Courtroom Chronicles

Afternoon Testimony Starting

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."

Lunch Talk

Well during lunch some interesting comments from the peanut gallery.  While Scrushy attorney Art Leach says he's reserving comment until the end of the day. Scrushy's new old attorney Jim Parkman gave his view of the day's events so far.

Parkman said during the lunch recess, "Downloading the indictment is not a concern.  It's what went with it and that's what the concern is and we'll see what other jurors have to say."  Parkman says, "That means other information that was gained that they filled in to the indictment as to what the evidence is...that is my concern."

"It did come out,"says Parkman,"It came out with some of the jurors about bringing in information and how they worked in some of the facts with the indictment.  That's what's a concern of mine.  I don't know about the judge, but that's my concern."

Parkman says he came back to Montgomery because he "missed everybody.  I missed being around all the action.  Isn't this where all the action is?  He says if there is a new trial it's no contest as to who plays the good 'ole boy between him and Terry Butts.  "I'll handle it...I'm hoping we get another shot at it." 

Asked by a Birmingham reporter if he would do anything differently from the first trial, Parkman says, "Yes.  I can't go into that.  That would give out everything but I would look at doing things differently...I haven't gotten into the all the evidence yet, but from what I've heard, I've listened to you (FOX) and WSFA and what I'm seeing leaves me some doubt about what really happened."

More Juror Testimony

Juror #8 is now up and is a male.  #8 basically has no knowledge of extraneous information in the jury room.  The judge says he has heard from other jurors that the foreperson had discussed information from outside with the jurors and asks if anything was discussed with #8 and  #8 says no.  He has been excused.

#30 is the next juror.  He says there was a discussion "among ourselves" about possible exposure to extraneous information.  #30 says #40.  He says,"The juror just said that that the whole trial was on the Internet daily."  He says "This was during the whole trial."  "She just said that the trial was on the Internet."  He says the juror did not disclose any of that content to other jurors "to his knowledge."

When asked if anyone else had been exposed to information he said the thought #7 had knowledge of the Internet.

"30 says, #7 was "dictating and briefing and doing it in a court like style.  He was running it like a court."  He says  #7 wasn't acting inappropriately.

The aforementioned Juror #4o accused of surfing the Internet is up.  She says she was not influenced by anyone nor did she discuss with anyone outside the jury room.  She says, "I saw a headline on an Internet, I did not read the article but did see the headline."  She says she thinks it was on the Montgomery Advertiser, she says it was after the time Faulkner got their accredidation.  She says she did not read anything else.

The judge says she had the right to look at the Internet.  She says she didn't look at any other media sources.  She says she doesn't recall what the headline was and says she did not discuss anything with any other juror. She says she did not attempt to independently verify anything about the case.

She says "I do not recall it being discussed in my presence."  This in reference to Juror #7 and discussion of foreperson duties.  She says she brought to the court some documents.  A manilla folder a copy of the subpoena and some other documents CE6A.  "It is a copy of the indictment ."  She says she got the copy off the Middle District web site.

She says her copy is not different.  "I just thought that it would be nice to read the indictment...you don't get the opportunity to sit and read a document of this length.:  Shd says she did not bring the document in, but she may have mentioned that she had seen a copy of the indictment on the Web site.  She says she talked about it maybe a minute.  She says no one questioned her.

She says she may have read the document one time because she was tired when she got home.  She says "I never brought any document into the jury room.  I never saw anyone bring any documents into the jury room."

"I didn't hear anybody talk about anything like that - no."

Court in recess till one.

Arrivals

Looks like Scrushy attorney Les Moore gets the early bird award today as he is the first attorney to enter the courthouse.  Siegelman attorneys Vince Kilborn and David McDonald are entertaining the press corps and Jim Parkman has just entered the courthouse while the press was engaged with Kilborn.

Terry Butts is now entertaining the media and Governor Siegelam has arrived.  Leslie Scrushy has arrived with her husband and seems to be doing well.  Jim Parkman has brought me up to date concerning his trial in LaFayette and we'll bring you more on that later.  Parkman says he's afraid he "might just have to sit and listen."

Judge Fuller has taken the bench.  No sound yet.  The time is about 8:44 a.m.

The judge is talking about motions and his discretion as to the approach of the hearing.  The court will decide whether extraneous prejudicial information was brought in.

The Court will conduct the hearing.  Subpoenas are under seal but will be provided to counsel.  The witnesses called are the Court's witnesses.  He does not anticipate anyone else doing the questioning or hearing evidence.

Judge will not allow followup questions this time by the attorneys, but the Court will allow counsel a brief time to enter objections.  Not intended for argument.  This is a limited opportunity to address the court's proposed questions to the witnesses. All testimony is subject to perjury rules.

The judge will now briefly go over the questioning he expects to conduct. The judge says he will first advise witnesses about using only juror numbers.  After that is explained, he will make the subpoena a court exhibit.  He says they will have a very good idea of who the witnesses will be.  He says he will explain to the jurors the ground rules and tell them they are not here to be harrassed, but only to find the truth about the deliberative process.

The purpose of today's hearing is to find out whether extraneous information was brought into the jury process or any undue influence was brought to bear on any juror.

The court's instructions on the law, the facts from the witness stand, or facts from exhibits are the three areas the jury may consider.

He wants the jurors to limit answers to extraneous information and outside influences and nothing else.  I am not trying to get you to testify about discussions about jourors minds...

Date of oath as juror to date of verdict are the inclusive dates of the questioning.

The following questions are to be asked:

Did anyone other than another juror try to influence your thinking about this case or the substantive counts as to each defendant?

Do you have any reason to believe that any juror was subjected to

Did anyone other than another juror attempt to discuss the case with you..?

During the time at which you ...did you view any news...or internet sites.

Did you view any materials from any books or any other source ...during your time as juror.

During the time you were serving, did you attempt to independlty investigate any facts related to this case?

Did you overhear any conversations...related to this case?

Did you view or hear any extraneous information about the penalty that might be applicable if convicted on any charges?

Did you search for any information...as to yiour role in this case?

Did any other jury discuss with you extranwous information?

Did you view any extraneous information?

Did you bring any documents related to extranwous information.

These are a summary of the questions, we'll try to be more specific later.

The judge is discussing the questions with the prosecution at this time however we cannot hear that discussion.  Sounds like Mr. Feaga, but we can't be sure.

Sieglman's attorneys do not object to the question:

Kilborn would like the jurors asked about whether they have heard anything related to Siegelman or Scrushy.  The judge reads question four which refers to any defendant.  Also, Kilborn asks about text messages that the jurors may have received during the case.  Kilborn is also now bringing up emails as possible extraneous information.

"I do not want to deliberate too much about these e-mails," says the judge.  He says only if it is related to extraneous information.  Kilborn says some of the jurors may not understand.

Scrushy - First we don't object to the questions.  We do have some comments.  First judge if I understood lyou correctly you're not going to let us follow up, is that correct?"

The judge says yes that is correct.  He says if he thinks it would require the opportunity he may suspend that limitation.

"Obviously from the defense perspective, we're making a record for the 11th Circuit..."  Leach proposes that they be allowed to hand write their thoughts to make a record for later review.  "In terms of your questioning..what computers they used and ought to be front loaded...I think just the court's awareness of those items..to include text messaging..is improtant in letting the jurors be aware..."

Leach wants questions asked about contact with the press and others.  He wants the judge to look particularly at research be expanded to the period when the jurors got their summons."

Leach is asking about asking at least three jurors about e-mails address.  "Thank you once again for having this hearing today, it is clear you have thought about this process," says Leach.

Mr. Feaga says Mr. Leach is asking for more questions and Feaga says he objects to questions about who they have talked to post-trial, have they been exposed to any extraneous information.  "They are proceeding to go on a fishing expedition."

Feaga says information was obtained under highly suspicious circumstances. "We understand the court wanting to get to the bottom of it."  Feaga only wants the jurors questioned about whether or not they brought extraneous information into the jury process.

Feaga says regarding e-mails the only question should be did they send e-mails.  "I know the court is concerned your honor...We are very concerned about what is going to happen today...but the extensive level of questioning the court is about to embark on...we are on a fishing expedition...is an allegation by defense attorneys going to generate an inquisition of every jury...We are very concerned and ask the court to reconsider..."

Leach's question about extending the time frame is going to be disallowed.  It will only be from the time of the oath. 

Depending upon the responses the court receives the court reserves the right to change its mind about discussing things with the attorneys.

During a short break the hallroom chatter reflected what we were hearing, the defense appears to be relatively pleased with the way the judge has decided to proceed with this hearing.  The prosecution seems not as pleased.  But Judge Fuller says since both sides have objections he feels he is doing something correct with this matter.

The judge is now instructing possible witnesses as to what is to come.  The judge says he is not interested in anything after the verdict was reached.

Juror #22 is the first witness to take the stand.  This witness can be seen in the courtroom but not in the overflow room.  This is a female from the voice.

#22 says she does not have any documents to bring to the court.  The judge reminds her to use juror numbers.  The first question, "Did anyone other than another juror try to influence your thinking about this case..?  No  Do you have any reason to believe...?  No

She says no one attempted to discuss case with her.  Asked about viewing news reports she says she might have accidentally heard something at home when her husband was listening to things.  She says she did not really listen to the content or pay attention to it.

She says she did not read books about the case or attempt to independtly investigate.  "Did you overhear any conversations between persons who were not on the jury?"  No

"Did you view or hear ...about the penalty?  No

Did you obtain extraneous information from any source, joror service generally?  I didn't receive any but the foreperson did receive information and did some independent investigation.

The judge asks if anyone else said anything.  No.  He said he looked up on the Internet what a foreperson's function was and what was required.  This took place after we elected him.  He didin't bring us anything to view.  He just said he looked up as to what his job was.

He just said he looked up to see what he was supposed to do. 

"Is the book...the one the court provided?"  Yes sir.  To her knowledge nothing in the book not provided by the court.

"After we elected him, the next day he came back to say he looked up some information to see what he was supposed to do."  She says he did not show them or tell them anything specifically.

Juror #38 will be the next juror questioned.  #22 has been released.

This juror is a man.  Again, we cannot see the juror but those in the courtroom can.

#38 says he has no documents.  "Did anyone other than another juror try to influence your thinking about this case or the substantive counts against any defendant?"  No.

Juror says he did not read or hear anything about the case.  He says he didn't read anything about witnesses or issues and that he did not attempt to investigate the case.  He says he did not overhear any conversations related to the case.  He says he did not view or hear any information about possible penalties.  He says someone did talk of

"One of the jurors said one of the tv stations had all the proceedings on there and that was mentioned."  Juror #7, the foreperson, is the one who said this.  It was brought up one day about a pamphlet and allegedly the following was said by a juror,"Well you can go to the Internet and get it.  There's nothing on there that we're not hearing anyway," is what the foreperson supposedly said to other jurors.

"He didn't bring up specific details." 

#38 says #7 was the only one who discussed this type of information.

Juror #66 is on the stand.  This is a female juror.

#66 says she read the subpoena but one block of her document was not checked but she doesn't have any documents, but she seems not to be sure.  The delay may be she does not understand what is being said on the subpoena.  The judge is reading the document to the juror. The juror says she does not have any outside informtion.

#66 says no one outside the jury influenced her or another juror.  She says no one attempted to discuss the case with her.  She says she did not view or hear anything in the media nor did she get any books or other materials on the factual issues of this case.  She says she did not investigate.  She says she did not overhear conversations about the case from anyone outside the jury room.  She says she heard nothing about possible penalties in the case.  She says "There was talk about information that was on the Internet."  #7, #40 said they had been on the Internet according to #66.

As to #7, the foreperson, "He said the role of the foreman and just other information related to the process and he may have downloaded ...when he came back he brought in detailed information about how he should consider each one of the charges."  She says it was about the indictment and looked up information on one of the defendants who is not here today, how long he had been with his employer.

She says he "did bring in documents...we didn't see the hard copy but he did bring it in." 

She says #7 spent time talking about it on the second full day about the role of the foreman.  She says he had his hand in his jacket at one point.

She says on the counts of the indictment he researched, #7 had information charge by charge but she didn't see any of the information.  "He didn't read it...but he had it."

She says regarding one of the defendants he spent about 10-15 minutes talking about the defendant that was acquitted.  She says she did not see the information.

With regards to juror #40.  #66 says #40 went to the Internet and put her evidence into the different charges.  She says #40 said she read an article on the trial.  "She said something about it but I don't remember exactly...She said she did talk about the article and made a comment about the writer."

She says #40 looked at the indictment on the District Court web site.  #66 says #40 looked at it over a weekend and took notes on each count of the indictment. 

Time for a new post.

Welcome Back!

Welcome back to the Courtroom Chronicles.  This morning's hearing will be most likely be run tightly by Judge Fuller.  He was very explicit in his order limiting the scope of the hearing to the issue of extraneous influence and its possible prejudicial effect on the jury of the Siegelman/Scrushy trial.  It is clear some of the jurors will be called to answer questions; however, the judge has broad discretion as to how to proceed and we will just have to wait.  If he does what he did at the last hearing Judge Fuller will tell us at the very beginning how he is going to proceed and be very clear with his marching orders to everyone.

The hearing is scheduled to start at 8:30 a.m. and the judge made sure no one would mistake his order this time as an invitation.  The defense table will be full of lawyers again, including a familiar face scheduled to return to the Scrushy defense team and appearing for the first time in this trial-- Jim Parkman.  Something unusual seems to always happen when Parkman is at the defense table, although Judge Fuller is limiting what the lawyers say and do during the hearings.

I have included below questions and answers with former magistrate judge John Carroll who is now dean of the Cumberland School of Law at Samford University.  He has some interesting things to say about the balance Judge Fuller has to keep as he holds this hearing.

Cumberland School of Law Dean: Next Scrushy/Siegelman Hearing a Delicate Balance

BIRMINGHAM, Ala., Nov. 8, 2006  --  Cumberland School of Law Dean John Carroll sat down with wsfa.com for a short discussion concerning the next hearing called by Judge Mark Fuller in the Siegelman/Scrushy case.  That hearing is scheduled for Nov. 17, 2006.

The judge basically it looks like is going to bring some of the jurors in, ask them questions.  From the initial reading of his order it looks like he may accept their denials and not go any further with it and he may not look for any corroborating evidence outside the jurors .  Does this rule out, in your mind, any further independent corroboration that might be out there and is that fair to the defendants if that happens?

"I think Judge Fuller's proceeding logically the way that a good judge would proceed.  The first question was is there any sort of showing that there's extraneous information out there.  He did not suppress the affidavit and said ‘okay there's some showing' and I think this is the right way to go about it.  I think if the defendants had some evidence that there was indeed...I mean they have the affidavits and obviously that juror's going to have to testify that the foreman brought this information in, or whoever he's accusing of bringing it in, and I think Judge Fuller will permit that.

I think he has tremendous discretion about how far to push jurors.  You know the reason why this procedure is so careful is you do not want to open up every trial to bringing all the jurors back in and interrogating them because then no one would serve on juries.  So, he's got this delicate balance between the right of a defendant to have a fair and impartial jury and the right of the justice system to have people serve on juries.  And if you push these jurors too far then that interest is not going to be served."

(It looks like that he has kind of disregarded or at least put on the back burner the issue of the e-mails -my statement)

"And I think that's certainly understandable because the simple fact that jurors happen to talk outside the jury room, while a violation of his order, would rarely be grounds for a new trial, because of this very sort of sacred view that you can't impeach a jury verdict.  There are a lot of things that go on in the jury room; there are a lot of things that happen to jurors in a trial and you can't make everything that happened grounds for a new trial."

Is it possible that there's simply not a lot of case law or any case law out there that pertains to things like e-mail communications and jurors, because the Internet is such, a relatively speaking, new thing.

"I've got to say, I have never seen a case other than this one that talked about juror e-mails as an issue.  There are lots of cases that talk about communication and the only thing that makes this different is the old adage that you're more likely to put things in an e-mail that you wouldn't put in a written document.  But I think inherently people know that jurors probably talk about cases when they're not supposed to - waiting for their transportation to come, that kind of thing, and that's all this is.  The difference is here you have a record of what went on which is a rarity.  Normally if the jurors are talking to one another there's no record."

Speaking of the record, the defendants asked for a preservation order of the evidence, which the judge denied.  When the 11^th Circuit and Supreme Court talk about the duty to investigate things, does this not encompass the court into so ensuring that any computer records of the jury or records that might be relevant to this case for example Google or MSN or whoever are preserved until something can be worked out?

"This is back again to this delicate balance that Judge Fuller has got to reach in this case, and his view of what the showing before him means.  Because again we're back to this if in every case you had an order from a judge freezing all the e-mails of jurors, setting up subpoenas for their Internet service providers. 

There again this interest that the justice system has in having people serve as jurors would be injured.  So, the judge has to decide if this is enough of an indication that there's something really going on that I need to take these particular steps and he's just decided no, that all he has is some e-mails saying the jurors were talking beforehand and jurors may have talked during the deliberations outside the jury room, which is a violation of his order. 

But, certainly I get the sense from how he's proceeding he doesn't think this is serious enough to take the very, very serious step of issuing litigation, I mean issuing holds on all this e-mail traffic and that sort of thing."

Do you think this case may spark other cases like this in the future maybe challenged in a different way because of this e-mail technology, the cell phones and the jury?  The judges are starting to mention e-mails and that sort of stuff.

"I think it may but I think the basic law that currently exists is ...the fact that there's technology involved only means that we have a record that we never had before.  Again, if two jurors over lunch happen to be talking about this case just like these jurors allegedly did in an e-mail, we would never have known that.  It just so happens that somehow they got e-mails and I think again the question is how serious a violation is this.  Is it a serious enough violation to warrant a very intrusive order like, you know, to everybody in the world hold on to all this traffic."

How do you find out how serious a violation this is.  Do you just accept what the jurors say is that where he's going with this?

"Well I think he's going to accept what the jurors say unless there's a reason to believe that he ought not to.  I mean obviously he's got the e-mail conversations, unless there not authentic, so you got that and you got the juror's affidavit and I assume he'll give some live testimony.  But I'm confident if the defendants had a witness that would impeach some of these things that the jurors were saying about this extrinsic evidence, I mean this extraneous evidence, then he'd let the testimony in.

But otherwise, the people that know best are the 12 people who were deliberating this case."

He called some of the evidence presented in defense exhibits speculative and unsubstantiated, but we don't exactly which evidence he was talking about.  Is there a reason a judge would not be more specific about which evidence he was talking about like this?

"There was no necessity at that point to be specific.  This happens like to be a general comment that says look, when we get into this hearing I want to hear some evidence that's substantial and real."

He did say in his order that there wasn't enough evidence in front of the court at this time to substantiate the allegations of a 47.1 violation.  But he did say he had some concerns about the affidavits and whether or not they were credible or not.  He did say that not every case that has extrinsic evidence is there a new trial.  So should we read anything into that - that maybe he's made up his mind where this thing is going?

"He's just really stating what the law is.  The fact that there's extrinsic evidence brought into the jury room doesn't mean you get a reversal.  There's got to be a discussion about prejudice and whether or not the defendant was prejudiced.

So just because, let's take this foreman's book, or whatever you call it.  If there's nothing in there that could possibly have affected the outcome then it's a violation that should not have happened but it's not grounds for a new trial.  On the other hand, suppose for example, something in that book contradicted an instruction that Judge Fuller gave so that you had his instructions but inside the jury room something that contradicted it then that would be a much different matter."

How do we deal with the issue, we talked a little bit about this last time, about once something enters a juror's mind it then enters the jury room, but we're not supposed to talk about what's in the juror's minds, but you have two people saying they surfed the Internet.  The foreman says, aw, I was just trying to find out what the rules are for a foreman and another person saying I saw an interesting headline related to the case and I wanted to know what it said but I didn't let it affect me.  So, how do we get past that?

"The law presumes that jurors follow the judge's instructions and follow their oath which is to only rule based on the evidence that they hear in the courtroom.  In order to overcome that presumption there's got to be some strong evidence that that did not occur and again if for some reason somehow there's a copy of what these people looked at on the Internet and it's much different then what they said that's one thing, but again Judge Fuller is basically required to as are parties to take these juror's answers as the truth."

 

Does it hurt the defense that the juror that submitted these affidavits says, well it was kind of what I wanted to say but it wasn't my exact words.  Does it hurt them at all?

"No, it's just a set of facts that the judge has got to weigh along with everything else.  I mean obviously that's not as strong as probably they'd like it but I don't think that really hurts them.  The judge has got to get all this evidence in front of him and sort it out."

What did you think about the judge coming down so hard on the lack of civility in the courtroom?  I mean, he put the hammer down.

"I wasn't there, haven't been there, but certainly the media coverage about it was that the lawyers sometimes got out of control with one another.  He's right --  there's no place for this yah-yah that went back and forth between these lawyers and I know from my days as a judge you just want the facts.  Give me the facts and I'll rule.  Don't ‘this the other side did this, they were mean to me that sort of thing.  He was acting I'm kind of convinced out of frustration but also you don't need that, you need the facts."

Have you in the past seen legal briefs containing words like bombastic, specious, spurious...?

"Yes, lawyers do it all the time.  When I'm teaching my law students how to write briefs I tell them don't include those words because it doesn't impress the judge in the least and it really makes you look bad.  I mean, attacking the other side - judges hates that."

Put yourself on the defense side for a moment, is there anything that they could or should do at this point in the case that they haven't already done?

"You know it seems to me they're doing the best job they can with what they have.  The problem is this area of the law which is trying to get a jury verdict overturned because of what happens in the jury room is very, very difficult to do.  It can happen, but it's very, very difficult to do because you know the law has got to work all these things out and if you allow in every case an attack on the jury verdict because of what happened in the jury room we're back to no juror in their right mind would ever serve, it would elongate every criminal case ever tried so that's the problem.

They're in the area of the law where the showings they have to make are very, very substantial."

The 11^th Circuit is a very conservative circuit.  Should this case reach that level, based on their previous rulings, if Judge Fuller says I don't see anything here is it more likely than not that they would uphold his ruling?

"Well it really doesn't have anything to do with the 11^th Circuit being conservative or not. It's the law invests a tremendous power in the district court and it's an abuse of discretion standard.  In other words, they would have to show Judge Fuller abused his discretion in ruling on these motions, which is an incredibly difficult standard to meet.  I mean you see opinions all the time saying, we disagree with the way the trial judge decided this case but he did not abuse his discretion and we affirm, so he's got tremendous discretion and the review of his discretion is very limited."

More to come.