Friday, July 13, 2007
Each week seems to bring a new twist in the case of former HealthSouth CEO Richard Scrushy and former Alabama Governor Don Siegelman. The two men recently received substantial prison terms (82 and 88 months, respectively), and were taken into custody immediately to begin serving their sentences rather than being given a reporting date after the hearing, which is common in white collar crime cases. As part of the appeal of the convictions, Scrushy's lawyers have taken the unusual step of filing a motion (available below) in the Eleventh Circuit asking the court to issue subpoenas to internet service providers to secure what counsel believes are e-mails between two members of the jury during the trial and deliberations that could help establish a claim of juror misconduct. The e-mails, which appeared mysteriously after the conviction, were the subject of hearings before the district court, which found that they could not be authenticated and therefore denied the new trial motion based on them. Now, Scrushy is asking for the subpoenas to preserve the evidence in case they can be authenticated, which could result in a new trial or at least another evidentiary hearing.
The problem with the request is that it is unprecedented, as best I can tell. Federal Rule of Criminal Procedure 17(c) governs the issuance of subpoenas, and all the reported cases I have seen focus on grand jury subpoenas and trial subpoenas -- no case discusses a court of appeals authorizing the issuance of a subpoena as part of its own proceeding. The governing standard for issuance of a subpoena depends on the stage of the case. For a grand jury subpoena, the documents need only be relevant to the grand jury's investigation, while a trial subpoena can only be issued for documents and objects that will be admissible under the evidence rules. Rule 17(c) clearly does not contemplate an appellate court issuing a subpoena, because it states that a court may direct the production of the materials "at a time prior to the trial or prior to the time when they are to be offered in evidence . . . ." It is not clear what standard the Eleventh Circuit would even apply to determine whether to issue the subpoena, assuming it finds it has the authority to do so under Rule 17(c) Appellate courts do not make factual findings, as a general matter, and the requested subpoena is not for admissible evidence but to preserve evidence if the court decides to remand the case for further consideration of the e-mail issue. As an alternative, Scrushy's brief relies on the All Writs Act, 28 U.S.C. Sec. 1651, which authorizes a court to issue "all writs necessary or appropriate in aid of their respective jurisdictions . . . ." While courts have broad authority under this provision, Scrushy's lawyers are requesting something that is unusual, if not unique, in a criminal appeal.
According to Scrushy's brief, he has been designated for assignment to the Beaumont, Texas, federal correctional complex, which includes low, medium, and high security facilities. For a complete review of the motion, check out WSFA12 (here). (ph)