Courtroom Chronicles

Closing Arguments from the Scrushy Hearing

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.

Scrushy Hearing Part II

The hearing is scheduled to begin around 1:30 p.m.  The judge is back on the bench.  The witness is Toby Ford another probation officer.  She supervises probation officer Burton in Birmingham.

"I met with him (Scrushy) on March 29...He explained he traveled via a personal jet from Orlando to Miami..."

Do you know of any reason why Mr. Scrushy would have told you he took a plane when he in fact went down there on a yacht?  No sir.

Do you know whether he flew down there or went down there on a boat?  No sir.

"It's important that...he is traveling where he says he is going to be traveling to..."

What day of the week was the 29th," asks Mr. Parkman.  "It's on a Thursday....It was an appointment....It was my understanding Mr. Burton requested the meeting...It was just an understanding he had an appointment that day."

"Here is what I want to show you...here's what I'm trying to get at....you just assumed by your conversations that it was Mr. Burton who asked Mr. Scrushy to come in..."

"My objection is your honor he's arguing with the witness," says Mr. Feaga.

The judge tells Parkman to "move on.  You've made your point."

"We met in the office," says the witness.  You sure? Not the conference room? No sir says the witness.

Ms. Ford says it's not that far between West Palm Beach and Miami.  He had requested to go on one day travel to Ocala...to look at some property in the West Palm Beach area and return back to Orlando..."

"I'm not aware that he informed Montgomery...there was some variance from the initial travel request...as far as Mr. Burton he says he did give him permission to travel to Orlando, Ocala, and West Palm Beach..."

"And didn't give the information to anyone else,"  "That's my understanding," says Ford.

Ford says "He apologized for the miscommunication...He did go into detail as to what he expressed some concern as to what was communicated and he understood that Mr. Burton may have misunderstood him...I was just there to hear the conversation....there was going to be some confrontation...inquire specifically...."

Parkman wants to know about the flight again. "It was toward the end of the conversation when I asked him how he got to get to Miami...he said Donald Watkins took him on his private jet...the entire conversation 35-40 minutes...It was after the first 10-15 minutes we started talking about the specifics of his itinerary...the first 10-15 minutes we just let Mr. Scrushy talk...He said he got a call from Donald Watkins saying he needed to talk to him about some new developments in his case...Well the conversation lasted 40 minutes...He got back on Donald Watkins' plane."

With regard to where he said is there anything today incorrect,"asks Parkman. "He was asked if he moved anywhere on the yacht?" He said no."  Parkman asks if she asked which slip, she says no she did not.

Ford says Scrushy has made 10-12 trips prior to this.   She says this is the first occasion problems have arisen.  She's not familiar with all the specifics.  She says she also knows of no violation in the Birmingham case.

Mr. Feaga wants to know about Scrushy's prior trips and deviation.  "I've only been a supervising probation officer since January this year."  She says Scrushy operated outside the parameters authorized by the court.  She agrees someone found out about it and reported it.  She now says "I have no idea whether it's happened in the past, this is just the first occasion we've had to deal with it."

Mr. Parkman wants to know when she found out what Mr. Burton had said Mr. Scrushy could do?  She says the 27th of March.

Your opinion he violated the term is based on what?  "Mr Scrushy said he did deviate from his plans."

Did he say,"I'm sorry there was a misunderstanding, I thought I had permission," says Parkman.

Ford says, "Scrushy did not have permission to go to Miami...He admitted he did not have specific permission to go to Miami..."

Ford says as far as she knows Scrushy didn't go to Ocala.  She says she nor Burton asked why.  Ford says Scrushy "yes, he did indicate he had gone to West Palm Beach...He met with Donald Watkins...in Miami."

Ford is taken back to the question about West Palm Beach..."He told us he was checking on some property that he has..."

Ford says she nor Mr. Burton asked specifically the property was.  "He said he left on Tuesday and came back to Birmingham on Saturday...but specifically which day I don't know..."

"What he's doing is ...in essence arguing with the witness...the issue here is what was done...and whether or not he was truthful with these officers." says Mr. Feaga.

"It's important because it goes to how Mr. Scrushy says he got permission to go to south Florida...according to him he told them he was going to West Palm Beach," says Parkman.

Mr. Leach's e-mail is objected to by Mr. Parkman #1 under this type violation of sixth amendment right to confront.

Why is the communication before two lawyers a sixth amendment violation?

Even though it's between two lawyers it doesn't get to the exception of the sixth amendment...it took place without us getting into.

It's a given he did not (represent the captain)

Mr. Scrushy by engaging with Capt. Kirtz...has to do with the fact that one of the things he told Mr. Kirtz to represent Mr.

I don't understand what an e-mail has to do with

One of the issues is...whether or not he can be expected to comply with the orders of the court....

Hand me the e-mail,"says Judge Coody.  "This is one of those odd opportunities a judge gets to consider what he will and won't consider after considering it."  The objection is sustained by the judge.

"I find it to be irrelevant...it goes to the question whether Mr. Leach represents Mr. Kirtz and that's an irrelevant fact..."

Mr. Scrushy has frustrated the efforts of his probation officer and others while he's out on release.

Mr. Scrushy is being called to the stand.

Scrushy takes the stand.  Any doubt you were placed on restriction - "to the Middle and Northern District," says Scrushy.

Scrushy says, "I have made a lot of trips 25-30...just the Montgomery case? 10-12...New York, Miami, Orlando, Dallas, Houston, even to the west coast, one trip to the Bahamas, South Carolina...spring break (for the Bahamas)...I went down to a meeting with Donald Watkins the earlier part of this year I don't remember the date....It was sometimes in the last couple of weeks of February...told Barry Burton we were planning a spring vacation...I told him I had plans to visit my father in law in Ocala and that I would also be going to south Florida to visit friends and family to include Palm Beach...to me south Florida means all the way to Key West...."

Scrushy says he was not asked to fill out an itinerary but that Burton told him the trip was approved....he says he was not limited to the Orlando area..."as a matter of fact he knew I was going because I was going...I told him I would be visiting friends and family...I will be visiting around south Florida."

Scrushy says this to him included "all of south Florida...we flew out of Birmingham to Orlando...stayed at the Saratoga springs resort...paid for it on my credit card...."

"I told Ms. Martin exactly what I did.  I told her day by day what I did...never left the canal..never went out (into open water)..."  Scrushy says he was called by Ms. Martin "I was on a cell phone and couldn't hear real good...I didn't catch the name...they asked me had I gotten home...I said no, I was approved to stay until Saturday..."

Scrushy agrees he had "arrangements to fly into Orlando on Southwest flights and out of Orlando on Southwest flights...."

Scrushy says he was not able to get the flight changed from Saturday to Friday. "I received a call from Ms. Martin...she said are you home..I said I have approval to come home on Saturday...that was my communication and my understanding...I'll be flying home...she did ask me if we had a good time..."

Scrushy says, "No she didn't (ask him where he was."  She did say Mr. Burton was out of town and she was making the call for him...I told him

Conference call with "Mr. Watkins, you and another one of my attorneys..."  Scrushy says she talked to him afterwords and to report in.

Scrushy says "for children it was a very bad place to be.  the whole Miami Beach area is not a good area...so we moved it to a nicer area....moved it to Bayside...a place where they could enjoy themselves...."

Scrushy says the entire time he was on the boat he got off the ship,"When we got to Palm Beach it was about dark we did take the family out to a restaurant...we didn't take the boat again until we got back to Miami...I went to see a doctor I hurt my neck...I went to a chiropractor and had my neck worked on...before we left on that Wednesday we went to a couple of places...."

"I flew out of....Donald Watkins agreed if I came to meet with him he would fly me and my family home...number one she couldn't fit on the plane (the nanny) She had a flight out of Palm Beach."

Scrushy says he got back to Birmingham after lunch.  He says he heard from the probation office the next Tuesday..."I need to see you this afternoon or tomorrow morning...I asked if I could do it this afternoon..."  He says he showed up at 4:00.  "She says when did she leave, how did you leave...I told her we drove to Palm Beach told her everything all the way from getting on the plane to coming home...I told Burton everywhere I was going...I did exactly as I told him I would do...and as he told me I could do...the reason we didn't go to Ocala...her stepmother was very sick and had surgery and they were unable to accommodate us...so we didn't go...I told her exactly how I got back...Day by day every place we went..."

Scrushy says the meeting lasted about an hour.  "I told her it was very important I talked to Mr. Burton...and I thought it was important...she acted like she wanted to take some kind of action...she said you have to understand we can only go by what we have in writing...I told her he did give me that permission, discussed it with me...I called Mr. Burton as soon as I left her office...I explained to him I had met with Ms. Martin and ...we need to have a meeting...He said...I can meet with you first thing on Thursday...I was there at 9 a.m....He was there and his supervisor...in his office...First thing I said to him is Mr. Burton you need to tell the truth this is wrong..."

Scrushy says he was not aware of other conversations.  He says he never saw the e-mail and he was never asked to look over it..."I told you I would be visiting family and friends in south Florida...he said I know, but I didn't think you would go to Miami....He acknowledged it..."

Scrushy says regarding flying to Miami, "They never asked me to go step by step...she didn't tell me...Ms. Martin was very throughout and went through every day...I did say I flew back...I never told them I flew there...it doesn't make sense..it's only 40 miles I think....I don't know where they got that..it doesn't make any sense..."

Scrushy says, "I told her I drove a rental van to Palm Beach...I told her I spent the night on the boat...we went to Ft. Lauderdale...because of all those draw bridges ti takes forever...the boat was there it gave us an accommodation....that's where we stayed..."

She asked me how I left, when I got home, did I spend the night on the boat.  I asked to have the meeting and I did most of the talking...I had been accused of something that was not true...I did have approval...I would never have gone to a place I didn't have approval..."

Scrushy said they went through every place in his residence.  "I don't recall the exact date...he had been on another assignment working for someone else...I had talked to a broker about selling the boat..I was told there was some damage that needed to be repaired and I told him I needed to get the boat fixed...people aren't going to buy a boat that's not ready...he told me the first mate had left...we had to deal with that...the other thing was that we were going to Disney World and we may want to come visit with them and spend the night on the boat....it was the week right before we went up...I don't remember exactly...probably 5-7 days...I didn't give him an exact date because I didn't have an exact date..."

Scrushy says he stayed at Disney World while he was at Disney World.  "I believed based on the conversation I had with the probation officer I had permission to visit family and friends in south Florida.."

Scrushy is asked about the Leach situation,"When he called me, Captain and told me that an FBI agent had called him and wanted to meet with him...we talked to him...we had a lawyer to meet with him..my personal observation...was he didn't want to meet with them...I told them to call Mr. Leach..."

Scrushy says Leach is in Disney World today.

Scrushy says the captain "had a fear of meeting them without an attorney...I told the Captain to tell the absolute truth...whatever he needed to do to totally cooperate with them..."

Parkman asks if Scrushy discussed imaginary plans to leave the country, "Never," says Scrushy.

The captain told me since the boat has not been out of the country that every time it's moved you have to report it to customs...when we decided to make the trip..I told him we needed to get the proper approval...he said he had to call them (customs)..."

"We had planned a vacation to the Bahamas...the trial was extensive...and the trial didn't turn out the way I thought it should so we had to bring the boat back...I think the discussion was I just hadn't seen the boat back in a long time and I just needed to check on it...I had not seen the boat in a long time...I just needed to check on it...because it takes a long time to get over there...it's easier to fly..."

Scrushy says he was never on his boat the summer of 2006.

Mr. Parkman says he has one more thing. "Do you recall any conversation with Mrs. Ford about the boat staying in a slip the entire time? No...it never went out into the sea."

Mr. Feaga will get his chance now at Mr. Scrushy.

Sir, how long have you been under the supervision of Ms. Martin?  Since the fall of 05.  Burton? Same amount of time.

In all that time have they been straight forward with you?  I haven't really talked to Ms. Martin except when I  came to get my passport.

You talked to her on the 23rd of March? Yes.

It's your position she's misrepresenting and mischaracterizing the conversation with you?  I did not leave her with that impression...I'm saying she didn't ask me where I was and what was I doing.

You're going to do whatever you want to do and say the court didn't ask me the right thing?  No sir I wouldn't do that.

Did you tell her you were in Miami? No sir.

"I asked them if I could go to Orlando to visit Disney World...and south Florida..."

"I asked for permission to travel to south Florida and it was granted."

"And you knew at the time you were planning on leaving on the 20th and traveling to Palm Beach and to Miami..."

"I did tell them I would be traveling to south Florida...I was not required to report..."

Mr. Parkman says there is a mischaracterization of the evidence.  Judge Coody says I'll let the question stand and sustain the objection to the form.

"She didn't ask me any questions, one question - are you home....if she had asked me the question I would have told her the truth...she asked me quickly...check with Mr. Burton...she said I'll do that...I didn't evade anything...she set up..."

"Do you understand you don't get to decide what the right question is?"

"I can't answer what she doesn't ask me," says Scrushy.  "Sir I was given permission to travel in south Florida."

Are you telling this court Mr. Burton mischaracterized the state of the evidence.  "I told Mr. Burton I would be traveling in south Florida...Miami never came up..."

Did you tell Ms. Martin the boat had not been out in two years..."That's not what I said...that's totally taken out of context...in an hour long conversation...what I was trying to point out to her was I hadn't seen my boat in a while...she asked me when I got on it and I told her the truth..."

"Two separate conversations...you're tying something together that didn't happen."

How should i ask the question?  Anyway you want," responds Scrushy.

"Did you or did you not tell Ms. Martin the boat had been out in two years?"  "That's not what I told her."

"I told Ms. Martin day-by-day hour by hour what I had done..so I think they were confused..."

"I heard what they said...but that's not what I said...they did not ask me play by play...they asked me if i spent the night on the boat..."

"Oh what a complicated web we weave when we practice to deceive? "  Yes sir.

"Is it possible you've forgotten what the truth is," "No sir I don't think so."

You heard Baker testified you had told the boat captain that he was represented by Art Leach and the boat captain feeling loyal to you. 

"I heard him say that."

He didn't cooperate with law enforcement.  Did you tell him not to cooperate....Did you tell him not to talk to the FBI..

"I told him we had a lawyer and to call the lawyer."

Do you know why people need to know where you are...why did you tell him not to cooperate ?

That's not what I said.

Scrushy says it took the captain a while to call him back.

How long did it take the captain to call you back when the FBI came?

Did you tell him to cooperate....? No sir that's not what I said.

Feaga is asking about Donald Watkins.  "That's why you went down there?"  He called me on a Tuesday morning...we tried to set the meeting up on Thursday...Donald couldn't do it on Thursday so we did it on Friday...I went to Miami to meet with my attorney (in answer to a question for a judge)

When you only made reservations for four days how did you know Watkins would call you and ask to see you...?

You heard probation officer Burton...tell you you could go to Ocala.  "That's not south? says Feaga.

"Why did you lie to him about why you wanted to go to Palm Beach?"  I told him I wanted to go check on some property...

Did you hear him say he would not have given you permission to get on a boat?

You know that you wouldn't have gotten permission...isn't that why you didn't ask?  That's not true says Scrushy.

Feaga "Mr. Scrushy when did the captain of your yacht first call you and advise you the FBI was at the Sail Fish Club?"  I really don't remember...it was after I met with Ms. Martin...I don't know the exact date.

Did you talk to your attorneys after you talked to Ms. Martin but before you met with Mr. Burton up in Birmingham..."Mr. Parkman was out of town...I don't believe i had a meeting with them..I may have talked to Art Leach but I don't remember..."

Mr. Feaga again asks the question showing Scrushy the letter.  "Mr. Parkman was out of town...but I may have talked to Mr. Leach...I can't tell you...I may have had a phone call...I'm not 100% sure...I probably talked to them after I met with him..."

Did you consult with your lawyers "I told Art i felt I needed to clarify the conversation I had with Mr. Burton..."

Was he telling the truth?  Some of the events are in this letter exactly as he said.  I think Palm Beach is obviously in south Florida.

How was the weather?  Horrible.  How was the weather in the Gulf?  Probably horrible to.

Point being if you wanted to go out into open water on that trip you couldn't have gone?  It was an ugly week says Scrushy.

Feaga is asking about customs.  Do you know whether or not your captain was notifying customs he was going to have a convicted felon on the boat, he gave them my Social Security number..we gave them all the notification required...

"Is that all you need to do ...is that sufficient notice?"  Do you consider that effective notice to the U.S. Probation Office..."I'm struggling with what you're asking me," says Scrushy.  I told him He knew about it...Miami is in south Florida.....

"Do you consider that effective notice?"  "I don't think reporting to customs has anything to do with this, if that's what you're asking me..."

Mr. Parkman is back up..."In talking there's no doubt that Mr. Burton was very much aware you were going to go to Disney World, Ocala, and West Palm Beach? Yes sir

Your version was you were going to south Florida..."To go meet with Donald Watkins...to discuss some very important issues in our case..that were new...I wanted to do it on Thursday...but he had to do it on Friday...we met at 9:00

The judge wants to know why Scrushy would take a boat to go 70 miles when you had a rental car?  Bridge after bridge?  why didn't you just drive down...Why didn't you put your family in the van"Because he was going to fly us to Birmingham..."

"I didn't know how long he was going to keep us down there...I didn't see any harm in us staying on the boat..."

What other friends and family were you going to meet?  check on my property, check on my boat, meet with Captain....who are my friends

Why weren't you more explicit with your probation officer?  I didn't have an agenda....I didn't get to go to Ocala...it was cold it was raining I had to go deal with my legal issues.

Parkman "Where does Donald Watkins live?" South Beach.  Why didn't you get in the van and get a hotel room..."To get three rooms is almost impossible, it was spring break..."

"Her flight was out of Palm Beach and then we didn't have room on the plane so we had to get her carted back up...we did not plan to fly out of Miami..."

When you first made the reservations to go who was the only person you talked to ?  Barry Burton.

Never talked to Ms. Martin? Never.

Did he say he would handle it all?  Yes, sir that's what he said.

Even Ms. Martin didn't get the Ocala and West Palm Beach inquiry?  That's correct.

Mr. Feaga is coming back for a couple more questions.

Sir if finding room for your family down at Miami Beach was going to be a problem why not drive down there by yourself?  Do you want me to say I wanted to be on my boat, I did.

Feaga asks if Scrushy wants to change any of his testimony.  Parkman objects to the question word falsely.

You've said at least 7 or 8 times that they testified falsely incorrectly...do you want to change your testimony?  "There were many things that were mischaracterized...obviously they couldn't tell it all the same...I've told the truth...I tell you everything should have been in writing...I'll be exactly where I was supposed to be..."

I remember you being told to be in compliance with the terms of your release?  Now your saying it has to be in writing?

"That's a twisted statement...I'm only saying because there's miscommunication we need to have it in writing...we wouldn't be here today...this is a miscommunication....they're good people and I'm a good man...I'm sorry this has happened but I did exactly what I told that gentleman I was going to do...Mr. Burton said himself he didn't put it in writing..."

Judge Coody wants to know what the purpose is?  "This man can't be supervised..."  "We'll discuss that in oral argument."  Feaga, "I've made my point."

We will take a recess until 3:30 p.m.

New post for closing statements.  will try to clean this stuff up for everyone tonight.

Scrushy Bond Revocation/Modification Hearing

The hearing will get started shortly.  The assembled cast of characters is seated.  The small courtroom is packed.  Judge .Coody is in the courtroom.

The judge is advising Scrushy why he is here.  Scrushy acknowledges he understands.  He has conferred with counsel.  "I deny them,"  Scrushy says to the allegation.  Witnesses are asked to wait outside the courtroom until time to testify.

Agent Keith Baker is the first witness.  J.B. Perrine is doing the questioning.  Baker is asked if he came to know of the violation.  Mr. Parkman objects.  The judge says the rules of evidence are not as stringent.  Mr. Parkman explains to the judge why he objected.  "There's not a jury here and I don't think I will be persuaded adversely," says Judge Coody.

Baker says,"On March 20 I received information that Mr. Scrushy and his family had plans to ...go to West Palm Beach and board his yacht....He was i(in Orlando) at the Saratoga Spa March 16 to March 20...Reservation made March 8..."

Baker is shown a document  listing Scrushy and members of his family.  The stay was to be four nights beginning March 16..."

Baker is asked about page 2.  Judge says while the rules of evidence are not applicable, "You're going over a document that has not been admitted into evidence."  Mr. Perrine asks Agent Baker about how he came by the document.  It was faxed from Disney World...the exhibit is admitted.  Mr. Parkman has no objection.

"The reservation paid in full on March 8, 2007."

Baker says "He went to Palm Beach, Florida...specifically to a place called the Sail Fish Club...an exclusive, private boating club...."

Mr. Parkman objects to the question of how much Scrushy had to pay for membership.  The judge sustains Mr. Parkman's objections and orders Mr. Perrine to move on.

Baker says, "He traveled to the Sail Fish club to rendezvous with the ....a 92 ft boat..."  Arrangements had been made according to the dock master they were notified it would be arriving on the 20th and leaving on the 21st.  It is normally berthed at the North Palm Beach Marina.

The captain according to Baker was called by Scrushy in early March and told to have the boat ready.

Baker says, "According to the captain and the first mate the decks had to be cleaned and waxed...takes about a week's preparation...."

Baker says, According to Capt. Kirtz he received a $2,000 check to facilitate getting the boat ready...it was sent via Federal Express."

Baker says Scrushy and his wife, the nanny and five children boarded the yacht on March 20 at the Sail Fish Club.

The captain makes $69,000 a year to make sure the boat is maintained and is an employee of Marin Corp.

Baker is shown three documents from the Sail Fish Club dock master.  The first page of govt exhibit 2 is a "Transient Docking...firm..."  The vessel is normally moored at the North Palm Beach Marina...Scrushy is identified as the owner of the boat.  Purpose of visit:  "Dinner and Overnight."

There is an invoice Mach 31 showing the docking fees $181.67.  There is a calendar of the dock master from March.  The entry on 20 March says the Chez....is to arrive"

Baker says the dock master is left-handed.  On the 21 March the annotation is to depart indicating the boat left on the 21st March.

Baker says,"After it set sail...from the Sail Fish Club it traveled down the inter-coastal waterway...."

Baker says on March 21 it stayed at BMR - "supposedly a yacht or boating club in Ft. Lauderdale...."

Baker says on March 22 "it left Ft. Lauderdale for the Miami Beach Marina..."

Baker say on the 22 it berthed at the Miami Beach Marina.  On the 23rd it "relocated from the Miami Beach Marina to the Bay Beach Marina...next to the American Airlines Marina...."

On the 24th Scrushy and family went to airport by taxi or shuttle and the nanny was driven elsewhere by the captain's wife.  There are documents from the North Palm Beach Marina being shown to Baker.  Baker is asked about the second page a dockage agreement under Marin Limited for the boat Chez ....

$33,000 rent for a year's berthing at the Marina.  According to the document Scrushy gave authorization says Baker.  Baker is asked about a spreadsheet.  The boat is berthed at Dock 10 on March 20.  They perform docking checks in the morning.  The boat is out of the Marina on the 21, 22, 23.  There is not an X or circle for the 24.  There is a check for the 25th.  Baker says the captain says the boat left Miami on the 24th and returned to Palm Beach on the 25th.

Baker is now shown a series of photographs. Exhibits 4-12.  "These are photographs of Mr. Scrushy's yacht at the Palm Beach Marina."  Mr. Perrine took the photographs last Wednesday.  The first seven from West Palm Beach the last two from Miami.

The boat is registered in Georgetown, CI(Cayman Islands)  Baker is asked where he has learned the boat has sailed, "Nassau, Bahamas anywhere in the Caribbean..."  How far can you go on a tank of gas? 6-800 miles.  approximately 180 miles to the Bahamas.

The third photo0, is a photo of the #10 slip with the name of the boat.  The next photo shows the same #10 on the dock sheet.  #8 shows a white Ford Excursion...the vehicle is registered to Marin Corp.  The captain indicated he was utilizing this vehicle...Gov't Exhibit 11 is a photo of a clothing score at 401 Biscayne Blvd in Miami Beach...like a mall area next to the marina...."My understanding that's where it docked on the 23rd..."  The next photo is the actual marina looking out from the shopping complex.

Gov't 13 is a sales transaction slip.  The judge asks the credit card number be redacted on the receipt.

The document shows Scrushy, Richard M. with his signature above that.  It is an American Express credit card 539.28.  Baker says he tried to talk to the captain,"I originally contacted via his home telephone...he answered the phone...I told him I wanted to speak to him...he said he was represented by Art Leach and would not talked and had been instructed by Mr. Scrushy not to talk to law enforcement...."

Baker later met with the captain to serve a subpoena.  "He said his hands were tied...He indicated his employer told him not to talk...he said Mr. Scrushy had been good to him and he was his employee and everything he said to do he would do...all information that I received was he had not retained Art Leach as legal counsel..."

The judge wants to know when the conversation took place, "Part of it took place this morning and part of it took place on April 4..."  As to the part when his hands were tied, "That part took place on April 4th at his residence..."

John Aaron was representing the captain this morning.  The captain, according to Baker, said Aaron was appointed to him but he didn't know by whom.

Chez Soiree was not at the North Palm Beach Marina in June of last year some time between June 17 and June 18.  The boat next appears on July 1, 2006 at the North Palm Beach Marina.  Baker says according to the captain it was in the Bahamas awaiting Mr. Scrushy's arrival subsequent to the verdict of the trial in June.  The captain received a phone call indicating Scrushy had been found guilty and would not be meeting the boat in the Bahamas.

Baker says "Prior to my contact he had in fact had contact with Mr. Scrushy...'he got wind that the FBI was asking questions around the Sail Fish Club...someone had told..the first mate...and Mr.Kirtz and he called the defendant Mr. Scrushy...."

The judge wants time and place added to the inquiry.  Perrine asks when the conversation took place.  "We first approached the Sail Fish Club April 4th and according to the captain it was before that...It's my understanding that members of probation may have traveled to the Sail Fish Club..."

Scrushy is alleged to have "advised Mr. Kirtz he was being represented by counsel and do not talk...what he (captain) told me this morning was that he was under counsel and do not talk..." This was between March 20th and April 4th the Scrushy conversation with the captain.

The captain said on April 4th he was represented by Art Leach and Scrushy told him not to talk.

Mr. Parkman is up.  "I take it according to your testimony you talked to everybody...is there anybody left you haven't talked to that you felt you needed to talk to?"  No sir.

Are you familiar with the probation officer, Tamara Martin?  Yes sir...first time I talked to Tamara Martin was March 20...we had numerous conversations..."

Parkman:  At anytime was it relayed to you by Ms. Martin she had talked to Mr. Scrushy about this trip?

What was the date she talked to Mr. Scrushy?  Never asked? No says Baker.

"I do not know the date she talked to Mr. Scrushy."

Did he tell Ms. Martin he left on March 16, 2007 to go to Disney World?  I'm not sure what he told Ms. Martin...She admitted he told her he went to Orlando..."

Baker says he did not ever interview her.  Parkman you had numerous conversations and you didn't ask where the boat normally stayed?  I wasn't talking to her when we were down in West Palm Beach.

Parkman reminds Baker he talked to Martin numerous times.  Baker says he spoke to her this morning.

Talked to her on the 20th...Parkman's going through the dates..Baker is a bit flustered.

"How long had the boat been stored in North Palm Beach?"  At least since August 05.

"Well we asked for all the records they had and the produced the records...they didn't indicate they had any (other records)..."

"We find the boat was moved on Tuesday to the Sail Fish Club...Did you ask Ms. Martin if Mr. Scrushy told her? No, says Baker

"Don't you think it would have been important to find out if he told Ms. Martin something different?

"It will come out in this hearing when Ms. Martin takes the stand," says Baker.

We had some technical issues.  Mr. Baker says he does not know whether the captain was asked by Scrushy about how long it would take to get to certain islands in the Caribbean."

Mr. Perrine says Mr. Parkman is "badgering the witness."  Parkman told the judge earlier he is trying to establish there was no attempt to flee.

Baker says had there been time he would have asked the question.

Baker says the captain is available, "If you so choose..you can put him up to just like we can."

Baker says he does not personally know that Scrushy got on an airplane and left Miami on the 24th.

"Did anytime...did the captain...tell you why he didn't want to talk to the FBI...?" "He said jump I'll jump..."

"Let's quit asking what this witness knows or doesn't know...we are straying so far...I am again not impressed by what may impress the jury...attacks on witnesses...because somebody could have dons something....let's move on...gain the information from the people who most likely have the evidence...move on...," says Judge Coody.

Parkman apologizes.  He then asks Baker if Scrushy used an alias or an assumed name,"Not that I'm aware of," says Baker."

He indicated he had paid the attorney and it was not true.  Did he indicate to you, you could call.  It was a general conversation over the phone.  "I don't know if the conversation ever got to me calling Art Leach.  I don't know that I would..."
He would not answer questions about Art Leach,"says Baker when asked whether or not the captain would answer all questions this morning.
"Who's the convicted Felon...? Mr. Scrushy, says Baker after Mr. Perrine asks the question.

Tamar Martin, a Middle District probation officer, is on the stand.  Mr. Feaga is asking the questions.

"I interviewed Mr. Scrushy on Oct 27, 2005 in order to prepare a pre-trial services report...."

"He did remain out...the defendant's travel was restricted to the Middle District of Alabama and the Northern District of Alabama..."

Did Mr. Scrushy have permission to travel to Orlando? "He did from March 16 to March 24...I became aware of that on Feb 21 of this year...Mr. Scrushy made the request through Mr. Burton...Mr. Burton sent the plans to me and I forwarded them to Judge Coody...."

Martin says, "He was given permission to travel to Orlando, Florida...where he would stay at Saratoga Springs resort and spa and travel back to Birmingham on March 24..."

Martin says there was nothing in the request she received from Burton about a request to travel to Palm Beach or Miami.

Martin says she became aware Scrushy "On Monday March...I received a phone call from Agent Keith Baker asking if I was aware the defendant would be leaving on a cruise."

"I became aware on March 21 that Mr. Scrushy had checked out of the....spa..."  Martin says Scrushy did not call asking permission.  "I spoke with him on Friday March 23...I had spoken to Mr. Burton...he had given me Mr. Scrushy's flight plans...he was going to leave Orlando at 10:05 am...Mr. Burton was out of the office so I contacted Mr. Scrushy...I found out he was down there with his family...he implied they were still at Disney World and they would be returning on the 24th..."

Martin says she believes Scrushy was indicating he was still in Disney World, but she says he did not specifically say he was in Disney World..."It was my concern Mr. Scrushy may be fleeing the country...we may not be able to get with him if we needed to take him into custody...."

Martin says during the phone conversation Scrushy did not tell her he had left the hotel in Orlando, but she knew he had already left.  "On Tuesday March 27 he met with me and my deputy chief...wanted to verify where he had been and we wanted to bring him into his compliance with his terms of police...he sated he left Birmingham, flew Southwest, (to Orlando) checked out on Tuesday March 20, went to Palm Beach...got to Miami March 23...He stated he returned by his attorney Donald Watkins' private plane...flew from Miami to Birmingham...."

Martin says there was no explanation of the yacht,"He stated the yacht had been docked for two years and it was not good for it to have been docked for that long..."

Feaga is asking about the records which show the boat was out last year.  Martin says that is not consistent with his statements.  Martin indicates she filed a petition with the court, "basically asking the court to modify conditions of release...."

She says this is a way of "monitoring the defendant when he is out and about and make sure he is in compliance..."

Mr. Parkman is back up.  "Go back...to Tuesday March 27...in your office...had you asked him to come there?  Yes.  He had a black older gentleman with him.  (Did not come in with him)  Mr. Scrushy came in by himself according to Martin.

Martin says she asked if Scrushy had traveled anywhere outside Orlando.  "He stated to me where he traveled for those dates and how he traveled...."

Martin agrees Scrushy told him about the boat.

Parkman asks about a March 23 meeting.  He did.  "I called his cell phone of the number I had...That's the one Mr. Scrushy gave him...'

He answered her call immediately..."Did he ever say, I'm at Disney World?" No he did not says Martin.

Martin did not ask him specifically if he was in Orlando. "So he told you about the flight, the boat,...and how he got back...did he tell you about meeting with Donald Watkins?"  Yes, he did.

Did you ask him about meeting with Mr. Watkins?  No, I did not.

The flight on Watkins plane was direct from Miami to Birmingham.  "Were you aware he called anyone with the probation office...?"  "I believe Mr. Burton called me and told me Mr. Scrushy had left a message on his machine on Saturday."

Ms. Martin says she gets e-mail from Burton outlining "exactly what the defendant's going to do...they're very detailed as to what the defendant is going to do...it said the defendant would be leaving...to Disney World...and would be returning on the 24th..."

Were you aware of any letter Mr. Burton had received concerning this trip? No.  I know Mr. Scrushy met with Mr. Burton..."

Parkman wants to know if Martin asked Burton what Scrushy said,"I probably had tat conversation when we were trying to find out where Mr. Scrushy was..."

Martin says Scrushy stated he had told Burton he might be going to Palm Beach, Ocala,...and people in sooth Florida.  She is not aware of any follow up letter.  "The only occasion I'm aware of is where he met with Mr. Burton and his supervisor....she is not aware Scrushy reported back again last week....Martin says "After I met with Mr. Scrushy on the 27th I contacted Mr. Burton...Burton said the defendant did mention he might be going to Ocala...but there was no mention of going anywhere else in Florida...Did he ever tell you he would be getting on a boat and going to Miami...No, he said he would be going to Disney World and maybe Ocala, nothing about south Florida..."

Martin says she has Scrushy's passport. 

Martin says "It's my understanding Mr. Burton told him he could go to Ocala...but all nights would be spent in Orlando..."

Mr. Feaga is asking questions.  Martin says Scrushy indicated he had permission from Mr. Burton to go to south Florida...Feaga says he also indicated the boat had not been out in two years...yes.

Mr. Parkman wants to know if Scrushy signed off on the e-mail from Burton.  Mr. Burton will be the next witness.  Ms. Martin is asked to wait outside the courtroom.

Mr. Feaga is asking the question.  Burton says he learned in February Scrushy was interested in taking the trip to Orlando..."I had Mr. Scrushy give me some details and I forwarded that to Ms. Martin....that he wanted to go to Orlando to go to Disney World with his family...they would be going between March 16-24 and they would be staying at Saratoga Springs Hotel...Because of Mr. Scrushy's travel restrictions we have to get permission from the court to travel..."

In the e-mail you sent her did you say anything about him wanting to go to Miami...Palm Beach...? "No," says Burton.

At some point in time did Mr. Scrushy say anything about wanting to go anywhere else in Florida?"He did state his wife had family in the Orlando area and...he said that was in the Ocala area..."

Do you know where Ocala is? "At the time I was thinking it was 30-40 minutes from Orland...In reviewing it's about 70 miles from Orland...north..."

"I do not remember if it was before or after I sent the e-mail...I told him that shouldn't be a problem."

"He mentioned he had some property in West Palm Beach he'd like to check on when he was in the area and I told him that shouldn't be a problem either...."

Burton says he just said property,"I told him it shouldn't be a problem...I thought it was an hour's trip from Orlando...that was probably a mistake on my part...but I did..."

Burton says he never gave him permission to stay anywhere overnight other than Orlando.  He says he did not give Scrushy permission to get on a yacht or stay down in Miami over night.  "I did give him permission to go to West Palm Beach...again that was my mistake...it's further from Orlando than I thought...," says Burton.

Burton says he's now aware of some of the details as to what happened.  He says he met with Scrushy upon his return.  "He said that on Tuesday while they were on the trip his attorney Donald Watkins had called him and told him he needed to talk to him about two motions they intended to file...and"

Tuesday of that trip according to Mr. Burton Watkins flew them down to Miami.  He said they flew back on Donald Watkins plane.

Burton says Scrushy indicated they had stayed on the yacht in Miami because they didn't have hotel reservations.  Burton says Scrushy did not tell him he only had reservations in Orlando 15th-20th.

Burton says, "I got confirmation directly from Mr. Scrushy...the previous week I'd been called by Tamara Martin that he had been down in Miami."

"But Mr. Scrushy's statement to you was that he flew down there?" Yes.

Mr. Parkman is back.  Do you recall the date Mr. Scrushy mentioned to you he'd like to take a trip to Orlando.  "I believe it was on the 14th...I believe the e-mail was the next week...."

Then sometime in the next week Scrushy got back with Burton..."He brought in a printout of their Southwest Airlines reservations...at that time he had asked me we'd like to stay the other day...would it be okay if we come back on the 24th...that conversation had to have happened after the first e-mail and I told him that would be fine...I think that e-mail was the 21st (of Feb)

With regards to the e-mail asks Parkman,"Had that time had he made reservations?"  "No, not that I'm aware of says Mr. Burton..."

"I'm not trying to confuse you," says Parkman.  "There had not been in confirmation?"  "I think our first conversation was the 14th.  Our next conversation was th 16th and then I think we got confirmation from the court on the 21st..."

"At the time the e-mail went out..your understanding at that time had nothing to do with Ocala or West Palm Beach?"

"Those conversations did probably take place after we got confirmation from the court," says Burton.

"There were changes by Mr. Scrushy?" says Parkman.  Burton says he did not "see that as being a change in his itinerary...I was thinking that was going to all be in the Orlando area...or to check on property in the Orlando area..."

Burton says, "I did not pin him (Scrushy) down on specifics...I felt they'd make those arrangements when they were there..."

Parkman goes back to the e-mail. "He was already approved by the court from 16th to 24th," says Burton.

Burton says he talked to Scrushy on the phone on the 14th and came to his office on the 16th.  "He just kind of showed up at the office..."

Burton says, "I would guess he was there five to ten minutes."  Burton says, "I have sent some e-mails while he was sitting there...but I don't remember...."  Burton says he doesn't remember showing Scrushy the e-mail or having him sign the e-mail."After he got back he met with myself and my supervisor."

Burton says "We spoke, I don't know that I specifically asked him those questions..."

Burton says, "We probably would have contacted Mr. Scrushy, but Mr. Scrushy actually requested the meeting after he met with the officers in the Middle District...."

Burton says Scrushy told him about meeting with Martin.

Are you sure Mr. Scrushy talked to you about Donald Watkins flying him to Miami.  "He said they crammed himself and his wife and kids on the plane...It was asked originally how did you get to Miami."

Did he write you a letter?  He did. 

In the letter did he ask you and say to you I reminded"d you I had requested to visit south Florida and he (Burton) said, "Yes, but I didn't think you would go to Miami.

Mr. Feaga objects, but is overruled.  Mr. Parkman says he will enter the letter into evidence.

"That's hat it says in the letter, that's not exactly what I said during our meeting," says Burton.

Feaga objects again.  "It was during the course of a conversation that lasted approximately 30-40 minutes Mr. Scrushy apologized for going to Miami he said he didn't know that was outside the parameters of where he wanted to go...he said he wanted to visit family...he said he didn't see it as being a problem to visit his attorney in Miami...I told him Miami was not in the agreement...He said he left Orlando on Tuesday and went to Miami and stayed on his yacht...because they didn't have hotel reservations...."

Mr. Parkman shows Mr. Burton the letter and he identifies it.  Prior to this the judge mentioned a lunch break.  Not a good sign.

Burton says he got the e-mail and then a hard copy in the letter.

Burton then met with Scrushy the following Tuesday for 30-40 minutes.

At any time after you received the e-mail and read it, including to his visit, did you ever say to him what you wrote me in that letter was not true?  I did not...I knew we were going to have a court hearing on it.

Mr. Parkman is finished and Mr. Feaga will not re-direct.  Mr. Feaga says the government may be done.  Mr. Parkman says he needs to confer as well.  Mr. Feaga says we have one very brief witness.

lunch until 1:30 p.m.  We'll start a new post after lunch.  Sorry for the typos. will have to fix later.