Saturday, December 2, 2006
The argument about the conduct of the jury in the corruption prosecution of former HealthSouth CEO Richard Scrushy and former Alabama Governor Don Siegelman continues to play out in the federal courthouse in Montgomery, Alabama. Scrushy and Siegelman are seeking a new trial because two jurors admitted during an evidentiary hearing that they reviewed information on the internet about the case, including downloading a copy of the indictment that was available on the District Court's website but was different from the one sent to the jury during its deliberations. A brief filed by Siegelman argues,
This Court cannot reach any conclusion other than that absent Juror 7 and 40's improper downloading of the wrong Indictments and their use of these Indictments during jury deliberations, this jury would have either acquitted Governor Siegelman or at least hung on the few Counts on which Governor Siegelman was convicted.
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The overwhelming evidence is that Jurors 7 and 40 - the only two jurors to grant public interviews following the trial, the only two jurors to repeatedly and deliberately violate this Court's Orders, and the only two jurors to conduct Internet research throughout this trial - were the two jurors that led jury deliberations and orchestrated this verdict. By their actions, Governor Siegelman was deeply prejudiced by the jury's consideration of extrinsic evidence that was not subject to the Court's "full judicial protection of [Governor Siegelman's constitutional] right of confrontation, of cross-examination, and of counsel." Farese v. United States, 428 F.2d 178, 180 (5th Cir. 1970); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984). The Government cannot prove that Jurors 7 and 40's misconduct was harmless, and Governor Siegelman is entitled to a new trial.
Needless to say, the government takes quite a different view of what effect, if any, the jurors' conduct had on the outcome of the case. If the District Court denies the motion for a new trial, the issue of juror misconduct will be a featured issue on an appeal to the Eleventh Circuit. A blog on WFSA Channel 12 in Montgomery has an extensive report on the brief (here).
On the HealthSouth front, Scrushy and the company agreed to settle their issues over competing claims by each side. The company obtained an order directing him to return $52 million in bonus payments (plus interest) he received while HealthSouth's earnings and income were inflated through the accounting fraud, while Scrushy won an arbitration award requiring the company to pay $21 million of his attorney's fees in the fraud prosecution in which he was acquitted. The agreement provides that Scrushy will pay HealthSouth $31 million. In addition to the criminal case in Montgomery, Scrushy still faces an SEC securities fraud civil case and shareholder suits. Don't look for any of these fights to end soon. An AP story (here) discusses the settlement between HealthSouth and Scrushy. (ph -- thanks to a blog reader for passing along the jury information)