This phase starts at 3:30 or there abouts. "Before you begin this is one of those pesky questions the judge both gets to answer and has to answer....under the Bail Reform Act...Judge Fuller made the determination he was not a danger or risk of flight...on a petition for revocation of someone's release....the court must make several findings one of which is there is clear and convincing evidence there is a violation of release...it is not at all clear to me that 3148 is not clear to me so that's my first question - who has the legal burden of proof and what is the burden of proof?...Mr. Perrine you're the legal expert." Perrine says Scrushy hast to prove. The judge says 3148 puts the burden on the U.S. "It's not our burden because it's a privilege that the defendant is out on release...," says Mr. Perrine.
The judge tells Perrine he has put the cart before the horse. Perrine says Scrushy was restricted..."He was going further than the court allowed...the probation officer testified..."
"It's clear to me that Mr. Burton is geographically challenged when it comes to the state of Florida," says Judge Coody. "Even if he did, how is that clear and convincing evidence?"
Perrine: "His testimony was this defendant was to stay in Orlando every night...He was still supposed to spend every night in Orlando and it was clear...at nighttime Scrushy was supposed to be at the Saratoga Springs Resort...he knew he was not going to be there..he made reservations to get a rental van ..."
"Why doesn't the evidence support the finding that Mr. Burton assumed Mr. Scrushy was to spend every night in Walt Disney World...especially when Walt Disney World is 250 miles north of Palm Beach...," says Judge Coody.
Perrine: "By no means did any officer of the court give permission...."
Judge Coody: "Why isn't it your burden Mr. Parkman? ...I don't think he meets anybody's definition of a danger."
Parkman, "I don't think it's going to come as a surprise that I think it's the government's burden...the judge put that Scrushy by clear and convincing evidence he was not....that finding was established for the last 6-8 months...I think this is the smoking gun...the government files a motion to revoke...so I think that places the burden on the government..."
Judge Coody: "Is the burden clear and convincing? I have competing statutes and they are not clear with respect to revocation..."
Parkman says "Initially the burden is on the defendant...once that takes place and a period of time passes...it then becomes their burden and it should be the same the defendant had to show...not just come forward with an accusation...."
Judge: "...What the statute says where clear and convincing evidence the person has violated...but it goes on to say if there are conditions that will ensure the presence of the defendant the court can modify those conditions...if the claim is modification instead of revocation....hasn't the government met that burden....don't I have the right to modify those conditions?"
Mr. Parkman agrees the judge has that right.
The judge now wants to hear what he ought to do and why.
Mr. Feaga: "I know the court will be glad to know I'm going to be brief...it was very revealing...what he's asking the court do do is put him in charge...he's telling you if you make them do it his way...everything will be okay...Mr. Scrushy is not going to be able to abide by the directives of these probation officers...he told the court those probation officers lied to the court....about what happened...he got up on the stand..."
"Why isn't it a better characterization that they misunderstood instead of lied?" asks the judge.
"What I'm really confronted with is the competence of probation officers...there are varying degrees of competence..He is not the typical defendant...And I ought to consider that...."
Feaga: "Mr. Scrushy traveled to go to Orlando Florida for eight days. Mr. Martin says she didn't give him permission to deviate...Mr. Burton gave permission to go to Ocala...He had an obligation to tell those probation officers..."
Judge: "Why did he have an obligation to tell them at that time?"
Feaga: "It's inextricably woven with their ability to supervise him."
Judge: "Frankly it ought to be unreasonable for a probation officer to tell the defendant he can go to Ocala and West Palm Beach....So what we're really arguing about is he went 70 miles away from where he was supposed to be?"
Feaga: "No. ....the only reason that boat didn't go out in the Gulf was because the weather was too bad...he got on a boat fully capable of taking him outside the jurisdiction of this court...he did not obey the conditions given to him...and moreover it's their ability to supervise him...we would suggest the evidence is he's going to do what he wants to do and then he's going to come in here and tell the court it's confusion...it's not reasonable....for him to put that before the court...how can the court ensure the defendant is going to be able to be supervised...we would suggest to the court....the court doesn't have any way of doing that...if the court determines that is not the right thing....then the court ought to do what the probation office asked of the court....not to adopt the method he wants to come up with next...I don't think anyone can reasonably expect them to supervise a defendant with only what is in writing....the way for this court to know where he is at all times is to modify the terms and conditions...but it's our belief his actions...his testimony was perjurious and untruthful that he should be revoked ..We believe he is a threat to flee, we believe this was a test...there was some fortuitousness in it...just from some of the questions we know he is curious to find out...we believe he is a threat to find out....that boat might have been out in the Caribbean and Mr. Scrushy might have been gone...he should be revoked...however if the court decides not to do that, put the electronic monitoring on him...."
Mr. Parkman tells Feaga "Good Job," then "I would like to begin with a rendition of what I believe the evidence shows. "I believe there becomes a comfort level ...when people have the opportunity to talk and...I believe when he says Mr. Scrushy can't follow instructions...and he lies...I think we need to look at a history....We've heard unequivocal testimony he's taken 10-12 trips....during these trips not one problem has come up...not one - Zero...he's made all court appearances...everything he has ever done in his past has not been that he can't follow the rules but that he has followed the rules...why was this so different in this case...I'm not here saying probation officers are not lacking...everything Mr. Scrushy has ever told me about him is kind words...Tamara Martin...I've known her years...great lady...Ms. Martin gets a call from the FBI and says it looks like he might be in Palm Beach what have you got...she looks at the e-mail that says Mr. Scrushy is going to Disney World and that's all...once she hears he's away from Disney World the light goes off..it would with anybody...she files it...she claims he didn't have permission to go anyplace else...He's supposed to be able to rely on what Mr. Burton says...He goes back to him and tells him where he's going...has there become such a comfort level ....he just went to Miami in October 2006 and went down there to visit his attorney...it all of a sudden comes out Mr. Burton says I told Mr. Scrushy he could go to West Palm Beach...I have no doubt he thought they were close...every action Mr. Scrushy took was not one of hiding...."
"Scrushy was very coy in the telephone conversation with Ms. Martin and that's troubling to me," says the judge.
Parkman says Scrushy answered the phone and was asked how's it been. " Ms. Martin said I didn't want to go into any detail...".
Judge: "Mr. Scrushy acts like he has no responsibility...he has been convicted of a felony...it's not like oh boy they didn't ask me the right question...he forgets he has to be not just truthful ...he has to be 100% truthful...it's troubling to me he took advantage of a question that was not asked...not good advice when dealing with the probation officer...it evidences an attitude he ought not have...the real question I have to answer can I trust somebody...given that kind of attitude toward the probation officers?"
Parkman: "When he talked to Tamara Martin she did not want to give anything away that they were following him...."
Judge: "If he already knew that, why wasn't he more forthcoming...?"
Parkman: "We're asking him ...to predict what the questions ought to be....I think in his mind it went not I'm not supposed to be here...but when am I supposed to be back...they were trying to determine if he was going to flee...he never did anything to indicate (he was going to flee) you trust somebody because of what the track record has been....if Mr. Scrushy was going to run it wouldn't have been on this case it would have been in Birmingham when he was facing 650 years...he was on an airplane that had plenty of gas...he didn't do that...he's ended up going through civil case after civil case $55 million he had to pay...he's going to put the money in the bag and take off...not keep fighting these cases...when they go through his house ...he's going to leave some indication of leaving...if you're going to flee you don't go talk to your attorney and have a two hour conversation..not this time...if he was going to do this...I made a mistake, Art said he had to be in Disney World with my family and I told him that was okay."
The judge denies the motion for revocation. "Left is the petition....requesting the court modify the conditions of release and I find the petition is granted....I will enter a written order...the modification is this if Mr. Scrushy travels outside(the Northern and Middle diistricts) he must first obtain and wear a locater device, 2nd Mr. Scrushy is to provide a detailed written itinerary...3rd he shall not use any non-commercial travel without permission of the court...Mr. Scrushy you are a convicted felon....the court will not tolerate deviations from the requirements the court has placed on you...I want to remind you that your responsibilities when dealing with probation officers of the court...you must take the responsibility...do I make myself clear...We will be in recess."
After the hearing there was an interesting discussion related to where Selma was located. It appears Selma and Wilcox County are in the Southern District so are technically outside Scrushy's area of travel. Scrushy's attorneys said they may ask for that to be included in hte areas he gets to travel to. The probation officer said there would be a map made. Both sides seemed to be trying to work together to prevent future problems. Parkman said he would submit the itinerary to both offices and he wanted Scrushy to sign it.
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