needs to do or should do and should render a dexions."
I agree that none of it is OK. I think the defense has a right to ask for preservation of the evidence, and I think the court will find that the jurors did much more research via the internet than they have admitted to. The history on the hard drive of their computers should show what they viewed online and I bet it could be pretty damaging to their testimonies today. I hope to see this lead to more regulation of the internet and the use of it by juries. I think the internet interferes with a person's right to receive a fair trial in these instances. The guidelines should be more specific and presently they are not.
Posted by: mobile reader | November 17, 2006 at 07:19 PM
It is true that everyone, including jurors, are constantly exposed to the internet. That does not mean, however, that is is OK to go do research on one of the Defendants. There is a big difference between seeing a headline on al.com and googling defendants to see what you can find out about them. Also, it seems to me, though this might not be a big deal, that the jury foreman should have asked Judge Fuller for more instructions on how to be a jury foreman (or for where he should get guidance) than to go surfing on the internet. They are acting like he had this authoritative source on how things should be done because he got it off the internet (but that said, i doubt it would change anything substantive). I think more is going to come from all of this either in this court or at the 11th circuit. I don't think all of this passes the smell test.
Posted by: pt clearer | November 17, 2006 at 05:27 PM
The internet use by jurors is becoming a source of questionable ethics in many court cases around the world. If the judge did not instruct the jurors not to use the internet then how can a juror know that it is not okay? It seems to me all along that the Judge's instructions to the jury have been the consistent source of confusion and error. In addition, the handbook for the Federal Court does not address use of the internet along with the advisory on media exposure, etc. That in itself is an outdated mannual that is in need of updating. If anyone thinks that a juror can avoid exposure to information from the internet pertaining to the case while they are serving on a jury, well, that's just unrealistic. These jurors apparently had constant use of the internet and were exposed to lots of extraneous information.
Posted by: mobile reader | November 17, 2006 at 04:15 PM
Interesting testimony. Seems like there are some contradictions, though it is hard to tell how bad they really are. Based on what Parkman said, it does not seem to be that big of a deal if you download an indictment. However, looking up information on one of the defendants about how long he has worked somewhere seems to be a really big deal (though they say it was one of the defendants who was acquitted). But still, it seems like if that juror felt comfortable doing that kind of research on the csae that there must be other instances where information was obtained from the internet. I have not clue what, if anything, happens next, but it will be interesting to see.
Posted by: pt clearer | November 17, 2006 at 03:55 PM