Scrushy Files Appeal with 11th Circuit

The appeal of former HealthSouth CEO Richard Scrushy, the entire 118 page brief, can be found here (.pdf).

The day after federal Magistrate Judge T. Michael granted a joint motion for former HealthSouth CEO Richard Scrushy to be brought to Birmingham to be deposed in the consolidated stockholder/bondholder case, in which investors are trying to recoup some of the money lost due to the accounting scandal at HealthSouth several years ago, attorneys for Richard Scrushy filed his appeal with the 11^th Circuit Court of Appeals related to his conviction on bribery, conspiracy and mail fraud charges in 2006.

To anyone familiar with the case most of these arguments are not new. Attorneys for both Scrushy and former governor Don Siegelman have repeatedly in court motions and in the courtroom claimed the evidence " was insufficient to establish that Scrushy’s political contribution to assist the campaign for an Alabama lottery supporting education was made in return for an explicit promise by Governor Siegelman that the "quid pro quo" for the contribution was an appointment to the Alabama Certificate of Need Board. "

The other main issues contained in the court document are: "(1) the failure to give an explicit quid pro quo instruction as required by McCormick; (2) the extensive jury misconduct before and during deliberations; (3) the failure of the trial court to have disclosed its financial interests or recuse itself; (4) the improper admission of prejudicial hearsay testimony; (5) the violations of the JSSA and/or the Sixth Amendment arising from the improperly constituted grand and petit juries."

There is simply too much information here for one post. I’m going to go through only a couple and will work on getting to the other issues as soon as possible.

Attorneys as expected, say that Scrushy’s conviction, first and foremost, "should be reversed" because there "was no "was no evidence of an explicit quid pro quo as required" by the Supreme Court in McCormick v. United States. They argue the case is very simple and clear.

"This case is, in many ways, simple. Five hundred thousand dollars was contributed to the Alabama Education Lottery Fund ("AELF") and its successor, the Alabama Education Fund ("AEF"). The AELF was created to lobby for a lottery amendment to the Alabama Constitution in order to raise funds for education. Governor Siegelman had appointed Scrushy to a term on the Alabama CON Board. Earlier, Siegelman showed a $250,000 check from Integrated Health Services ("IHS") to Nick Bailey, an aide. Bailey asked Siegelman "what in the world is he going to want for that" and Bailey said the Governor’s "response was the CON Board, . . . ."R36-506-07. That colloquy did not establish or even reasonably infer that Scrushy and Siegelman had an explicit agreement that the AELF contribution would beget the CON Board appointment. Without such evidence, and without a jury instruction that made clear the explicit quid pro quo requirement, Scrushy’s conviction cannot stand. He is entitled to a judgement of acquittal, or at the least, a new trial."

The brief quotes the McCormick case, saying that case and the requirement for a quid pro quo (which the government argues is not required) "fits the Scrushy/Siegelman case like a glove and compels the conclusion that Scrushy (and Siegelman) committed no crime:"

"Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, ‘under color of official right.’ To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation.McCormick, 500 U.S. at 272. "

As Judge Mark Fuller said at one point during the trial the whole issue of the difference between a bribe and a political contribution is a "tough piece of ham to slice." Will the 11^th Circuit tackle the issue or will it in the end be up to the United States Supreme Court to decide the issue, if it so chooses?

Another major issue has to do in some ways with the infamous e-mail fairy. For those unfamiliar with what transpired here at various points following the conviction of the two defendants, copies of purported e-mails exchanged between some jurors began showing up September 2006 in the mail of the Scrushy and Siegelman attorneys and eventually led to the bringing of jurors back to the courtroom to be questioned about the issue of what is known as "extrinsic information." The problem, from a lay person’s perspective, is never once did the judge look at any one of the jurors on the witness stand and simply ask,"Did you send or receive these e-mails? " He asked around it.

Attorneys for Scrushy argue, "The most startling evidence of the jury’s exposure to prejudicial extrinsic evidence were in the eight e-mails that appear to have been sent between jurors both As discussed below, the authenticity of these e-mails has yet to be confirmed, despite Scrushy’s repeated requests for the court’s intervention necessary to authenticate the e-mails, before and during deliberations." (For some of the government point of view from past filings click here)

"Six of the e-mails were exchanged between Jurors 7 and 40 and at least two other jurors in the evening hours during the eleven-day jury deliberations. The e-mails, in chronological order, are:" (The links are to exhibits from previous court filings.)

"a. Monday, May 29, 2006 10:41 PM from: [e-mail address containing name of Juror 40]to: [e-mail address containing name of Juror 7]…need to talkl…..!?[first name of Juror 40]R6-467, Ex. 10."

"b. Monday, May 29, 2006 11:38 PMfrom: [e-mail address containing name of Juror 40]6 Juror 30 and Juror 38 participated in the jury deliberations in this case.R29-34, 66.7 The jury began deliberations on June 15, 2006 and returned a verdict onJune 29, 2006. R7-518-14.43to: [e-mail address containing name of Juror 7]I agree some of the kounts r confusing 2 our friends. Chek txt 30/38 still off trak.[first name of Juror 40]R6-467, Ex. 11.6"

"c. Sunday, June 25, 2006 10:09 PM7from: [e-mail address containing name of Juror 40]to: [e-mail address containing name of Juror 7]…judge really helping w/jurors still having difficulties with #30…any ideas???keep pushing on ur side.did not understand ur thoughts on statute but received links[first name of Juror 40]R7-519, Ex. 23."

"d. Sunday, June 25, 2006 10:41 PMfrom: [e-mail address containing name of Juror 40]to: [e-mail address containing name of Juror 7]I can’t see anything we miss’d. u?articles usent outstanding! gov & pastor up s—t creek.good thing no one likes them anyway. all public officials44r scum; especially this 1. Pastor is reall a piece of work…they missed before, but we won’t…also, keep working on 30…will update u on other meeting.[first name of Juror 40]R7-519, Ex. 24."

"e. Sunday, June 25, 2006 10:47 PMfrom: [e-mail address containing first name of Juror 7]to: [e-mail address containing name of Juror 40]great info for our friends% of prosecution increases dramatically.Could not find that when I surfed it.Gov/Pastor GONE….R7-532, Ex. 26."

"f. Sunday, June 25, 2006 11:28 PMfrom: [unidentfiable e-mail address]to: [e-mail address containing name of Juror 40]penalty 2severe….still unclear on couple of counts against pastor &gov.R6-467, Ex. 12."

"g. Sunday, June 25, 2006 11:31 PM from: [e-mail address containing name of Juror 40]to: [unidentifiable e-mail address]proud of u…other 6 kounts most important c.u.n..am[first name of Juror 40]R6-472, Ex. 15."

"h. Sunday, June 25, 2006 11:48 PM from: [e-mail address containing name of Juror 40]to: [same e-mail address as e-mail set out in ¶ (f))...stay focused….remember what judgesaid….have plans for 4th….right?[first name of Juror 40]R6-467, Ex. 13"

The filing says if the e-mails are authentic the jury was " was riven with misconduct; (2) that multiple jurors violated the explicit instructions of the court; (3) that two or more jurors were untruthful in their testimony on November 17, 2006; and (4) that this jury was exposed to highly prejudicial extrinsic evidence obtained from the Internet. Furthermore, the e-mails corroborate the testimony of Jurors 5, 30, 38, 63 and 66 and the affidavits of Juror 5, and show that Juror 7 and Juror 40 used the Internet. There was no evidence admitted at trial concerning potential sentences in this case (R7-518-53 n.35), and the jury was instructed not to consider sentencing. "

Attorneys for Scrushy believe , as they have stated often since those hearings, that the "The district court’s inquiry into the allegations of misconduct was insufficient and the failure to obtain and preserve critical documentary evidence relating to e-mails exchanged by the jurors was fundamentally unfair and an abuse of discretion. At a minimum, there remain significant unanswered questions as to the nature and extent of the misconduct, and this Court should remand this case for a thorough inquiry into the evidence of misconduct." (For some of Judge Fuller’s writing on the juror e-mail question click here.)

"Although the district court ultimately entered two orders denying a new trial (R7-518 and R10-611), a review of the record reveals substantial intrusion of evidence from the Internet and news media into the jury room, and a startling failure of the court to determine and consider the nature and extent of that evidence. Indeed, to the extent that the court inquired into Scrushy’s showing of jury exposure to extrinsic influences (and, at least as to three significant e-mails between jurors, it engaged in no inquiry at all) it did so in a crabbed and perfunctory manner that left critical factual questions unanswered."

Some of the other evidence cited by attorneys as proof of extrinsic evidence making it’s way to the jury, and which has been written about before includes:

"At the November 17, 2006 evidentiary hearing, two jurors admitted that they used the Internet to obtain and download information which they used during jury deliberations. The foreperson of the jury, Juror 7, testified he researched the role of a foreperson on the district court’s website shortly after deliberations began. "

"Juror 7 also testified that he used the same website to print a copy of the unredacted indictment, which he studied at home and on which he made notes, and that he took the indictment copy and his notes into the jury room to help him lead discussions. "

"Juror 40 testified that she used the Internet to download a copy of the unredacted indictment on the first weekend of jury deliberations. She read the indictment at home, but denied having brought it into the jury room."

"Juror 40 testified that "I saw a headline on an Internet site and I did not read the article but I did see the headline." R29-77. She testified she believed it was in the Montgomery Advertiser, and that it occurred at around the time that Faulkner, an Alabama law school, received its accreditation "because that’s what I was looking at." Scrushy supplemented the record with copies of articles printed off the Internet site Juror 40 described. R7-509, Ex. 21. The only news story on Faulkner’s accreditation was on June 13, 2006. Ex. 21B. That same day the website ran an article headlined, "Defense Abruptly rests case." Ex. 21C. That article contained comments by the Acting U.S. Attorney on Siegelman’s failure to present a defense. "

"Juror 66 testified that Juror 40 said that she saw and read an article on the Internet about the trial and"she just made a comment about the writer and the Defendants or whatever." R29-59.In a videotaped interview of Juror 40 by television station WSFA, Juror 40 told the reporter: "I saw one Internet article. So I’ll confess…. It was – it was – yes, it was almost by accident. It was – after I saw the headline, I was, oh, I wonder what that says. But I really did try very hard." R6-467, Ex. 5-B at 24.3. Juror 40 denied bringing her downloaded copy of the indictment into the jury room. R29-82. Juror 63 insisted that Juror 40 brought a document into the jury room which Juror 63 saw Juror 40 take out of her coat and hold in her hand. "

"Juror 66 testified that Juror 40 told the jury that she went to the court’s website, downloaded a copy of the indictment and "highlighted some points on it and I guess like took her notes on it, put her evidence, plugged her evidence into the different charges and different indictments." R29-59.

"Two jurors testified that Juror 7 and/or Juror 40 appeared to have read the daily blog that television station WSFA was running on the trial proceedings. Juror 38 testified: There was one of the jurors [Juror 7] said they had been on the Internet – well it was like one of the TV stations had all the proceedings was on the Internet, you could read it and that was mentioned. And that’s the only thing that I know of that they [sic] had read what was going on in court. I mean it wasn’t anything else besides what had happened here.R29-38. "

"Juror 30 testified: " [Juror 40] said the trial – the whole trial was on the Internet daily, you know, so that’s why I assumed she had probably read through it on the Internet." Juror 30 testified that "[t]his was during the whole trial…. [b]efore deliberations began." R29-72. "

Attorneys for Scrushy argue that with contradictions in the testimony the " court did nothing to resolve them and simply accepted, without any further inquiry, Juror 40’s naked denial at the evidentiary hearing that she had read anything but the headline. Juror 40 testified that she was unaware of any extrinsic information on the possible sentences in the case (R29-79), but her testimony was contradicted by theexchange of e-mails between her and another juror expressing concerns about"penalty 2 severe." R6-467, Ex. 12. Yet the court did not ask Juror 40, nor any other juror, a single question about any of the e-mails, nor try to resolve this conflict in the evidence."

"At the hearing, despite requests from both Defendants and the (Government R29-12, 16, 20), the court did not ask any juror if he or she had sent or received any e-mails to or from other jurors, nor did it inquire in any manner into the copies of the e-mails which Scrushy had submitted as exhibits in the motions. R29-27-143.The district court’s refusal: (1) to assist Scrushy in obtaining the documentary evidence that could have authenticated the e-mails; (2) to at least obtain and preserve the evidence; or even (3) to order that it be preserved by the individuals and entities that possessed it, was a disturbing abuse of discretion. And, because that evidence may have been lost or destroyed during the intervening period, the court may have deprived Scrushy of evidence that would require a new trial.

The argument related to the preservation of evidence is helped by the citing of the Guisti cases from Massachusetts. While the case involved the e-mail interchange between a juror and two lawyers from outside the state. In the first case the appellate court "[remanded] the case for the judge to conduct a voir dire limited to determining the following: whether the juror was in fact the woman who posted the two e-mail messages; if so, whether she received any responses; the contents of any such responses; and whether the juror communicated the substance of any such responses to other jury members prior to or during deliberations. "

Then the defendant appealed again " "alleging, among other things, that the trial judge had unduly restricted the scope of the hearing." Commonwealth v. Guisti, 449 Mass. 1018, 1018, 867 N.E. 2d 740 (2007) ("Guisti II ") (referring to prior unpublished opinion)."

And the appellate court asked the trial court to do more stating: "The judge shall determine the appropriateness of appointing an expert to examine the juror’s computer, to determine whether any e-mails the juror may have received in response to those she sent can be located and retrieved, even if the juror believed that she had ‘deleted’ them. The judge shall also consider, for example, whether the contents of any responsive e-mails can be determined through the records of the [I]nternet mail service provider or administrator of the so-called ‘listserv.’"

Scrushy’s attorneys argue that in Guisti II the higher court "ordered the trial court to take the actions Scrushy sought in order to obtain information regarding e-mails from third parties, including Internet Service Providers.Guisti I and II provide the proper response to the Remmer v. United States duty to explore "the entire picture." The trial court here failed that duty.

If the case gets remanded back to the district court Scrushy’s attorney’s want a different judge. This is just the tip of the iceberg. Most of it is rehash to anyone who’s waded through all the court documents before. I will effort to break down the rest of it probably later this week.

Note of caution to our national media friends, don’t even start to say none of these issues were covered before now.