Scrushy lawyers want juror e-mails investigated

Published 7:52 pm Friday, July 25, 2008

MONTGOMERY – A federal appeals court has been asked to appoint a special master to investigate e-mails purportedly sent between two jurors in the trial of former Alabama Gov. Don Siegelman and ex-HealthSouth CEO Richard Scrushy, including one calling politicians “scum.”

Scrushy’s attorneys filed a motion this week asking the 11th U.S. Circuit Court of Appeals to name a special master to hold hearings and determine the source and authenticity of the purported juror e-mails. The defense contends they could be grounds for a mistrial.

Scrushy’s motion comes after a U.S. Justice Department official set off a round of stinging criticism from Siegelman supporters with a disclosure concerning the e-mails. The Justice official acknowledged that the Siegelman and Scrushy defense team was not informed when the trial judge was told that postal inspectors, investigating at the behest of prosecutors, determined the e-mails were bogus.

Defense lawyers say the inspectors’ review of the e-mails was superficial.

The jury found Siegelman and Scrushy guilty of bribery and other charges in a government corruption case in June 2006.

The purported e-mails were cited by attorneys for Siegelman and Scrushy in motions asking that the jury verdict be overturned. U.S. District Judge Mark Fuller rejected the original motion. Attorneys have renewed the claim of jury misconduct in appeals of the convictions to the appellate court.

The purported e-mails were sent anonymously to defense attorneys. One was dated June 25, 2006, four days before jurors returned the guilty verdict. The e-mails included misspellings, abbreviations commonly used in e-mail and text messaging, and some referred to Scrushy as “pastor,” a reference to his Christian-themed television program, where he often preached.

According to court records, the June 25 e-mail read: “articles usent outstanding! Gov & pastor up s— creek. good thing no one likes them anyway. all public officials r scum; espically this 1. pastor is reall a piece of work.”

Another purported e-mail indicated jurors were doing research on their own, in violation of the judge’s orders. It read: “keeping pushing on ur side. did not understand ur thoughts on statue but received links.”

In the motion, Scrushy’s attorneys said it’s important for the appellate judges to know more about the e-mails before deciding the appeals of the two defendants.

“The e-mails are so pernicious to the concept of a fair trial that a fair appellate decision requires knowing whether they are real,” the motion said.

In a July 8 letter to defense lawyers made public this week, the head of the Justice Department’s appellate division, Patty Merkamp Stemler, wrote that while Siegelman’s mistrial proceedings were pending, acting U.S. Attorney Louis Franklin asked U.S. postal inspectors to try to determine who sent the e-mails through the mail to defense attorneys. Stemler said

U.S. Marshals later informed Fuller that the inspectors concluded the e-mails were fakes, but that information was never shared with the defense lawyers.

Franklin did not immediately return a call seeking comment Friday.

Scrushy’s chief attorney, Art Leach, said the Justice Department’s investigation occurred at about the same time defense attorneys were asking Fuller to investigate the purported e-mails.

“We want to get to the truth,” Leach said Friday.

“Having the government conduct an investigation that was clearly superficial is not the way it ought to be done,” Leach said. “If the e-mails are confirmed to be legitimate, we are entitled to a new trial.”

Don Cochran, a criminal law professor at Samford University and a former federal prosecutor, said it would be unusual for appellate judges to appoint a special master to investigate this type of issue.

“I can’t think of a time in any case I’ve done that they’ve done that,” Cochran said Friday. “But courts on all levels have the ability to do that.”

Cochran said a special master can be another judge or a lawyer. He said he has known of cases where law professors have served as special masters.

Attached to Scrushy’s motion was a statement from a computer forensic specialist, Phillip Hampton, owner of LogicForce Consulting of Nashville, Tenn. He said the postal inspector’s investigation was apparently based on a visual inspection of the e-mail copies compared to actual e-mails sent from the computers of two jurors.